PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

PATRICK DWAYNE MURPHY, 

 Petitioner - Appellant, 

v. 

TERRY ROYAL, Warden, Oklahoma 

State Penitentiary, 

 Respondent - Appellee. 

------------------------------ 

MUSCOGEE (CREEK) NATION; 

SEMINOLE NATION OF OKLAHOMA; 

UNITED KEETOOWAH BAND OF 

CHEROKEE INDIANS IN OKLAHOMA, 

 Amici Curiae. 

Nos. 07-7068 & 15-7041 

_________________________________ 

APPEALS FROM THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF OKLAHOMA 

(D.C. Nos. 6:03-CV-00443-RAW-KEW and 6:12-CV-00191-RAW-KEW)

_________________________________ 

Patti Palmer Ghezzi, Assistant Federal Public Defender (Randy A. Bauman and Michael 

W. Lieberman, Assistant Federal Public Defenders, with her on the briefs), Office of the 

Federal Public Defender, Oklahoma City, Oklahoma, appearing for Appellant. 

Jennifer L. Crabb, Assistant Attorney General (E. Scott Pruitt, Attorney General, and 

Jared Haines, Assistant Attorney General, with her on the brief), Office of the Attorney 

General for the State of Oklahoma, Oklahoma City, Oklahoma, appearing for Appellee. 

David A. Giampetroni, Kanji & Katzen, PLLC, Ann Arbor, Michigan (Kevin Dellinger, 

Attorney General, and Lindsay Dowell, Assistant Attorney General, Muscogee (Creek) 

FILED 

United States Court of Appeals

Tenth Circuit 

August 8, 2017

Elisabeth A. Shumaker 

Clerk of Court
- ii - 

Nation, Okmulgee, Oklahoma; D. Michael McBride III, Attorney General, and Christine 

Vaughn, Assistant Attorney General, Seminole Nation of Oklahoma, Crowe & Dunleavy, 

Tulsa, Oklahoma; and Philip H. Tinker and Riyaz A. Kanji, Kanji & Katzen, Ann Arbor, 

Michigan, with him on the briefs), appearing for amici Muscogee (Creek) Nation and 

Seminole Nation of Oklahoma. 

Klint A. Cowan, Fellers, Snider, Blankenship, Bailey & Tippens, P.C., Oklahoma City, 

Oklahoma, appearing for amicus United Keetoowah Band of Cherokee Indians in 

Oklahoma. 

_________________________________ 

Before TYMKOVICH, Chief Judge, MATHESON, and PHILLIPS, Circuit Judges. 

_________________________________ 

MATHESON, Circuit Judge. 

_________________________________ 

 
- iii - 

TABLE OF CONTENTS 

I. BACKGROUND ........................................................................................................... 2

A. Factual History .......................................................................................................... 3

B. Procedural History ..................................................................................................... 5

1. Trial ....................................................................................................................... 5

2. Direct appeal ......................................................................................................... 6

3. First Application for State Post-Conviction Relief ............................................... 6

4. Filing of First Application for Federal Habeas Relief .......................................... 7

5. Second Application for State Post-Conviction Relief .......................................... 8

a. Evidentiary hearing ................................................................................... 9

b. Appeal to the OCCA ............................................................................... 11

c. Atkins trial and appeal ............................................................................. 14

6. Federal District Court Proceedings on First Federal Habeas Application .......... 14

7. First Appeal to the Tenth Circuit (No. 07-7068) ................................................ 16

8. Second Application for Federal Habeas Relief ................................................... 16

9. This Consolidated Appeal ................................................................................... 16

II. LEGAL BACKGROUND ........................................................................................... 17

A. Standard of Review ................................................................................................. 17

1. The Parties’ Dispute ............................................................................................ 18

2. The AEDPA Standard ......................................................................................... 19

a. Overview ................................................................................................. 20

b. The “contrary to” clause .......................................................................... 21

B. Indian Country Jurisdiction ..................................................................................... 23

1. Reservations ........................................................................................................ 23

2. The Major Crimes Act ........................................................................................ 24

3. Indian Country .................................................................................................... 27

4. Reservation Disestablishment and Diminishment .............................................. 29

a. Presumption against disestablishment and diminishment ........................ 30

b. The policy of allotment ........................................................................... 32
- iv - 

c. Solem factors ........................................................................................... 34

III.  DISCUSSION ............................................................................................................. 37

A. Clearly Established Federal Law ............................................................................. 37

1. Solem—Clearly Established Law in 2005 .......................................................... 38

2. The State’s Arguments ........................................................................................ 40

B. The OCCA Decision—Contrary to Clearly Established Federal Law .................... 41

1. The OCCA’s Merits Decision ............................................................................. 42

2. The OCCA’s Decision Was Contrary to Solem .................................................. 46

a. No citation to Solem ................................................................................ 46

b. Failure to apply Solem ............................................................................. 47

c. The State’s arguments ............................................................................. 49

C. Exclusive Federal Jurisdiction ................................................................................. 52

1. Additional Legal Background ............................................................................. 54

a. Supreme Court authority ......................................................................... 54

b. Tenth Circuit authority ............................................................................ 56

2. Additional Factual Background—Creek Nation History .................................... 58

a. Original homeland and forced relocation ................................................. 58

b. Nineteenth century diminishment ............................................................ 60

c. 1867 Constitution and government .......................................................... 61

d. Early congressional regulation of modern-day Oklahoma ....................... 61

e. The push for allotment ............................................................................. 62

f. Allotment and aftermath .......................................................................... 64

g. Creation of Oklahoma ............................................................................. 65

h. Away from allotment ............................................................................... 66

i. Public Law 280 ........................................................................................ 67

j. A new Creek Constitution ....................................................................... 68

k. Our decision in Indian Country, U.S.A. ................................................... 69

3. Applying Solem ................................................................................................... 70

a. Step One: Statutory Text ......................................................................... 70
- v - 

i. The statutes .......................................................................................... 73

1) Act of March 3, 1893, ch. 209, 27 Stat. 612 (“1893 Act”) .............. 73

2) Act of June 10, 1896, ch. 398, 29 Stat. 321 (“1896 Act”) ............... 75

3) Act of June 7, 1897, ch. 3, 30 Stat. 62 (“1897 Act”) ....................... 75

4) “Curtis Act,” ch. 517, 30 Stat. 495 (June 28, 1898) ......................... 76

5) “Original Allotment Agreement,” ch. 676, 31 Stat. 861 (March 1, 

1901) ............................................................................................... 77

a) Allotment .................................................................................... 77

b) Town sites ................................................................................... 80

c) Lands reserved for tribal purposes .............................................. 81

d) Future governance ....................................................................... 81

6) “Supplemental Allotment Agreement,” ch. 1323, 32 Stat. 500 (June 

30, 1902) ......................................................................................... 84

7) “Five Tribes Act,” ch. 1876, 34 Stat. 137, April 26, 1906 ............... 85

8) “Oklahoma Enabling Act,” ch. 3335, 34 Stat. 267 (June 16, 1906) . 89

ii. Analysis ............................................................................................... 90

1) No hallmarks of disestablishment or diminishment ......................... 91

2) Signs Congress continued to recognize the Reservation .................. 95

3) The State’s title and governance arguments .................................... 97

a) Title ............................................................................................ 98

b) Governance ................................................................................. 99

b. Step Two: Contemporary Historical Evidence ....................................... 101

i. The State’s evidence ........................................................................... 103

1) 1892 Senate debate ........................................................................ 104

2) 1894 Senate committee report ....................................................... 105

3) Other sources ................................................................................ 107

ii. Mr. Murphy’s and the Creek Nation’s evidence ................................. 108

1) 1894 Dawes Commission records .................................................. 108

2) 1895 Dawes letter .......................................................................... 108
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3) 1900 Attorney General opinion ..................................................... 109

4) Post-allotment evidence ................................................................ 110

iii. Analysis ............................................................................................. 112

c. Step Three: Later History ..................................................................... 113

i. Treatment of the area .......................................................................... 114

1) Congress ....................................................................................... 114

2) Executive ...................................................................................... 117

3) Federal courts ................................................................................ 118

4) Oklahoma ...................................................................................... 120

5) Creek Nation ................................................................................. 123

ii. Demographics .................................................................................... 124

iii. Step-three concluding comment ......................................................... 125

IV.  CONCLUSION ......................................................................................................... 126
- 1 - 

Patrick Dwayne Murphy asserts he was tried in the wrong court. He 

challenges the jurisdiction of the Oklahoma state court in which he was convicted of 

murder and sentenced to death. He contends he should have been tried in federal 

court because he is an Indian and the offense occurred in Indian country. We agree 

and remand to the district court to issue a writ of habeas corpus vacating his 

conviction and sentence. 

 The question of whether the state court had jurisdiction is straightforward but 

reaching an answer is not. We must navigate the law of (1) federal habeas corpus review 

of state court decisions, (2) Indian country jurisdiction generally, (3) Indian reservations 

specifically, and (4) how a reservation can be disestablished or diminished. Our 

discussion on each of these topics reaches the following conclusions. 

 First, we assume that a federal habeas court must give deference to a state court’s 

determination that it had jurisdiction. Nonetheless, in this case, the Oklahoma court 

applied a rule that was contrary to clearly established Supreme Court law. We must 

apply the correct law. 

 Second, when an Indian is charged with committing a murder in Indian country, 

he or she must be tried in federal court. Mr. Murphy is a member of the Muscogee 

(Creek) Nation. Because the homicide charged against him was committed in Indian 

country, the Oklahoma state courts lacked jurisdiction to try him. 

 Third, Congress has defined Indian country broadly to include three categories of 

areas: (a) Indian reservations, (b) dependent Indian communities, and (c) Indian 

allotments. See 18 U.S.C. § 1151. The reservation clause concerns us here. All land 
- 2 - 

within the borders of an Indian reservation—regardless of whether the tribe, individual 

Indians, or non-Indians hold title to a given tract of land—is Indian country unless 

Congress has disestablished the reservation or diminished its borders. 

 Fourth, only Congress may disestablish or diminish an Indian reservation. 

Applying the Supreme Court’s test to determine whether Congress has done so as to the 

Creek Reservation, we conclude it has not. 

 Mr. Murphy and the State agree that the offense in this case occurred within the 

Creek Reservation if Congress has not disestablished it. We conclude the Reservation 

remains intact and therefore the crime was committed in Indian country. Mr. Murphy, a 

Creek citizen, should have been charged and tried in federal court.1

 

I. BACKGROUND 

 We begin with the facts of the crime as presented by the Oklahoma Court of 

Criminal Appeals (“OCCA”).2

 We then discuss the procedural journey Mr. Murphy’s 

case has traveled. 

 1

 Mr. Murphy raises eight issues in this appeal. Because we resolve his first 

issue by concluding the state courts lacked jurisdiction over this case, we do not 

address his other seven issues. 

2 See 28 U.S.C. § 2254(e)(1) (providing federal habeas court must presume 

state court’s factual determinations are correct); see also Al-Yousif v. Trani, 779 F.3d 

1173, 1181 (10th Cir. 2015) (“The presumption of correctness also applies to factual 

findings made by a state court of review based on the trial record.” (quotations 

omitted)). 
- 3 - 

A. Factual History 

In August 1999, Mr. Murphy lived with Patsy Jacobs. Murphy v. State, 47 

P.3d 876, 879 (Okla. Crim. App. 2002). Ms. Jacobs was previously in a relationship 

with the victim in this case, George Jacobs, and had a child with him, George, Jr. Id.

at 879-80. Mr. Murphy had an argument with her about Mr. Jacobs and said he was 

“going to get” Mr. Jacobs and his family. Id. at 879. 

 On August 28, 1999, Mr. Jacobs spent the day drinking with his cousin, Mark 

Sumka. Id. Around 9:30 p.m., Mr. Sumka was driving to a bar in Henryetta, 

Oklahoma, with Mr. Jacobs passed out in the back seat. Id. Mr. Murphy was driving 

on the same road in the opposite direction with two passengers—Billy Long and 

Kevin King. Id. After the cars passed each other, they stopped. Id. Mr. Murphy 

backed up and told Mr. Sumka to turn off the car, but Mr. Sumka drove off. Id.

 Mr. Murphy and his passengers pursued and forced Mr. Sumka off Vernon 

Road, which runs through an area that is “remarkably rural [and] heavily treed . . . 

without any sort of improvement . . . except perhaps a rickety barbed wire fence.” 

Murphy v. State, 124 P.3d 1198, 1206 (Okla. Crim. App. 2005); see also 47 P.3d at 

879. 

Mr. Murphy exited the car and confronted Mr. Sumka. 47 P.3d at 879. Mr. 

Long and Mr. King began hitting Mr. Jacobs. Id. at 880. Mr. Murphy approached 

Mr. Jacobs, trading places with Mr. Long, who went over and hit Mr. Sumka. Id. at 

880. Mr. Sumka briefly ran off but came back about five minutes later. Id. 
- 4 - 

When he did, he saw Mr. Murphy throw a folding knife into the woods, and he 

saw Mr. Jacobs lying in a ditch along the road, barely breathing. Id. Mr. Murphy 

and his companions threatened to kill Mr. Sumka and his family if he said anything, 

and Mr. King struck Mr. Sumka in the jaw. Id. 

Following Mr. Murphy’s instructions, Mr. Sumka left the scene with the other 

men. Id. During the car ride away, they told Mr. Sumka they had cut Mr. Jacobs’s 

throat and chest and had severed his genitals. Id. The group later went to Mr. King’s 

home, where Mr. Jacobs’s son, George, Jr., was staying, in an apparent attempt to kill 

him. Id. Mr. King’s mother intervened and “thwarted [their] plan.” Id. Mr. King 

went inside, and the rest of the group left. Id. 

 A passerby found Mr. Jacobs in the ditch with his face bloodied and slashes 

across his chest and stomach. Id. His genitals had been cut off and his throat slit. 

Id. According to a state criminalist, Mr. Jacobs had been dragged off the road after 

his genitals were severed. Id. His neck and chest had been cut on the side of the 

road, where he bled to death over the course of four to twelve minutes, though it may 

have taken longer. Id. 

After Mr. Murphy returned home and confessed to Ms. Jacobs, he was 

arrested. Id. The State of Oklahoma charged him with Mr. Jacobs’s murder and 

sought the death penalty. 
- 5 - 

B. Procedural History 

 A jury convicted Mr. Murphy of murder in Oklahoma state court and imposed the 

death penalty. His appeal and post-conviction proceedings have since moved through the 

Oklahoma and federal courts as recounted below. 

 Although the overall history of Mr. Murphy’s case is complex, the history of the 

jurisdictional claim we resolve here can be succinctly summarized. After Mr. Murphy’s 

conviction and death sentence were affirmed on direct appeal, he applied for state postconviction relief in 2004, arguing the Oklahoma state courts had lacked jurisdiction to try 

him. The OCCA ordered an evidentiary hearing. Following the hearing, the state district 

court concluded Oklahoma’s jurisdiction was proper because the crime did not occur in 

Indian country. The OCCA affirmed that conclusion in 2005. Mr. Murphy then sought 

federal habeas relief, but the federal district court denied relief in 2007. Mr. Murphy now 

appeals. 

 In the interest of thoroughness, and because Mr. Murphy’s case has until now 

proceeded in a disjointed fashion, we provide a complete procedural history below. 

1. Trial

 In 2000, a jury in McIntosh County, Oklahoma, convicted Mr. Murphy of first 

degree murder under Okla. Stat. tit. 21 § 701.7(A) (1999). In the penalty phase, the jury 

found aggravating circumstances supported the death penalty. Murphy, 47 P.3d at 879. 

In accordance with the jury’s verdict, the trial court imposed a death sentence. Id.
- 6 - 

2. Direct appeal 

 Mr. Murphy raised a variety of trial issues in a direct appeal to the OCCA. On 

May 22, 2002, the OCCA affirmed his conviction. Id. at 888. The court also performed 

a statutorily mandated sentencing review in which the court considered the aggravating 

circumstances in light of the mitigating evidence, including Mr. Murphy’s “mild mental 

retardation,” and concluded his death sentence was “factually substantiated and 

appropriate.” Id. at 887-88.3

 

3. First Application for State Post-Conviction Relief 

On February 7, 2002, while his direct appeal was pending in the OCCA, Mr. 

Murphy filed his first application for state post-conviction relief. See Murphy v. State, 54 

P.3d 556, 560 (Okla. Crim. App. 2002). He asked that his application be held in 

abeyance, id. at 566, until the Supreme Court decided its then-pending case of Atkins v. 

Virginia, 536 U.S. 304 (2002), which addressed whether the Eighth Amendment 

prohibits the execution of “mentally retarded persons,” id. at 306. 

On June 20, 2002, about a month after the OCCA affirmed on direct appeal, the 

Supreme Court held in Atkins that the Eighth Amendment “places a substantive 

restriction on the State’s power to take the life of a mentally retarded offender.” Id. at 

321 (quotations omitted). Atkins “[left] to the States the task of developing appropriate 

ways to enforce the constitutional restriction.” Id. at 317 (brackets and quotations 

omitted). 

 3

 On April 21, 2003, the U.S. Supreme Court denied Mr. Murphy’s petition for a 

writ of certiorari. See Murphy v. Oklahoma, 538 U.S. 985 (2003). 
- 7 - 

 On September 4, 2002, the OCCA denied relief on all of the issues Mr. Murphy 

had raised in his first application for state post-conviction relief except his Atkins claim. 

54 P.3d at 570. The OCCA used Mr. Murphy’s case to adopt new, post-Atkins

procedures to shield “mentally retarded” persons from execution. See id. at 567-69. 

These procedures, the OCCA explained, would govern “until such time” as the Oklahoma 

legislature enacted an alternative framework. Id. at 568. The OCCA remanded to the 

state district court “for an evidentiary hearing on the sole issue of [Mr. Murphy’s] claim 

of mental retardation in accordance with” the OCCA’s newly announced procedures. Id.

at 570. 

 On remand, the state district court concluded Mr. Murphy “had not raised 

sufficient evidence to create a fact question on the issue of mental retardation.” Murphy 

v. State, 66 P.3d 456, 458 (Okla. Crim. App. 2003). On March 21, 2003, the OCCA 

ruled this conclusion was “not clearly erroneous” and affirmed Mr. Murphy’s death 

sentence. Id. at 458, 461. 

4. Filing of First Application for Federal Habeas Relief 

 On March 5, 2004, Mr. Murphy filed a federal habeas application under 28 U.S.C. 

§ 2254 asserting 13 grounds for relief. 

 On August 30, 2004, the U.S. District Court for the Eastern District of Oklahoma 

concluded Mr. Murphy’s application contained some claims that had not been exhausted 

in Oklahoma state court. The federal district court directed Mr. Murphy to drop his 

unexhausted claims. 
- 8 - 

On September 10, 2004, Mr. Murphy did so by filing an amended application 

containing eight claims, all of which were exhausted. His amended application remained 

pending in the federal district court while he pursued additional relief in state court.4

 

5. Second Application for State Post-Conviction Relief 

On March 29, 2004—shortly after he filed his original federal habeas 

application—Mr. Murphy returned to state court and filed a second application for postconviction relief to exhaust claims he had dropped from his federal habeas application. 

His second application for state post-conviction relief alleged: 

1. Oklahoma lacked jurisdiction because the Major Crimes Act gives the 

federal government exclusive jurisdiction to prosecute murders committed 

by Indians in Indian country.5

2. The OCCA’s earlier denial of a jury trial on the issue of his “mental 

retardation” had violated his constitutional rights. 

3. Oklahoma’s lethal injection protocol violated the Eighth Amendment. 

 

 4

 The same day he filed his amended application, Mr. Murphy launched a 

short-lived appeal. He sought our review of the district court’s order denying his 

request to stay the federal proceedings while he pursued his unexhausted claims in 

state court. Another panel of this court dismissed the appeal for lack of jurisdiction. 

See Murphy v. Mullin, No. 04-7094 (10th Cir. Dec. 16, 2004). 

5

 In Oklahoma, “issues of subject matter jurisdiction are never waived and can 

therefore be raised on a collateral appeal.” Wallace v. State, 935 P.2d 366, 372 (Okla. 

Crim. App. 1997); see also Triplet v. Franklin, 365 F. App’x 86, 95 (10th Cir. 2010) 

(unpublished) (recognizing that, in Oklahoma, issues of subject matter jurisdiction are not 

waivable and can be raised for the first time in collateral proceedings); Wackerly v. State, 

237 P.3d 795, 797 (Okla. Crim. App. 2010) (considering jurisdictional claim that crime 

occurred on federal land raised in prisoner’s second application for post-conviction 

relief); Magnan v. State, 207 P.3d 397, 402 (Okla. Crim. App. 2009) (considering Indian 

country jurisdictional challenge and explaining subject matter jurisdiction may be 

challenged at any time). 
- 9 - 

See Murphy, 124 P.3d at 1200, 1208-09. The OCCA ordered an evidentiary hearing on 

the jurisdictional claim. Id. at 1199.6

 

a. Evidentiary hearing 

The state district court held a one-day evidentiary hearing. Id. at 1201. Mr. 

Murphy argued Oklahoma lacked jurisdiction because the crime occurred in Indian 

country and 18 U.S.C. § 1153 provides for exclusive federal jurisdiction over murders 

committed by Indians in Indian country.7

 The parties agreed that Mr. Murphy and Mr. 

Jacobs, both members of the Muscogee (Creek) Nation, were Indians, but they disputed 

whether the crime occurred in Indian country, a term defined in 18 U.S.C. § 1151: 

 6

 The OCCA ordered that the hearing answer the following six questions: 

(1) Where exactly did the crime occur? 

(2) Who “owns” title to the property upon which the crime occurred? 

(3) If some or all of the crime occurred on an easement, how does 

that factor into the ownership question? 

(4) How much of the crime occurred, if any, on an easement? 

(5) Did the crime occur in “Indian County,” as defined by 18 U.S.C. 

§ 1151? 

(6) Is jurisdiction over the crime exclusively federal? 

124 P.3d at 1201 n.3 (paragraph breaks added). 

7

 “Any Indian who commits against the person or property of another Indian or 

other person any of the following offenses, namely, murder . . . within the Indian 

country, shall be subject to the same law and penalties as all other persons 

committing any of the above offenses, within the exclusive jurisdiction of the United 

States.” 18 U.S.C. § 1153(a). 
- 10 - 

[T]he term “Indian country” . . . means 

(a) all land within the limits of any Indian reservation under the jurisdiction 

of the United States Government, notwithstanding the issuance of any 

patent, and, including rights-of-way running through the reservation, 

(b) all dependent Indian communities within the borders of the United 

States whether within the original or subsequently acquired territory 

thereof, and whether within or without the limits of a state, and 

(c) all Indian allotments, the Indian titles to which have not been 

extinguished, including rights-of-way running through the same. 

18 U.S.C. § 1151 (paragraph breaks added). An area qualifies as Indian country if it fits 

within any of these three categories. Mr. Murphy argued the crime occurred in Indian 

country under all three categories.8

 

In December 2004, the state district court concluded state jurisdiction was proper 

because the crime had occurred on state land. See 124 P.3d at 1200, 1202. The court, 

however, addressed only one of Mr. Murphy’s three theories. Id. at 1207. It concluded 

the land was not an Indian allotment under § 1151(c), but it failed to address whether the 

location was (a) part of the Creek Reservation or (b) part of a dependent Indian 

community. See id. (noting the state district court failed to address these questions 

although the OCCA had “clearly asked” it to do so). Although the state district court 

viewed these matters as outside the scope of the evidentiary hearing, it allowed Mr. 

 8

 In this appeal, however, he argues the location of the crime qualifies under 

the reservation clause of subsection (a) and the allotment clause of subsection (c). 

Because we agree with him that the crime occurred on an Indian reservation, we do 

not reach his allotment argument. 
- 11 - 

Murphy to make an offer of proof on his other two theories. Id.9

 The court ultimately 

ruled the State’s exercise of criminal jurisdiction was proper and denied relief. Id. at 

1202. 

b. Appeal to the OCCA 

 Mr. Murphy appealed to the OCCA. On December 7, 2005, the OCCA denied 

relief on his jurisdictional and Eighth Amendment claims but granted limited relief on the 

Atkins claim. See id. at 1209. 

On the jurisdictional issue, the OCCA found the record did not support some 

of the state district court’s determinations, but it affirmed the ultimate determination 

that Oklahoma’s jurisdiction was proper. Id. at 1201-08. The OCCA accepted the 

state district court’s findings regarding where the crime unfolded, but it rejected the 

court’s conclusion that Oklahoma owned the road and the ditch abutting it. Id. at 

1202. Rather, the OCCA concluded, Oklahoma’s “interest in the area in question is 

in the nature of an easement or right-of way.” Id. The Creek Nation had long owned 

 9

 On the reservation question that concerns us here, Mr. Murphy argued: 

[T]he homicide occurred within the boundaries of the Creek Nation, 

which qualifies as Indian county because of its status as a reservation 

under federal jurisdiction. Unlike some other tribes, the Creek treaty 

lands were not disestablished or diminished by the acts of allotment and 

other federal legislation adopted in the early 20th century. As of 1999, 

the entirety of the historic Creek Nation lands thus remained Indian 

country, regardless of non-Indian ownership of particular tracts within 

those boundaries. 

Def. Tr. Br. at 12 (filed Nov. 16, 2004), State Post-Conviction Record, OCCA Case 

No. PCD-2004-321, Vol. 1 at 66 (citing Solem v. Bartlett, 465 U.S. 463 (1984)). 
- 12 - 

the land in question when, under a statute enacted in 1902, Oklahoma received the 

right to build a public highway. Id. at 1203. Tracing the history of the specific tract 

where the crime occurred, the OCCA concluded it had passed in the early twentieth 

century from the Creek Nation to Lizzie Smith, a member of the Creek Nation, and 

that all interest in the land—except for a restricted 1/12 mineral interest—had since 

been conveyed to non-Indians. See id. at 1204-06. The OCCA concluded this Indian 

interest was insufficient to qualify the land as an Indian allotment under § 1151(c): 

“A fractional interest in an unobservable mineral interest is insufficient contact with 

the situs in question to deprive the State of Oklahoma of criminal jurisdiction.” Id. at 

1206.10

The OCCA criticized the state district court for not addressing whether the crime 

was committed within the Creek Reservation or within a dependent Indian community, 

but it concluded the error was harmless because Mr. Murphy had been afforded a chance 

“to make an extended offer of proof.” Id. at 1207. The OCCA said that the evidence, 

had it been admitted, was “insufficient” to show “that the tract in question qualifies as a 

reservation or dependent Indian community.” Id. 

With respect to the reservation theory, the OCCA acknowledged our decision in 

Indian Country, U.S.A., Inc. v. Oklahoma ex rel. Oklahoma Tax Commission, 829 F.2d 

967 (10th Cir. 1987), cert. denied, 487 U.S. 1218 (1988), where we recognized the Creek 

 10 We discuss the OCCA’s decision regarding Mr. Murphy’s allotment theory 

under § 1151(c) because it forms part of the procedural history of this case, but we 

offer no comment on the merits of the OCCA’s decision on this front. Our opinion is 

limited to the reservation question under § 1151(a). 
- 13 - 

Reservation still exists but reserved the question whether its 1866 boundaries remain 

intact, 829 F.2d at 975-76. See 124 P.3d at 1207-08 (discussing Indian Country, U.S.A.). 

The OCCA stated: “If the federal courts remain undecided on this particular issue, we 

refuse to step in and make such a finding here.” Id. at 1208.11 

As for the two non-jurisdictional issues Mr. Murphy raised in his second postconviction application, the OCCA granted limited relief on one and denied relief on the 

other. First, it reversed course on the Atkins issue and found Mr. Murphy had provided 

sufficient evidence to create a factual question for a jury on his “mental retardation 

claim.” Id. It therefore ordered the case remanded. Id. Second, the OCCA ruled Mr. 

Murphy had waived his Eighth Amendment challenge to Oklahoma’s lethal injection 

protocol by failing to raise it earlier. Id. at 1209. 

In summary, the OCCA rejected the jurisdictional challenge and the Eighth 

Amendment claim, but it remanded for a jury trial on Mr. Murphy’s Atkins claim.12

 11 The OCCA also rejected the dependent Indian community theory under 

§ 1151(b). See 124 P.3d at 1208. That ruling is not before us because Mr. Murphy 

now raises only the allotment and reservation theories. 

12 Mr. Murphy petitioned the U.S. Supreme Court for certiorari on two aspects of 

the OCCA’s jurisdictional decision: (1) whether Oklahoma lacked jurisdiction because 

the crime occurred on a restricted Indian allotment under § 1151(c) and (2) whether 

Oklahoma lacked jurisdiction because the crime occurred within the limits of an Indian 

reservation under § 1151(a). The Supreme Court called for the views of the United 

States, and the Solicitor General filed a brief arguing the Court should deny Mr. 

Murphy’s petition because the OCCA had correctly determined that the crime was not 

within the exclusive jurisdiction of the federal government. See Brief for the United 

States as Amicus Curiae, Murphy v. Oklahoma, No. 05-10787, 2007 WL 1319320, at *4. 

The Supreme Court denied Mr. Murphy’s petition for certiorari without comment. 

Murphy v. Oklahoma, 551 U.S. 1102 (2007). 
- 14 - 

c. Atkins trial and appeal 

 Following a September 2009 trial in the state district court, a jury in McIntosh 

County rejected Mr. Murphy’s claim of “mental retardation.” Murphy v. State, 281 P.3d 

1283, 1287 (Okla. Crim. App. 2012) (discussing jury trial). But the trial judge declared a 

mistrial based on an error of state law and reset the case for a new trial. Id.13

Before the re-trial, the State moved to terminate further proceedings. A state 

statute had supplanted the OCCA’s Atkins procedures and provided that no defendant 

who received an intelligence quotient (“I.Q.”) score of 76 or above could “be considered 

mentally retarded.” Okla. Stat. tit. 21 § 701.10b(C); see also 281 P.3d at 1287-89. 

Because Mr. Murphy had received an I.Q. score of 80 on one test and 82 on another, the 

trial court granted the State’s motion and terminated proceedings on January 27, 2011. 

281 P.3d at 1288. 

Mr. Murphy appealed and raised four propositions of error to the OCCA. Id. at 

1287. On April 5, 2012, the OCCA ruled the district court had properly relied on the new 

state law. Id. at 1289. The OCCA rejected all of Mr. Murphy’s claims, thus concluding 

proceedings on the second post-conviction application. Id. at 1294. 

6. Federal District Court Proceedings on First Federal Habeas Application 

On December 28, 2005, after the OCCA rejected his jurisdictional and Eighth 

Amendment claims but before the conclusion of the Atkins proceedings, Mr. Murphy 

 13 The court declared a mistrial because neither side had been afforded its full 

complement of peremptory challenges—a structural error under Oklahoma law at the 

time. See 281 P.3d at 1287 & n.1. 
- 15 - 

moved to amend his federal habeas application. The district court granted the motion and 

allowed Mr. Murphy to add two newly exhausted claims: (1) the challenge to 

Oklahoma’s jurisdiction, and (2) the Eighth Amendment lethal-injection challenge. 

These two claims were added to Mr. Murphy’s eight previously exhausted federal claims, 

which were still pending. 

On August 1, 2007, the district court entered an opinion and order denying all ten 

claims in Mr. Murphy’s habeas application. Murphy v. Sirmons, 497 F. Supp. 2d 1257, 

1294-95 (E.D. Okla. 2007). 

On the jurisdictional claim, Mr. Murphy argued the crime had occurred in Indian 

country under just two theories: (1) the land was part of the Creek Reservation under 

§ 1151(a) and (2) the land was an Indian allotment under § 1151(c). Id. at 1288. 

Applying the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. 

§ 2254(d), the district court ruled that the OCCA’s decisions against Mr. Murphy on 

these theories were neither contrary to nor an unreasonable application of clearly 

established federal law. See 497 F. Supp. 2d at 1286-92. 

The district court rejected Mr. Murphy’s other claims but granted him three 

certificates of appealability (“COAs”)14 to challenge his counsel’s effectiveness, one of 

the death-eligibility aggravating circumstances, and the trial court’s failure to define life 

without parole for the jury. 

 14 “[A] prisoner who was denied habeas relief in the district court must first 

seek and obtain a COA from a circuit justice or judge” before an appeal can be heard. 

Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); see 28 U.S.C. § 2253(c). 
- 16 - 

7. First Appeal to the Tenth Circuit (No. 07-7068) 

Mr. Murphy appealed to this court. On November 16, 2007, we abated the appeal 

to await resolution of Mr. Murphy’s then-pending Atkins claim in Oklahoma state court. 

8. Second Application for Federal Habeas Relief 

 On April 26, 2012, following the OCCA’s final denial of his Atkins claim, Mr. 

Murphy filed a second § 2254 application in the Eastern District of Oklahoma that 

challenged the OCCA’s resolution of the Atkins issue.15 The district court denied relief. 

Murphy v. Trammell, No. CIV-12-191-RAW-KEW, 2015 WL 2094548, at *13 (E.D. 

Okla. May 5, 2015) (unpublished). 

9. This Consolidated Appeal 

 Mr. Murphy sought to appeal from the district court’s denial of relief on his 

second § 2254 habeas application. We consolidated that appeal (No. 15-7041) with his 

appeal from the denial of his first habeas application (No. 07-7068) to form this case. 

 Mr. Murphy raises eight issues. Because he obtained COAs for each one,16 our 

jurisdiction is proper under 28 U.S.C. § 2253(a), (c)(1)(A). 

 15 The district court treated the application as second and successive and 

transferred it to this court. We concluded that at least a portion of Mr. Murphy’s Atkins

challenge could proceed and ordered a partial remand. In re Murphy, No. 12-7055, at 2 

(10th Cir. Nov. 1, 2012) (unpublished order). 

16 The district court granted Mr. Murphy three COAs and we granted five more. 

The district court granted COAs for Mr. Murphy’s arguments regarding: (1) ineffective 

assistance of counsel, (2) the “heinous, atrocious, or cruel” aggravating circumstance, and 

(3) the trial court’s failure to define “life without parole” for the jury. In June 2015, we 

ordered Mr. Murphy to file a motion for additional COAs across both appeals. We 

granted COAs for his claims regarding: (1) victim-impact statements, (2) Oklahoma’s 

Continued . . . 
- 17 - 

 As to one of the issues—whether Oklahoma or the federal government had 

jurisdiction over the murder case—we granted the motion of the Muscogee (Creek) 

Nation and the Seminole Nation of Oklahoma to file a joint amici brief.17 We likewise 

permitted the United Keetoowah Band of Cherokee Indians in Oklahoma to file an 

amicus brief. The Tribes also participated at oral argument. 

II. LEGAL BACKGROUND 

We conclude the crime occurred on the Creek Reservation and therefore the 

Oklahoma courts lacked jurisdiction. This section addresses the law applicable to the 

jurisdictional issue. We begin with (A) our standard of review and then address (B) the 

substantive law of Indian country jurisdiction. 

A. Standard of Review 

The parties disagree over the standard of review that should apply to Mr. 

Murphy’s jurisdictional claim. The State contends AEDPA’s deferential standard should 

apply. Mr. Murphy disagrees and argues we should review his claim de novo. We begin 

by discussing this disagreement, but we choose not to resolve it because Mr. Murphy 

 

jurisdiction, (3) the district court’s refusal to stay and abate proceedings on his first 

federal habeas application, (4) Oklahoma’s procedural handling of his Atkins claim, and 

(5) cumulative error. Murphy v. Warrior, Nos. 07-7068 & 15-7041, at 1-2 (10th Cir. Jan. 

6, 2016) (unpublished order). All eight issues are properly before us in this appeal, but 

our resolution of the jurisdictional claim obviates the need to address the other seven 

issues. 

17 Because this case concerns the Creek Reservation, we refer to the Tribes’ 

joint brief with the shorthand “Creek Nation Br.” 
- 18 - 

prevails even under AEDPA review. Because we assume the AEDPA standard applies, 

we then go on to describe it. 

1. The Parties’ Dispute 

As we discuss in greater detail below, AEDPA generally requires federal habeas 

courts to defer to state court decisions. Mr. Murphy argues AEDPA does not apply 

when, as here, a state court denies a defendant’s challenge to the state court’s subject 

matter jurisdiction. AEDPA deference, he maintains, “presupposes” the state court had 

jurisdiction to decide a given claim in the first place. Aplt. Br. at 26. Because the 

question of Indian country jurisdiction implicates tribal and federal sovereignty interests, 

he also contends that federal courts, unconstrained by AEDPA, must make the final 

determination over the jurisdictional issue. And he argues that applying AEDPA to 

jurisdictional claims would pose separation-of-powers and other constitutional problems. 

The State responds that nothing in AEDPA says subject matter jurisdiction claims 

should be reviewed de novo. It notes Mr. Murphy has failed to cite a case in support of 

his view that AEDPA does not apply to jurisdictional questions. It argues Mr. Murphy 

has waived any argument against AEDPA’s application because he supported the district 

court’s application of AEDPA below. The State also disputes his constitutional 

arguments. 

We need not decide whether this issue is waivable, whether Mr. Murphy has 

waived it here, or even whether AEDPA is the appropriate standard. We choose to 

assume without deciding that AEDPA applies. 
- 19 - 

We took this approach in Magnan v. Trammell, 719 F.3d 1159 (10th Cir. 2013). 

Both sides agree Magnan left open the question of whether AEDPA applies to Indian 

country jurisdictional claims. Magnan concerned an Indian defendant whom an 

Oklahoma state court had sentenced to death. Id. at 1160-61. The defendant challenged 

the state court’s jurisdiction. Id. at 1163. We assumed without deciding that AEDPA 

applied and concluded that, even under AEDPA’s deferential standard, the OCCA had 

erred in concluding Oklahoma had jurisdiction over the case. Id. at 1160-61, 1164.18 We 

held the crime occurred in Indian country, making jurisdiction exclusively federal. We 

ordered Mr. Magnan released from state custody without resolving the “difficult 

question” of whether AEDPA constrains federal court review of a state court’s 

jurisdictional ruling regarding Indian country. Id. at 1164, 1176-77.19 As in Magnan, we 

can assume without deciding that AEDPA applies because Mr. Murphy is entitled to 

relief even under that formidable standard of review. 

2. The AEDPA Standard 

We first discuss AEDPA’s general framework and then focus on the statute’s 

“contrary to” clause because that provision guides our analysis. 

 18 See also Yellowbear v. Att’y Gen. of Wyo., 380 F. App’x 740, 743 (10th Cir. 

2010) (unpublished) (leaving open the question of whether AEDPA applies and 

concluding on federal habeas review of state murder case that Wyoming Supreme 

Court’s ruling on Indian reservation issue in favor of state jurisdiction should be 

affirmed regardless of whether de novo or AEDPA standard applied). 

19 Mr. Magnan was later convicted in federal court of three counts of murder in 

Indian country. We affirmed his convictions. See United States v. Magnan, __ F.3d 

__, No. 16-7043, 2017 WL 3082157, at *1, *4 (10th Cir. July 20, 2017). 
- 20 - 

a. Overview 

“AEDPA erects a formidable barrier to federal habeas relief for prisoners whose 

claims have been adjudicated in state court.” Burt v. Titlow, 134 S. Ct. 10, 16 (2013). 

When a state court adjudicates a claim on the merits, AEDPA prohibits federal courts 

from granting habeas relief unless the state court’s adjudication of the claim: 

(1) resulted in a decision that was contrary to, or involved an unreasonable 

application of, clearly established Federal law, as determined by the 

Supreme Court of the United States; or 

(2) resulted in a decision that was based on an unreasonable determination 

of the facts in light of the evidence presented in the State court 

proceeding. 

28 U.S.C. § 2254(d)(1)-(2). “If this standard is difficult to meet, that is because it was 

meant to be.” Harrington v. Richter, 562 U.S. 86, 102 (2011).20

Section 2254(d) provides three ways to overcome AEDPA deference. Two appear 

in § 2254(d)(1), which provides that a state prisoner can qualify for habeas relief by 

showing a state court decision was (1) “contrary to” or (2) “involved an unreasonable 

application of” federal law that was clearly established by the Supreme Court. 28 U.S.C. 

§ 2254(d)(1); see Bell v. Cone, 535 U.S. 685, 694 (2002) (explaining the “contrary to” 

and “unreasonable application” clauses each carry “independent meaning”). The third 

way, in § 2254(d)(2), requires a state prisoner to show that a state court decision was 

 20 AEDPA concerns federal court deference to the decisions of state courts. Our 

review of the federal district court’s application of AEDPA is de novo. See Frost v. 

Pryor, 749 F.3d 1212, 1223 (10th Cir. 2014) (“[W]e review the district court’s legal 

analysis of the state court decision de novo and its factual findings, if any, for clear 

error.” (quotations omitted)). 
- 21 - 

based on an unreasonable factual determination. See 28 U.S.C. § 2254(d)(2). Thus, 

“[e]ach of AEDPA’s three prongs—contrary to clearly established federal law, 

unreasonable application of clearly established federal law, and unreasonable 

determination of the facts—presents an independent inquiry.” Budder v. Addison, 851 

F.3d 1047, 1051 (10th Cir. 2017). 

Mr. Murphy makes arguments based on all three, but because we need apply 

only § 2254(d)(1)’s “contrary to” provision to resolve this case, we restrict our 

discussion to that clause. 

b. The “contrary to” clause 

When a state court adjudicates a prisoner’s federal claim on the merits, review 

under § 2254(d)(1)’s “contrary to” clause proceeds in three steps. 

First, we must decide whether there is clearly established federal law that 

applies to the claim. See House v. Hatch, 527 F.3d 1010, 1015 (10th Cir. 2008) 

(“Whether the law is clearly established is the threshold question under 

§ 2254(d)(1).”). In discerning what law is “clearly established,” we must look only 

to the decisions of the Supreme Court, see Parker v. Matthews, 567 U.S. 37, 48-49 

(2012) (per curiam) (explaining circuit precedent “cannot form the basis for habeas 

relief under AEDPA”), and we must “measure state-court decisions against [the 

Supreme] Court’s precedents as of the time the state court renders its decision,” 
- 22 - 

Greene v. Fisher, 565 U.S. 34, 38 (2011) (emphasis and quotations omitted).21 

Within this set of cases, “‘clearly established Federal law’ for purposes of 

§ 2254(d)(1) includes only the holdings, as opposed to the dicta, of [the Supreme] 

Court’s decisions.” White v. Woodall, 134 S. Ct. 1697, 1702 (2014) (brackets and 

quotations omitted). 

Second, if we can identify clearly established law, we then must assess whether 

the state court’s decision was “contrary to” that law. See 28 U.S.C. § 2254(d)(1); see 

also House, 527 F.3d at 1018. “The word ‘contrary’ is commonly understood to mean 

‘diametrically different,’ ‘opposite in character or nature,’ or ‘mutually opposed.’” 

Williams v. Taylor, 529 U.S. 362, 405 (2000) (controlling opinion of O’Connor, J.) 

(quoting Webster’s Third New International Dictionary 495 (1976)). A state court 

decision violates the “contrary to” clause if it “applies a rule that contradicts the 

governing law set forth in [the Supreme Court’s] cases.” Id. If the state court identifies 

and applies “the correct legal rule,” its decision will not be “contrary to” federal law, but 

the state court’s application of the correct rule can still be evaluated under § 2254(d)(1)’s 

“unreasonable application” clause. Id. at 406. 

Third, if the state court rendered a decision that was “contrary to” clearly 

established Supreme Court precedent by applying the wrong legal test, we do not 

necessarily grant relief; rather, we review the claim applying the correct law. Put 

 21 Similarly, “review under § 2254(d)(1) is limited to the record that was 

before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 

563 U.S. 170, 181 (2011). 
- 23 - 

differently, “it is . . . a necessary prerequisite to federal habeas relief that a prisoner 

satisfy the AEDPA standard of review,” but habeas relief does not “automatically issue if 

a prisoner satisfies the AEDPA standard.” Horn v. Banks, 536 U.S. 266, 272 (2002). By 

showing the state court decision was “contrary to” clearly established federal law, the 

prisoner surmounts AEDPA, and the federal habeas court “must then resolve the claim 

without the deference AEDPA otherwise requires.” Panetti v. Quarterman, 551 U.S. 

930, 953 (2007); see also Williams, 529 U.S. at 406 (explaining that if “the state-court 

decision falls within” the “contrary to” clause, “a federal court will be unconstrained by 

§ 2254(d)(1)”); Milton v. Miller, 744 F.3d 660, 670-71 (10th Cir. 2014) (concluding 

OCCA’s decision was “contrary to” clearly established federal standard and reviewing 

claim de novo). 

As previously mentioned, we choose to assume that AEDPA supplies our standard 

of review and now turn to the substantive law governing Indian country jurisdiction. 

B. Indian Country Jurisdiction 

Understanding the Indian country jurisdiction issue in this case requires 

background knowledge about (1) reservations, (2) the Major Crimes Act, (3) the 

meaning of “Indian country,” and (4) how a reservation can be disestablished or 

diminished. We address these topics below. 

1. Reservations 

 The federal government began creating Indian reservations during the 

nineteenth century. See Felix S. Cohen’s Handbook of Federal Indian Law 60 (Nell 

Jessup Newton ed., 2012) [hereinafter “Cohen”]. “During the 1850s, the modern 
- 24 - 

meaning of Indian reservation emerged, referring to land set aside under federal 

protection for the residence or use of tribal Indians, regardless of origin.” Id. at 190-

91. “[T]he term [‘Indian reservation’] has come to describe federally-protected 

Indian tribal lands, meaning those lands which Congress has set apart for tribal and 

federal jurisdiction.” Indian Country, U.S.A., 829 F.2d at 973 (citation and 

quotations omitted). As we explain further below, the term “Indian country” includes 

not only reservations but other lands as well. 

2. The Major Crimes Act 

The Major Crimes Act is the jurisdictional statute at the heart of this case. It 

applies to enumerated crimes committed by Indians in “Indian country.” When the Major 

Crimes Act applies, jurisdiction is exclusively federal. See Negonsott v. Samuels, 507 

U.S. 99, 103 (1993) (“[F]ederal jurisdiction over the offenses covered by the Indian 

Major Crimes Act is exclusive of state jurisdiction.” (quotations omitted)); United States 

v. Sands, 968 F.2d 1058, 1062 (10th Cir. 1992) (“The State of Oklahoma does not have 

jurisdiction over a criminal offense committed by one Creek Indian against another in 

Indian country.”); Cravatt v. State, 825 P.2d 277, 279 (Okla. Crim. App. 1992) (“[Q]uite 

simply the State of Oklahoma does not have jurisdiction over crimes committed by or 

against an Indian in Indian Country.” (quotations omitted)). “The policy of leaving 

Indians free from state jurisdiction and control is deeply rooted in the Nation’s history.” 

Rice v. Olson, 324 U.S. 786, 789 (1945) (citing Worcester v. Georgia, 31 U.S. (6 Pet.) 

515 (1832)). 

The current version of the Major Crimes Act provides in relevant part: 
- 25 - 

Any Indian who commits against the person or property of another Indian 

or other person any of the following offenses, namely, murder . . . within 

the Indian country, shall be subject to the same law and penalties as all 

other persons committing any of the above offenses, within the exclusive 

jurisdiction of the United States. 

18 U.S.C. § 1153(a). If the Major Crimes Act applies to an Indian defendant, he or she 

“shall be tried in the same courts and in the same manner as are all other persons 

committing such offense within the exclusive jurisdiction of the United States.” 18 

U.S.C. § 3242. 

 The parties agree that Mr. Murphy and Mr. Jacobs, both members of the Creek 

Nation, qualify as Indians for purposes of the Major Crimes Act. See 124 P.3d at 1200; 

see also Aplt. Br. at 20; Aplee. Br. at 11.22 Murder is among the Act’s enumerated 

offenses. See 18 U.S.C. § 1153(a). The dispute centers on whether the crime occurred in 

Indian country, in particular on the Creek Reservation. Before we discuss the meaning of 

Indian country, we provide the following history of the Major Crimes Act because it aids 

our analysis. 

 In Ex parte Crow Dog, 109 U.S. 556 (1883), the Supreme Court held that federal 

and territorial courts lacked jurisdiction to try an Indian for the murder of another Indian 

committed in Indian country. Id. at 572. In response, Congress passed the Major Crimes 

Act in 1885. See Act of Mar. 3, 1885, ch. 341, § 9, 23 Stat. 362, 385; Keeble v. United 

 22 Whether the Major Crimes Act applies does not depend on whether the 

victim is an Indian. See 18 U.S.C. § 1153(a) (reaching crimes against an Indian “or 

other person”). 
- 26 - 

States, 412 U.S. 205, 209-10 (1973) (discussing Ex parte Crow Dog and legislative 

response). As originally enacted, the Major Crimes Act provided: 

[A]ll Indians, committing against the person or property of another Indian 

or other person any of the following crimes, namely, murder . . . within any 

Territory of the United States, and either within or without an Indian 

reservation, shall be subject therefor to the laws of such Territory relating 

to said crimes . . . ; and all such Indians committing any of the above 

crimes against the person or property of another Indian or other person 

within the boundaries of any State of the United States, and within the 

limits of any Indian reservation, shall be subject to the same laws, tried in 

the same courts and in the same manner, and subject to the same penalties 

as are all other persons committing any of the above crimes within the 

exclusive jurisdiction of the United States. 

§ 9, 23 Stat. at 385. Thus, unlike the current law, which applies in “Indian country,” the 

original Act applied to crimes committed in federal territories and “within the boundaries 

of any State of the United States, and within the limits of any Indian reservation.” Id.

(emphasis added); see also United States v. Kagama, 118 U.S. 375, 377-78, 383-85 

(1886) (discussing original Act and upholding its constitutionality). 

 In cases decided in the late nineteenth and early twentieth centuries, the 

Supreme Court explained that the Major Crimes Act applied to crimes committed 

within the boundaries of Indian reservations regardless of the ownership of the 

particular land on which the crimes were committed. See United States v. Celestine, 

215 U.S. 278, 284-87 (1909); United States v. Thomas, 151 U.S. 577, 585-86 (1894). 

The Court explained in Celestine that reservation status depends on the boundaries 

Congress draws, not on who owns the land inside the reservation’s boundaries: 

“[W]hen Congress has once established a reservation, all tracts included within it 

remain a part of the reservation until separated therefrom by Congress.” 215 U.S. at 
- 27 - 

285. This understanding of reservations has continued. See Solem v. Bartlett, 465 

U.S. 463, 470 (1984) (“Once a block of land is set aside for an Indian Reservation 

and no matter what happens to the title of individual plots within the area, the entire 

block retains its reservation status until Congress explicitly indicates otherwise.” 

(citing Celestine, 215 U.S. at 285)). 

3. Indian Country 

 In 1948, Congress amended the Major Crimes Act and codified the definition 

of “Indian country.” See Act of June 25, 1948, ch. 645, 62 Stat. 683, 757; see also 

Alaska v. Native Village of Venetie Tribal Gov’t, 522 U.S. 520, 528-30 (1998) 

(discussing term’s case-law origins); Cohen at 189-90 (discussing codification). 

Within the definition, Congress included the boundaries-based concept of 

reservations that had developed in the case law under the Major Crimes Act.23 Under 

18 U.S.C. § 1151, “Indian country” means: 

(a) all land within the limits of any Indian reservation under the jurisdiction 

of the United States Government, notwithstanding the issuance of any 

patent, and, including rights-of-way running through the reservation, 

(b) all dependent Indian communities within the borders of the United 

States whether within the original or subsequently acquired territory 

thereof, and whether within or without the limits of a state, and 

(c) all Indian allotments, the Indian titles to which have not been 

extinguished, including rights-of-way running through the same. 

 23 Before the 1948 codification, Congress in 1932 had also provided that the 

Major Crimes Act would apply to enumerated crimes committed by Indians “on and 

within any Indian reservation under the jurisdiction of the United States Government, 

including rights of way running through the reservation.” Act of June 28, 1932, 47 

Stat. 336, 337. 
- 28 - 

18 U.S.C. § 1151 (paragraph breaks added).24 If an area qualifies under any of these 

definitions, it is Indian country. See Okla. Tax Comm’n v. Sac & Fox Nation, 508 

U.S. 114, 123 (1993) (“Congress has defined Indian country broadly to include 

formal and informal reservations, dependent Indian communities, and Indian 

allotments, whether restricted or held in trust by the United States.”); see also Indian 

Country, U.S.A., 829 F.2d at 973 (“A formal designation of Indian lands as a 

‘reservation’ is not required for them to have Indian country status.”). Id.

 At the same time Congress enacted this definition of Indian country, it also 

amended the Major Crimes Act so that it would apply in Indian country as defined in 

the statute. See 62 Stat. at 758. Thus, the Major Crimes Act now applies in all of 

Indian country, see 18 U.S.C. § 1153(a), not only reservation land. 

 Within § 1151’s definition of Indian country, the § 1151(a) reservation clause 

concerns us here. Congress provided that “Indian country” includes “all land within 

the limits of any Indian reservation under the jurisdiction of the United States 

Government, notwithstanding the issuance of any patent, and, including rights-ofway running through the reservation.” 18 U.S.C. § 1151(a) (emphasis added). Thus, 

land within the boundaries of an Indian reservation is in “Indian country.” 

 24 “Indian country” carries a different meaning for certain laws relating to 

intoxicants. See 18 U.S.C. §§ 1154, 1156; see also 18 U.S.C. § 1151 (defining 

“Indian country” “[e]xcept as otherwise provided in sections 1154 and 1156 of this 

title”). These exceptions are not relevant here. 
- 29 - 

 The Supreme Court confirmed this understanding in Seymour v. 

Superintendent of Washington State Penitentiary, 368 U.S. 351 (1962). In that case, 

an Indian sought federal habeas relief after being convicted in Washington state court 

of burglary, one of the Major Crimes Act’s enumerated offenses. See 18 U.S.C. 

§ 1153(a); see also Seymour, 368 U.S. at 352 n.2. He argued the United States had 

exclusive jurisdiction because the crime occurred within an Indian reservation and 

therefore within Indian country. See 368 U.S. at 352-54. The State of Washington 

argued that even though the crime occurred on land within the reservation’s borders, 

the particular parcel was owned by a non-Indian. See id. at 357. Ruling for the 

Indian petitioner, the Supreme Court said Congress’s definition of Indian country in 

§ 1151(a) “squarely put to rest” this argument. Id. “Since the burglary with which 

[the defendant] was charged occurred on property plainly located within the limits of 

[the] reservation, the courts of Washington had no jurisdiction to try him for that 

offense.” Id. at 359. Under § 1151(a), therefore, all lands within the boundaries of a 

reservation have Indian country status. 

4. Reservation Disestablishment and Diminishment 

 Only Congress can disestablish or diminish a reservation.25 In Lone Wolf v. 

Hitchcock, 187 U.S. 553 (1903), the Supreme Court said Congress has the power to 

 25 The terms “disestablished” and “diminished” “have at times been used 

interchangeably,” but “disestablishment generally refers to the relatively rare 

elimination of a reservation while diminishment commonly refers to the reduction in 

size of a reservation.” Yankton Sioux Tribe v. Gaffey, 188 F.3d 1010, 1017 (8th Cir. 

1999). Here, the State argues Congress disestablished the Creek Reservation. 
- 30 - 

unilaterally abrogate treaties made with Indian tribes. Id. at 566. “Congress 

possesses plenary power over Indian affairs, including the power to modify or 

eliminate tribal rights.” South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 343 

(1998). This includes the power to eliminate or reduce a reservation against a tribe’s 

wishes and without its consent. See Solem, 465 U.S. at 470 n.11 (explaining the Lone 

Wolf Court “decided that Congress could diminish reservations unilaterally”). 

Because “only Congress can alter the terms of an Indian treaty by diminishing a 

reservation,” the Supreme Court has said the “touchstone” of whether a reservation’s 

boundaries have been altered is congressional purpose. Yankton Sioux Tribe, 522 

U.S. at 343; see also Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 588 n.4 (1977) 

(“The focus of our inquiry is congressional intent.”). 

 Having recognized Congress’s power to disestablish and diminish Indian 

reservations, the Supreme Court also has developed a framework to determine 

whether Congress has exercised its power with respect to a given reservation. We 

next discuss (a) the presumption against disestablishment and diminishment, (b) 

Congress’s pursuit of a policy called allotment and its relationship to reservation 

borders, and (c) the Supreme Court’s three-part Solem test for determining whether 

Congress has altered a reservation’s boundaries. 

a. Presumption against disestablishment and diminishment 

Courts do not lightly infer that Congress has exercised its power to disestablish 

or diminish a reservation. See DeCoteau v. Dist. Cty. Court for the Tenth Judicial 

Dist., 420 U.S. 425, 444 (1975) (“[The Supreme] Court does not lightly conclude that 
- 31 - 

an Indian reservation has been terminated.”). Indeed, the Supreme Court has said 

courts must approach these issues with a “presumption” that Congress did not intend 

to disestablish or diminish a reservation. Solem, 465 U.S. at 481; see also Absentee 

Shawnee Tribe v. Kansas, 862 F.2d 1415, 1417 (10th Cir. 1988) (“With regard to acts 

of Congress subsequent to the establishment of the reservation, the courts adopt an 

interpretational policy against diminishing an Indian reservation.”).26 Congress can 

do so, but its intent “must be ‘clear and plain.’” Yankton Sioux Tribe, 522 U.S. at 

343 (quoting United States v. Dion, 476 U.S. 734, 738-39 (1986)); see also Solem, 

465 U.S. at 470 (explaining Congress must “clearly evince an intent to change 

boundaries before diminishment will be found” (quotations omitted)); id. at 476 

(discussing a statute’s lack of “explicit expression of congressional intent to 

diminish” and finding reservation preserved); DeCoteau, 420 U.S. at 444 (“[The 

Supreme Court] requires that the congressional determination to terminate . . . be 

expressed on the face of the Act or be clear from the surrounding circumstances and 

legislative history.” (ellipsis in original) (quotations omitted)). 

 26 The presumption against reservation disestablishment and diminishment 

accords with the general principle that an intent “to abrogate or modify a treaty is not 

to be lightly imputed to the Congress.” Menominee Tribe of Indians v. United States, 

391 U.S. 404, 413 (1968) (quotations omitted); see also South Dakota v. Bourland, 

508 U.S. 679, 687 (1993). 
- 32 - 

b. The policy of allotment 

The Supreme Court’s test, discussed below, for determining whether Congress 

intended to disestablish or diminish a reservation developed after Congress pursued a 

policy known as allotment. 

Following decades of setting aside “large sections of the western States and 

Territories . . . for Indian reservations,” Congress in the late nineteenth century 

adopted “the view that the Indians tribes should abandon their nomadic lives on the 

communal reservations and settle into an agrarian economy on privately-owned 

parcels of land.” Solem, 465 U.S. at 466.27 This policy involved Congress dividing, 

or “allotting,” communal Indian lands into individualized parcels for private 

ownership by tribal members. Not incidentally, the policy also “open[ed] up 

unallotted lands for non-Indian settlement,” allowing these “surplus” lands to be sold 

to non-Indians. Id. at 467. Laws designed “to force Indians onto individual 

allotments carved out of reservations and to open up unallotted lands for non-Indian 

settlement” are often referred to as “surplus land acts.” Id.

Allotment on its own does not disestablish or diminish a reservation. See 

Mattz v. Arnett, 412 U.S. 481, 497 (1973) (explaining allotment can be “completely 

consistent with continued reservation status”). But Congress, in passing surplus land 

 27 Or, as the Supreme Court described the policy at the time, “Of late years a 

new policy has found expression in the legislation of Congress,[] a policy which 

looks to the breaking up of tribal relations, the establishing of the separate Indians in 

individual homes . . . .” In re Heff, 197 U.S. 488, 499 (1905), overruled in part by 

United States v. Nice, 241 U.S. 591, 601 (1916). 
- 33 - 

acts, has altered the boundaries of some reservations. See Solem, 465 U.S. at 469 

(“[S]ome surplus land acts diminished reservations, and other surplus land acts did 

not.” (citations omitted)). 

Congress pursued the allotment policy on a national scale in the 1887 General 

Allotment Act. See Act of Feb. 8, 1887, ch. 119, 24 Stat. 388.28 That law, however, 

did not affect all Indian tribes and reservations. The Creek Nation was not included 

in the General Allotment Act. See § 8, 24 Stat. at 391. By the early twentieth 

century, “Congress was dealing with the surplus land question on a reservation-byreservation basis, with each surplus land act employing its own statutory language, 

the product of a unique set of tribal negotiation and legislative compromise.” Solem, 

465 U.S. at 467. 

During the allotment era, Congress “anticipated the imminent demise” of 

reservations. Id. at 468; see also id. (“[M]embers of Congress voting on the surplus 

land acts believed to a man that within a short time—within a generation at most—

the Indian tribes would enter traditional American society and the reservation system 

would cease to exist.”); see also Yankton Sioux Tribe, 522 U.S. at 343 (explaining 

Congress “assumed that the reservation system would fade over time”). 

 28 The policy of the General Allotment Act, the Supreme Court has said, “was 

to continue the reservation system and the trust status of Indian lands, but to allot 

tracts to individual Indians for agriculture and grazing. When all the lands had been 

allotted and the trust expired, the reservation could be abolished.” Mattz, 412 U.S. at 

496. 
- 34 - 

The Supreme Court has said this general hostility to reservations and Indian 

communal life does not establish that a particular reservation was disestablished: 

 Although the Congresses that passed the surplus land acts 

anticipated the imminent demise of the reservation and, in fact, passed 

the acts partially to facilitate the process, we have never been willing to 

extrapolate from this expectation a specific congressional purpose of 

diminishing reservations with the passage of every surplus land act. 

Rather, it is settled law that some surplus land acts diminished 

reservations, and other surplus land acts did not. 

Solem, 465 U.S. at 468-69 (citations omitted); see also Pittsburg & Midway Coal 

Mining Co. v. Yazzie, 909 F.2d 1387, 1395 (10th Cir. 1990) (explaining 

congressional belief “that all reservations would be temporary is irrelevant in 

determining whether the boundaries of a specific reservation were being diminished 

by the language of a given statute”). Whether there was “a specific congressional 

purpose” to disestablish or diminish a particular reservation “depends on the 

language of the act and the circumstances underlying its passage.” Solem, 465 U.S.

at 469. To distinguish congressional acts that changed a reservation’s borders from 

those “that simply offered non-Indians the opportunity to purchase land within 

established reservation boundaries,” the Supreme Court has developed a three-part 

framework. Id. at 470. 

c. Solem factors 

In Solem v. Bartlett, a member of the Cheyenne River Sioux Tribe sought 

habeas relief after a state court in South Dakota convicted him of attempted rape. Id.

at 465; see also id. at 465 n.2 (explaining offense fell within Major Crimes Act). The 

defendant argued the state court lacked jurisdiction because the crime occurred on the 
- 35 - 

reservation. Id. The Supreme Court developed and applied its three-part framework 

to assess whether the reservation had been diminished. See id. at 470-80. It 

concluded the reservation had not been diminished and granted habeas relief because 

the federal government had exclusive jurisdiction. Id. at 481. Solem’s three factors 

are as follows: 

First, Solem instructs courts to examine the text of the statute purportedly 

disestablishing or diminishing the reservation. Statutory language is “[t]he most 

probative evidence of congressional intent.” Id. at 470. “Explicit reference to 

cession or other language evidencing the present and total surrender of all tribal 

interests strongly suggests that Congress meant to divest from the reservation all 

unallotted opened lands.” Id. When such language is combined with language 

committing Congress to compensate the tribe for its land with a fixed sum, 

Congress’s intent to diminish a reservation is especially clear. Id. at 470-71. No 

“particular form of words,” however, is necessary to diminish a reservation. 

Hagen v. Utah, 510 U.S. 399, 411 (1994). 

Second, Solem requires courts to consider “events surrounding the passage” of 

the statute. 465 U.S. at 471. Even when the statutory language “would otherwise 

suggest reservation boundaries remained unchanged,” the Court has been willing to 

find that Congress altered the borders if evidence at step two “unequivocally 

reveal[s] a widely-held, contemporaneous understanding that the affected reservation 

would shrink as a result of the proposed legislation.” Id. Step-two contemporary 
- 36 - 

historical evidence includes “the manner in which the transaction was negotiated with 

the tribes . . . and the tenor of legislative reports presented to Congress.” Id. 

 Third, Solem considers, though “[t]o a lesser extent,” “events that occurred 

after the passage” of the relevant statute. Id. This evidence can include “Congress’s 

own treatment of the affected areas” as well as “the manner in which the Bureau of 

Indian Affairs and local judicial authorities dealt with unallotted open lands.” Id. 

Later demographic history—evidence of “who actually moved onto opened 

reservation lands”—also offers a “clue as to what Congress expected would happen 

once land on a particular reservation was opened to non-Indian settlers.” Id. at 471-

72. 

In conducting this three-part inquiry, “[t]here are . . . limits to how far” courts 

can “go to decipher Congress’s intention in any particular surplus land act.” Id. at 

472. “Throughout the inquiry,” courts must “resolve any ambiguities in favor of the 

Indians” and remember that disestablishment and diminishment are not to be lightly 

found. Hagen, 510 U.S. at 411. The “rule by which legal ambiguities are resolved to 

the benefit of the Indians” is applied to its “broadest possible scope” in 

disestablishment and diminishment cases. DeCoteau, 420 U.S. at 447. Absent 

“substantial and compelling evidence” courts are “bound by . . . traditional solicitude 

for the Indian tribes” to conclude “that the old reservation boundaries survived.” 

Solem, 465 U.S. at 472. 
- 37 - 

* * * * 

 Having addressed AEDPA, the substantive law of Indian country jurisdiction, 

and reservation disestablishment and diminishment, we turn now to our analysis. 

III. DISCUSSION 

Our analysis addresses three issues: 

(A) Whether there was clearly established federal law as determined by the 

Supreme Court when the OCCA addressed Mr. Murphy’s jurisdictional claim. We 

conclude the Solem framework constituted clearly established law. 

(B) Whether the OCCA rendered a decision contrary to this clearly established law 

when it resolved Mr. Murphy’s jurisdictional claim. We conclude that it did because the 

OCCA failed to apply the Solem framework and took an approach incompatible with it. 

(C) Whether the federal government has exclusive jurisdiction over Mr. Murphy’s 

case. We conclude that it does because, under the Solem framework, Congress has not 

disestablished the Creek Reservation. 

Because the crime occurred in Indian country, Oklahoma lacked jurisdiction. We 

therefore reverse the district court’s denial of habeas relief and remand with instructions 

to grant Mr. Murphy’s application for a writ of habeas corpus under 28 U.S.C. § 2254. 

A. Clearly Established Federal Law 

Our first inquiry under § 2254(d)(1) is whether clearly established federal law 

governed Mr. Murphy’s claim. See House, 527 F.3d at 1015. The OCCA issued its 

jurisdictional decision on December 7, 2005. See Murphy, 124 P.3d 1198. Our survey of 

clearly established federal law is therefore limited to decisions of the Supreme Court 
- 38 - 

before that date. See 28 U.S.C. § 2254(d)(1); Greene, 565 U.S. at 38. We conclude the 

three-part Solem framework supplied the OCCA with clearly established federal law to 

decide Mr. Murphy’s claim. 

1. Solem—Clearly Established Law in 2005

The Supreme Court decided Solem in 1984, more than two decades before the 

OCCA decided Mr. Murphy’s case. Even in 1984, the Solem Court recognized the threepart framework it applied was not a new development in the law. The Solem Court 

explained its precedent had already “established a fairly clean analytical structure” for 

deciding whether Congress altered a reservation’s borders. 465 U.S. at 470. The Court’s 

pre-Solem decisions relied on the factors discussed in Solem to assess reservation 

disestablishment and diminishment. See Rosebud Sioux Tribe, 430 U.S. at 587 

(reservation diminished); DeCoteau, 420 U.S. at 427-28 (reservation disestablished); 

Mattz, 412 U.S. at 505 (reservation not disestablished); Seymour, 368 U.S. at 359 

(reservation not disestablished); see also Navajo Tribe of Indians v. New Mexico, 809 

F.2d 1455, 1476 n.30 (10th Cir. 1987) (“Although the Tribe refers to Solem as 

‘significant new authority,’ Solem is rather one of a line of cases construing the 

dimensions of ‘Indian country.’” (citation omitted)). 

Between 1984 when Solem was decided and 2005 when the OCCA issued its 

decision in Mr. Murphy’s case, the Supreme Court did nothing to call Solem into doubt. 

Rather, it reaffirmed Solem’s three-part framework and applied it to other reservations in 

the 1990s. See Yankton Sioux Tribe, 522 U.S. at 333, 344 (discussing three factors and 

concluding reservation was diminished); Hagen, 510 U.S. at 410-11, 421 (concluding 
- 39 - 

Congress diminished reservation and explaining Solem directs courts “to look to three 

factors”). 

In the years before the OCCA’s decision, federal appeals courts, including this 

court, recognized Solem provided the governing framework. See, e.g., Shawnee Tribe v. 

United States, 423 F.3d 1204, 1221 (10th Cir. 2005) (discussing Solem and explaining 

that “we look to three factors to determine whether a reservation’s boundaries have been 

altered”); United States v. Webb, 219 F.3d 1127, 1131 (9th Cir. 2000) (identifying Solem

as “well established Supreme Court precedent”); Yankton Sioux Tribe v. Gaffey, 188 F.3d 

1010, 1022-23 (8th Cir. 1999) (explaining Solem provides “the standard rules of 

interpretation”); Yazzie, 909 F.2d at 1395 (“The current analytic structure has been 

summarized in Solem.”). So did state high courts. See, e.g., State v. Greger, 559 N.W.2d 

854, 860-61 (S.D. 1997) (explaining Hagen retained Solem’s “traditional approach to 

diminishment questions”); State v. Davids, 534 N.W.2d 70, 72 (Wis. 1995) (noting Solem 

Court “identif[ied] the governing principles of diminishment”); State v. Perank, 858 P.2d 

927, 935-36 (Utah 1992) (reciting Solem framework as governing law). 

The Supreme Court has recognized that a legal framework for evaluating a 

given type of claim can constitute clearly established law under § 2254(d)(1). For 

example, the Court’s decision in Strickland v. Washington, 466 U.S. 668 (1984), 

announced a two-part test for evaluating claims of ineffective assistance of counsel, 

see id. at 687 (discussing performance and prejudice), and the Court has since said 

this framework constitutes clearly established law, Williams, 529 U.S. at 391 

(controlling opinion of Stevens, J.) (“It is past question that the rule set forth in 
- 40 - 

Strickland qualifies as ‘clearly established Federal law, as determined by the 

Supreme Court of the United States.’” (quoting 28 U.S.C. § 2254(d)(1))). Although 

claims of lawyer ineffectiveness are each unique and require fact-intensive analysis, 

Strickland’s framework still applies, and the variety of fact patterns “obviates neither 

the clarity of the rule nor the extent to which the rule must be seen as ‘established’ by 

[the Supreme] Court.” Id.

We conclude Solem’s three-part framework for evaluating whether Congress has 

disestablished or diminished an Indian reservation was clearly established when the 

OCCA rendered its decision. The State’s arguments to the contrary miss the mark. 

2. The State’s Arguments 

The State acknowledges the Supreme Court has applied the Solem framework to 

“surplus land acts, which provided for the sale of large areas of land for white 

settlement,” but it argues that, with respect to the Creek Nation, Congress allotted almost 

all of the Reservation to tribal members. Aplee. Br. at 46-47. This point has nothing to 

do with whether the Solem framework applies, though it does suggest Congress did not 

intend to disestablish the Creek Reservation. The State offers no explanation for why the 

proportion of land allotted to tribal members relative to the land opened to non-Indian 

settlement makes a difference to whether Solem applies. In making its disestablishment 

case, the State relies on statutes that allotted the Creek Reservation, and we discuss these 

laws below. Those statutes, like the statute in Solem, “force[d] Indians onto individual 

allotments carved out of [a] reservation[] and . . . open[ed] up unallotted lands for nonIndian settlement.” Solem, 465 U.S. at 467. Whether Congress disestablished the Creek 
- 41 - 

Reservation through those statutes is the kind of question the Solem framework was built 

to answer. 

The State also argues that Congress, in addition to allotting Creek lands, “took a 

number of steps toward[] the complete abolition of the Creek Nation as a political entity.” 

Aplee. Br. at 46; see also id. at 47. Below, we consider the State’s arguments about 

political dissolution as they relate to reservation disestablishment. But the State offers no 

explanation or legal authority for why legislation dealing with a tribe’s political status 

would make the Solem framework anything less than clear when it comes to reservation 

disestablishment—the issue before us. 

Despite its arguments that there is no clearly established law, the State’s brief 

recognizes Solem is controlling. It defends the substantive correctness of the OCCA’s 

decision by reference to Solem’s three-part test. Nowhere does the State argue that some 

other legal framework applies. 

* * * * 

Because clearly established Supreme Court law governs Mr. Murphy’s Indian 

country jurisdictional claim, we proceed to the next step of the § 2254(d)(1) inquiry: 

whether the OCCA rendered a decision that was “contrary to” the Solem framework. 

B. The OCCA Decision—Contrary to Clearly Established Federal Law 

 Before we address whether the OCCA’s decision was “contrary to” Solem, we 

consider—and reject—Mr. Murphy’s threshold argument that the OCCA failed to 

adjudicate his reservation claim on the merits. We then consider whether the OCCA’s 
- 42 - 

merits decision was “contrary to” the clearly established Solem framework discussed 

above. We conclude it was. 

1. The OCCA’s Merits Decision 

The following is the entirety of the OCCA’s discussion of the jurisdictional issue 

with respect to the Reservation: 

The remaining issue, under proposition one, is whether or not the land in 

question is part of a Creek Nation reservation that has never been 

disestablished or is part of a dependent Indian community.[29] 

Unfortunately, the District Court decided, based upon the Assistant District 

Attorney’s urging, that these questions were beyond the scope of the 

evidentiary hearing, even though we clearly asked the Court to determine if 

the tract in question was Indian country under 18 U.S.C. § 1151. 

Be that as it may, the error was alleviated when the District Court allowed 

Petitioner’s[30] counsel to make an extended offer of proof regarding the 

testimony and evidence that would have been presented on these two 

questions had that opportunity been given. Accordingly, we find the error 

was harmless. Even if the evidence had been admitted, it is insufficient to 

convince us that the tract in question qualifies as a reservation or dependent 

Indian community. 

Petitioner’s proffered expert, Monta Sharon Blackwell, stated by affidavit 

that “[t]here was never a formal Creek Nation ‘reservation’ but for practical 

purposes” certain treaty language was “tantamount to a reservation under 

Federal law.” Thus, the “Creek Nation, historically and traditionally, is a 

 29 As already mentioned, Mr. Murphy pursued three theories for Indian country 

jurisdiction before the OCCA. This part of the OCCA’s discussion addressing Mr. 

Murphy’s reservation argument under § 1151(a) followed its rejection of his 

allotment theory under § 1151(c). We omit the OCCA’s discussion of the 

“dependent Indian community” theory under § 1151(b) because that issue is not 

before us. And although Mr. Murphy again raises the allotment theory in this appeal, 

we do not reach that issue because we agree with him that the crime occurred within 

the Creek Reservation. 

30 The OCCA referred to Mr. Murphy as “Petitioner.” 
- 43 - 

confederacy of autonomous tribal towns, or Talwa, each with its own 

political organization and leadership.”[31] 

Ms. Blackwell and Jeff Dell[32] both took the position that the historical 

boundaries of the Creek Nation remained intact even after the various 

Creek lands were subjected to the allotment process, but no case is cited for 

the position that the individual Creek allotments remain part of an overall 

Creek reservation that still exists today.18 

18 It seems redundant, however, to treat lands as both a 

reservation and an allotment. Section 1151 clearly makes a 

distinction between the two. 

The best authority on this point is Indian Country, U.S.A., Inc. v. State of 

Oklahoma, 829 F.2d at 975, which treats the Creek Nation lands as a 

“reservation” as of 1866.19 However, the Tenth Circuit declined to answer 

the question of whether the exterior boundaries of the 1866 Creek Nation 

have been disestablished and expressly refused to express an opinion in that 

regard concerning allotted Creek lands. See id. at 975 n. 3, 980 n. 5. 

19 The case finds the term “reservation,” for purposes of 

defining Indian country, “simply refers to those lands which 

 31 As part of his offer of his proof on the reservation issue, Mr. Murphy 

submitted an affidavit from Ms. Blackwell, an attorney with more than two decades 

of experience practicing Indian law with the U.S. Department of the Interior. See 

Blackwell Aff. ¶¶ 3-4, State Post-Conviction Record, Vol. 1 at 151. Ms. Blackwell 

stated the tract of land where the crime occurred “falls within the territorial 

boundaries of the Muscogee (Creek) Nation.” Id. ¶ 13. As the OCCA pointed out, 

she stated “[t]here was never a formal Creek Nation ‘reservation’” because the Creek 

Nation had “acquired the land at issue in this case through treaty with the United 

States.” Id. ¶ 14. But there is no dispute that the Creek Nation had a reservation; the 

State agrees it was intact in 1900, see Aplee. Br. at 75 n.25. Rather, the dispute is 

whether Congress has disestablished the Creek Reservation. In Ms. Blackwell’s 

opinion, “[t]he exterior territorial boundaries of the Creek Nation were not altered” 

by congressional acts around the turn of the twentieth century. Blackwell Aff. ¶ 21. 

She concluded “the Muscogee (Creek) Nation has not been disestablished” and that 

“regardless of title ownership as Indian or non-Indian, the [tract where the crime 

occurred] is Indian country within the meaning of Federal Law.” Id. ¶ 22. 

32 Mr. Dell, “an Assistant Realty Officer for the Creek Nation, rendered a title 

opinion on behalf of the State.” 124 P.3d at 1203. 
- 44 - 

Congress intended to reserve for a tribe and over which 

Congress intended primary jurisdiction to rest in the federal 

and tribal governments.” 829 F.2d at 973. 

If the federal courts remain undecided on this particular issue, we refuse to 

step in and make such a finding here. 

Murphy, 124 P.3d at 1207-08 (paragraph numbers omitted). 

Mr. Murphy, focusing mainly on the court’s last sentence, argues the OCCA 

refused to adjudicate his reservation claim on the merits. The State maintains the OCCA 

decided the reservation issue on the merits because it considered Mr. Murphy’s evidence, 

found it insufficient, and denied relief. 

Whether the OCCA adjudicated the jurisdictional claim “on the merits” as that 

phrase is used in 28 U.S.C. § 2254(d) determines our standard of review. As discussed 

above, we have chosen to assume (without deciding) that AEDPA applies to 

jurisdictional claims of the type Mr. Murphy raises. But even when a type of claim can 

qualify for AEDPA review, federal courts do not apply AEDPA deference when the state 

court did not adjudicate the specific claim “on the merits.” See Cone v. Bell, 556 U.S. 

449, 472 (2009); Stouffer v. Duckworth, 825 F.3d 1167, 1179 (10th Cir. 2016) (“[I]f the 

state court did not decide the claim on the merits, the stringent principles of deference 

under 28 U.S.C. § 2254 are inapplicable.” (quotations omitted)), cert. denied, 137 S. Ct. 

1226 (2017). If the state court did not adjudicate the claim “on the merits,” there is no 

decision to which the federal court can defer. See Stouffer v. Trammell, 738 F.3d 1205, 

1213 (10th Cir. 2013) (explaining that, when AEDPA does not apply, “[w]e consider 

legal questions de novo and factual findings, if any, for clear error”). 
- 45 - 

The Supreme Court has explained that a state court’s decision is “on the merits” 

even when it denies the prisoner’s claim “without an accompanying statement of 

reasons.” Richter, 562 U.S. at 92. Indeed, “it may be presumed that the state court 

adjudicated the claim on the merits in the absence of any indication or state-law 

procedural principles to the contrary.” Id. at 99 (emphasis added); see also Johnson v. 

Williams, 133 S. Ct. 1088, 1091, 1094-96 (2013). Thus, outside of the “unusual 

circumstances” when the presumption of a merits adjudication is rebutted, Johnson, 133 

S. Ct. at 1096, federal habeas relief is available to state prisoners only under the limited 

circumstances stated in § 2254(d). 

Although the OCCA’s opinion gives both sides something to draw on, we agree 

with the State that the court rendered a merits decision.33 The OCCA remarked in 

conclusion that it “refuse[d] to step in,” 124 P.3d at 1208, but Mr. Murphy’s argument 

ignores the rest of the OCCA’s discussion in which the court discussed his offer of proof 

on the reservation issue and said his argument was unpersuasive. We do not read the 

OCCA’s final sentence as a refusal to decide the reservation question at all but rather as a 

refusal to decide it in Mr. Murphy’s favor. Even if Mr. Murphy’s reading is plausible, 

ambiguity is insufficient to overcome the presumption that the OCCA’s adjudication was 

on the merits. See Richter, 562 U.S. at 92 (discussing presumption of merits 

adjudication). Thus, because the OCCA’s adjudication of the reservation issue was on 

the merits, AEDPA applies and Mr. Murphy cannot receive habeas relief without 

 33 Because we agree with the State, we need not address its alternative 

contention that Mr. Murphy waived his merits-determination argument. 
- 46 - 

showing the OCCA’s decision meets the standard set out in § 2254(d). See Lay v. Royal, 

860 F.3d 1307, 1317 (10th Cir. 2017) (“Because the OCCA addressed the merits . . . we 

may only grant habeas relief if we find that the OCCA’s decision was contrary to . . . 

settled federal law . . . .” (citation omitted)). We turn to that question next. 

2. The OCCA’s Decision Was Contrary to Solem

Mr. Murphy argues that, if the OCCA decided the reservation jurisdiction issue, its 

decision was “contrary to” clearly established Supreme Court authority. We agree. 

a. No citation to Solem

 Nowhere in its discussion of the reservation issue—nor anywhere else in its 

opinion—did the OCCA cite Solem, Hagen, Yankton Sioux Tribe, or any of the Supreme 

Court’s other Indian reservation disestablishment precedent.34 This failure to cite 

governing law, however, does not on its own mark the OCCA decision as “contrary to” 

that law. See Mitchell v. Esparza, 540 U.S. 12, 16 (2003) (per curiam) (“A state court’s 

decision is not contrary to clearly established Federal law simply because the court did 

not cite [the Supreme Court’s] opinions.” (alterations and quotations omitted)). State 

courts can apply clearly established federal law without citing to it. See Early v. Packer, 

537 U.S. 3, 8 (2002) (per curiam). Indeed, AEDPA “does not even require [state court] 

awareness of [Supreme Court] cases, so long as neither the reasoning nor the result of the 

state-court decision contradicts them.” Id. 

 34 The OCCA included Rosebud Sioux Tribe, 430 U.S. 584, in one footnoted 

string citation, but it was in the context of the allotment issue, not the reservation 

question. See 124 P.3d at 1205 n.14. 
- 47 - 

Here, the OCCA did not merely fail to cite controlling Supreme Court authority, it 

failed to apply it, and in deviating from Solem, the OCCA’s reasoning contradicted 

clearly established law. 

b. Failure to apply Solem

Setting aside the absence of citations, the substance of the OCCA’s analysis lacks 

even cursory engagement with any of the three Solem factors. The OCCA did not 

evaluate any statute to see if Congress had disestablished the Creek Reservation. It also 

did not evaluate the historical context of any laws. Nor did the OCCA evaluate later 

treatment of the area in question or demographic history. The OCCA’s decision failed to 

apply the required legal standard to the facts. 

What the OCCA did say in its analysis contradicted Solem. Instead of heeding 

Solem’s “presumption” that an Indian reservation continues to exist until Congress acts to 

disestablish or diminish it, see 465 U.S. at 481, the OCCA flipped the presumption by 

requiring evidence that the Creek Reservation had not been disestablished—that it “still 

exists today,” 124 P.3d at 1207. In other words, the OCCA improperly required Mr. 

Murphy to show the Creek Reservation had not been disestablished instead of requiring 

the State to show that it had been. This “contradicts” governing law. Williams, 529 U.S. 

at 405 (controlling opinion of O’Connor, J.); see id. (“A state-court decision will 

certainly be contrary to our clearly established precedent if the state court applies a rule 

that contradicts the governing law set forth in our cases.”); see also Lafler v. Cooper, 566 

U.S. 156, 173 (2012) (“[T]he [State] Court of Appeals identified respondent’s 

ineffective-assistance-of-counsel claim but failed to apply Strickland to assess it. . . . By 
- 48 - 

failing to apply Strickland to assess the ineffective-assistance-of-counsel claim 

respondent raised, the state court’s adjudication was contrary to clearly established 

federal law.”). The OCCA applied the wrong law. 

Instead of applying the Solem factors, the OCCA looked for federal court 

decisions holding that the Reservation continues to exist. This yielded the OCCA’s 

single citation to legal authority—our decision in Indian Country, U.S.A., which was not 

a disestablishment case. See 829 F.2d at 975 (“In the present case, we need not decide 

whether the exterior boundaries of the 1866 Creek Nation have been disestablished.”). 

The OCCA called Indian Country, U.S.A., the “best authority” for the position that there 

is still a Creek Reservation. 124 P.3d at 1207. Indeed, we held there is still a Creek 

Reservation, but we had no occasion to determine whether the Reservation’s 1866 

boundaries remained intact. See 829 F.2d at 975 n.3, 976 (holding lands at issue “still 

retain their reservation status within the meaning of 18 U.S.C. § 1151(a)”); id. at 980 n.5 

(setting aside boundary question). 

The Supreme Court has occasionally faulted federal habeas courts for concluding 

state courts issued decisions that were “contrary to” federal law when the federal court 

failed to give the “benefit of the doubt” to the state court. See, e.g., Holland v. Jackson, 

542 U.S. 649, 655 (2004) (per curiam); see also Woodford v. Visciotti, 537 U.S. 19, 24 

(2002) (per curiam). In those cases, state courts properly articulated the governing legal 

test in one part of their opinions but went on to misstate the standard or give the 

impression that what was actually applied deviated from binding federal law. See 

Holland, 542 U.S. at 654; Woodford, 537 U.S. at 22-24. 
- 49 - 

This is not one of those cases. The OCCA failed to articulate or apply the proper 

legal framework anywhere in its opinion, and its analysis is incompatible with the 

Solem framework. At oral argument, we questioned the State about whether the OCCA 

had applied Solem: 

THE COURT: Is there anything to indicate [the OCCA] applied [Solem]? 

Anything? Did they mention steps one, two, and three? 

THE STATE: They did not, Your Honor. 

THE COURT: Did [the OCCA] say anything that would fit in steps one, 

two, and three? 

THE STATE: They—No. 

Oral Arg. at 46:00-46:13. The State argues the OCCA’s decision was not contrary to 

Solem. But the OCCA applied the wrong law in adjudicating Mr. Murphy’s reservation 

claim. Its adjudication was “contrary to” clearly established law. 

c. The State’s arguments 

The State, repeating the OCCA’s mistake in reversing the presumption against 

disestablishment, argues Mr. Murphy “failed to present evidence that Congress did not

intend disestablishment.” Aplee. Br. at 48 (emphasis added). But under Solem, that is 

not the test. 

The State further argues that Mr. Murphy “bears the burden of establishing federal 

jurisdiction, and the burden under AEDPA.” Id. Of course, the burden of showing 

federal jurisdiction—our jurisdiction in this proceeding—is on Mr. Murphy. He has 

carried that burden. Our jurisdiction is proper under 28 U.S.C. § 2253(a), (c)(1)(A), 

because he secured COAs for the issues on appeal. And his burden under AEDPA is to 
- 50 - 

show that the OCCA rendered a decision that was “contrary to” clearly established 

federal law. He has. For the reasons discussed above, the OCCA’s analysis of the 

reservation issue ignored and contradicted Solem’s governing framework. 

But as to the principal issue before us in this appeal, the burden of establishing 

jurisdiction in the murder prosecution rests with the State. As the party bringing the 

prosecution, the State has the burden to show that the court in which it wishes to litigate 

has jurisdiction over the case. See Sweden v. State, 172 P.2d 432, 435 (Okla. Crim. App. 

1946) (“[T]he burden is upon the state to prove the guilt of [the] defendant beyond a 

reasonable doubt, and this includes the proving of venue and all other essentials 

necessary to show jurisdiction and sustain a judgment of conviction.”). The issue here is 

whether the state court or the federal court in Oklahoma had jurisdiction. On that score, 

the presumption against disestablishment and diminishment aligns with the State’s 

burden to show jurisdiction in its chosen forum—state court. 

The State also argues that our deference to the OCCA should be “at its apex” 

when the clearly established law states a general standard. Aplee. Br. at 52. Although 

the State is correct that “the more general the rule at issue . . . the more leeway state 

courts have in reaching outcomes in case-by-case determinations,” Renico v. Lett, 559 

U.S. 766, 776 (2010) (brackets and quotations omitted), and although we further agree 

Solem supplies a general standard meant for application to various disestablishment and 

diminishment cases, these principles do not entitle the OCCA’s decision to deference. 

The State’s argument concerns § 2254(d)(1)’s “unreasonable application” clause, but that 

clause does not come into play here because, to benefit from the wide berth federal courts 
- 51 - 

give state courts in applying general standards, the state court must actually apply the 

standard. See Eizember v. Trammell, 803 F.3d 1129, 1140 (10th Cir. 2015) (“The 

Supreme Court has long recognized that a state court’s identification of the correct 

governing legal standard and the reasonableness of its application of that standard to the 

facts are two distinct statutory inquiries.”). The OCCA did not unreasonably apply 

Solem; it didn’t apply it at all. 

The State reminds us that our review under AEDPA is limited to the record before 

the OCCA. But we have no need to expand the record. The State acknowledges that the 

state-court evidentiary hearing determined Mr. Murphy’s status as an Indian as well as 

the precise location of the crime. The OCCA relied on these facts, and we do not 

question them. Our analysis requires us only to compare the OCCA’s adjudication of Mr. 

Murphy’s claim with the Supreme Court’s clearly established law. That comparison 

reveals the OCCA’s decision is contrary to Solem. 

Mr. Murphy put the issue of whether the Creek Reservation had been 

disestablished squarely before the OCCA, but the court decided the claim by ignoring and 

contradicting Solem. Its decision was thus “contrary to . . . clearly established Federal 

law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1). Consequently, we 

must review his jurisdictional claim without AEDPA deference. See Milton, 744 F.3d at 

670-71 (explaining that “satisfaction of the § 2254(d)(1) standard” does not entitle the 

prisoner to habeas relief but it does “effectively remove[] AEDPA’s prohibition on the 

issuance of a writ”). We now apply the Solem framework to analyze Mr. Murphy’s 

jurisdictional claim. 
- 52 - 

C. Exclusive Federal Jurisdiction 

Mr. Murphy has overcome AEDPA’s barrier to habeas relief, and we must now 

decide his jurisdictional claim de novo.35 In this section, we begin by (1) addressing 

additional legal authority. Although our evaluation of the OCCA’s decision under 

AEDPA was limited to clearly established Supreme Court law decided before December 

2005, our de novo analysis of Mr. Murphy’s claim must account for Supreme Court and 

Tenth Circuit authority post-dating the OCCA’s decision. See Lafler, 566 U.S. at 173 

(explaining that, when “AEDPA does not present a bar to granting” relief because the 

state court “failed to apply” the correct legal test, the federal habeas court “can determine 

the principles necessary to grant relief”); Williams, 529 U.S. at 406 (explaining that when 

a state-court decision falls within the “contrary to” clause, “a federal court will be 

unconstrained by § 2254(d)(1)”); see also Brown v. Uphoff, 381 F.3d 1219, 1225 (10th 

Cir. 2004).36 After addressing this recent legal authority, we (2) recap relevant history of 

 35 “[T]he Supreme Court has applied, without comment, a de novo standard of 

review in determining congressional intent regarding reservation boundary 

diminishment.” Wyoming v. EPA, 849 F.3d 861, 869 (10th Cir. 2017) (brackets and 

quotations omitted). 

36 Independent of AEDPA, the Supreme Court’s Teague doctrine, Teague v. 

Lane, 489 U.S. 288 (1989), imposes another limitation on habeas relief in certain 

circumstances. See Brown, 381 F.3d at 1225-26; see also Horn, 536 U.S. at 272 

(“[T]he AEDPA and Teague inquiries are distinct.”). Teague does not pose a barrier 

to Mr. Murphy. 

For one thing, the State does not argue that Teague should preclude relief. In 

such circumstances, “a federal court may . . . decline to apply Teague.” Caspari v. 

Bohlen, 510 U.S. 383, 389 (1994). Even if we were to raise Teague on the State’s 

behalf, it would not affect our analysis. 

Continued . . . 
- 53 - 

the Creek Nation, which provides important context for the critical period in this case—

the years around the turn of the twentieth century. Finally, we (3) apply Solem’s three-

 

Teague provides that “new constitutional rules of criminal procedure will not 

be applicable to those cases which have become final before the new rules are 

announced.” 489 U.S. at 310 (plurality opinion); see also Danforth v. Minnesota, 

552 U.S. 264, 266 n.1 (2008) (explaining that “[a]lthough Teague was a plurality 

opinion . . . the Teague rule was affirmed and applied by a majority of the Court 

shortly thereafter”). “Finality occurs when direct state appeals have been exhausted 

and a petition for writ of certiorari from [the Supreme] Court has become time barred 

or has been disposed of.” Greene, 565 U.S. at 39. 

Teague has two exceptions. “First, the bar does not apply to rules forbidding 

punishment of certain primary conduct or to rules prohibiting a certain category of 

punishment for a class of defendants because of their status or offense.” Beard v. 

Banks, 542 U.S. 406, 416 (2004) (brackets and quotations omitted). “The second 

exception is for watershed rules of criminal procedure implicating the fundamental 

fairness and accuracy of the criminal proceeding.” Id. at 417 (quotations omitted). 

Mr. Murphy’s conviction became “final” on April 21, 2003—the date the 

Supreme Court denied his petition for certiorari following his direct appeal to the 

OCCA. See 538 U.S. 985. (This is before the OCCA adjudicated his jurisdictional 

claim on post-conviction review in 2005.) Mr. Murphy has no need for Teague’s 

exceptions because he does not seek the benefit of a rule that falls within Teague’s 

retroactivity bar. The post-2003 cases we discuss in our de novo analysis are 

applications of the Solem framework. We need not decide whether these cases 

qualify as “constitutional” and “procedural” under Teague because, even if they do, 

they are not “new.” A case does not announce a new rule under Teague “when it is 

merely an application of the principle that governed a prior decision to a different set 

of facts.” Chaidez v. United States, 133 S. Ct. 1103, 1107 (2013) (brackets and 

quotations omitted). “[A] rule of general application,” that is, “a rule designed for 

the specific purpose of evaluating a myriad of factual contexts,” will only 

“infrequent[ly] . . . yield[] a result so novel that it forges a new rule, one not dictated 

by precedent.” Id. (quotations omitted). When a court “appl[ies] a general standard 

to the kind of factual circumstances it was meant to address, [the resulting decision] 

will rarely state a new rule for Teague purposes.” Id.; see also id. at 1107-08 

(explaining “garden-variety applications” of the Strickland framework “do not 

produce new rules”). The post-finality cases we discuss apply the Solem framework 

to factual scenarios for which the test was developed; none of the cases created a new 

rule. Moreover, even if Teague required us to limit our analysis to pre-finality law, 

we would still reach the same result. 
- 54 - 

part framework and conclude that Congress has not diminished or disestablished the 

Creek Reservation. 

1. Additional Legal Background 

 We review the Supreme Court’s and our court’s most recent applications of Solem.

a. Supreme Court authority 

 In Nebraska v. Parker, the Supreme Court unanimously recommitted to the “well 

settled” Solem framework. 136 S. Ct. 1072, 1078 (2016). The Court held Congress did 

not diminish the Omaha Indian Reservation in Nebraska and that the land at issue 

remained part of the Reservation. Id. at 1082. The Court reiterated that only Congress 

can divest land of its reservation status “and its intent to do so must be clear.” Id. at 

1078-79. Parker shed light on how the Solem factors interact and further underscored the 

importance of discerning congressional intent from statutory text, which is “the first and 

most important step” of the Solem framework. Id. at 1080. 

Before examining the 1882 statute at issue, the Court reviewed its precedent and 

identified “[c]ommon textual indications” of a congressional intent to alter reservation 

boundaries. Id. at 1079. “[H]allmarks of diminishment” include: 

 explicit references to cession or surrender of tribal interests, 

 unconditional congressional commitments to compensate the tribe with a fixed 

sum for the total surrender of tribal claims to opened lands, and 

 provisions restoring reservation lands to “the public domain.” 

Id. The statute in Parker featured none of these hallmarks. Id. Rather, it provided for a 

government survey and appraisal of certain lands and for sales to non-Indians. Id. The 
- 55 - 

Court contrasted the statute with earlier nineteenth century treaties between the Omaha 

Tribe and United States that had addressed other lands and had “terminated the Tribe’s 

jurisdiction over their land in unequivocal terms.” Id. at 1080 (quotations omitted). The 

Court concluded the 1882 statute did not diminish the Reservation’s boundaries. Id. 

Turning to the second Solem step, the Parker Court determined the “mixed 

historical evidence” around the law’s passage could not “overcome the lack of clear 

textual signal that Congress intended to diminish the reservation.” Id. To find 

diminishment, step-two evidence must “‘unequivocally reveal[] a widely held, 

contemporaneous understanding that the affected reservation would shrink as a result of 

the proposed legislation.’” Id. (emphasis added by Parker Court) (quoting Solem, 465 

U.S. at 471). Floor statements by members of Congress cutting both ways, the Court 

ruled, “are far from the clear and plain evidence of diminishment required.” Id.

(quotations omitted). 

The Court then considered step three—the later treatment of the area and its 

demographic history. Id. at 1081. Step-three evidence, the Court explained, “might 

reinforce a finding as to diminishment or nondiminishment based on the text” of the 

statute, but “never” has the Court “relied solely on this third consideration to find 

diminishment.” Id. (alteration and quotations omitted). 

The step-three evidence in Parker strongly favoring diminishment helps illustrate 

the significance Solem places in step-one statutory text. In Parker, “the Tribe was almost 

entirely absent from the disputed territory for more than 120 years.” Id. It did not 

enforce any regulations in the area, nor did it “maintain an office, provide social services, 
- 56 - 

or host tribal celebrations or ceremonies.” Id. For more than a hundred years, the federal 

government treated the lands as belonging to Nebraska. Id. at 1082. Of the people living 

in the town on the disputed site, most were not associated with the Tribe, and, since the 

early twentieth century, less than two percent of the Tribe’s members lived in the 

disputed area. Id. at 1078. 

This history was nonetheless insufficient, the Supreme Court said, to “overcome 

the statutory text, which is devoid of any language indicative of Congress’ intent to 

diminish.” Id. at 1082 (quotations omitted). Despite the “compelling” justifiable 

expectations of non-Indian settlers stemming “from the Tribe’s failure to assert 

jurisdiction” over a long period of time, the Court held such non-Indian expectations 

“cannot diminish reservation boundaries.” Id. “Only Congress has the power to diminish 

a reservation.” Id. And as Parker makes clear, the Supreme Court looks first and 

foremost to statutory text when attempting to discern Congress’s intent. 

b. Tenth Circuit authority 

 This court has addressed Indian reservation disestablishment and diminishment 

issues on numerous occasions. See, e.g., Osage Nation v. Irby, 597 F.3d 1117 (10th Cir. 

2010); Shawnee Tribe, 423 F.3d 1204; Yazzie, 909 F.2d 1387; Ute Indian Tribe v. Utah, 

773 F.2d 1087 (10th Cir. 1985) (en banc), overruled by Hagen, 510 U.S. 399. 

Most recently, in Wyoming v. EPA, 849 F.3d 861 (10th Cir. 2017), we applied 

Solem’s “well-settled approach” and concluded that Congress diminished the Wind River 

Reservation when it enacted a 1905 agreement the federal government negotiated with 

the Eastern Shoshone and Northern Arapaho Tribes. Id. at 865, 869. 
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 Applying the “hierarchical, three-step framework” of Solem, we began with the 

statutory text. Id. at 869-74. We held the following language evinced Congress’s intent 

to diminish the Reservation: 

The said Indians belonging on the Shoshone or Wind River Reservation, 

Wyoming, for the consideration hereinafter named, do hereby cede, grant, 

and relinquish to the United States, all right, title, and interest which they 

may have to all the lands embraced within said reservation, except the lands 

within and bounded by the following lines . . . . 

Id. at 870 (emphasis omitted) (quoting Act of March 3, 1905, ch. 1452, 33 Stat. 1016, 

1016). We called this “express language of cession” notwithstanding the absence of the 

words “sell” or “convey.” Id. at 871.37 “There are no magic words of cession required to 

find diminishment. Rather, the statutory language, whatever it may be, must establish an 

express congressional purpose to diminish.” Id. at 869-70 (brackets and quotations 

omitted). 

 Turning to step two—the historical context surrounding the passage of the Act—

we found it “further confirm[ed] Congress intended to diminish the Wind River 

Reservation.” Id. at 874 (majority opinion). A history of failed congressional attempts to 

sever the area north of the Big Wind River from the Reservation informed our evaluation 

of the eventually enacted law that accomplished that diminishment. Id. at 874-79. 

 Our analysis at step three—concerning the later treatment and demographics of the 

area—was “brief and ultimately d[id] not impact our conclusion.” Id. at 879. 

“Unsurprisingly,” from the “volumes of material” unearthed by the parties, “each side . . . 

 37 The Act elsewhere used the word “conveyed.” See id. at 872. 
- 58 - 

managed to uncover treatment by a host of actors supporting its respective position,” but 

because we could not “discern clear congressional intent” from the conflicting evidence, 

we found the later history held little value. Id.; see also id. at 887-88 (Lucero, J., 

dissenting) (agreeing with majority that step three “comes into play only at the margins” 

and that the post-act history was too “muddled” to provide clear evidence of 

congressional intent). 

* * * * 

 This more recent case law, though unavailable to the OCCA in 2005, informs our 

de novo review of Mr. Murphy’s claim. Indeed, we are bound by this precedent. Before 

turning to apply the Solem framework, we discuss relevant aspects of the Creek Nation’s 

history, which provides important context for our Solem analysis. 

2. Additional Factual Background—Creek Nation History 

The following overview of the Tribe’s history provides important context for the 

parties’ arguments and our application of Solem. 

a. Original homeland and forced relocation 

 The Creek Nation once exercised domain over much of present day Alabama and 

Georgia. See Indian Country, U.S.A., 829 F.2d at 971. “In the 1820’s, the federal 

government adopted a policy to forcibly remove the Five Civilized Tribes[38] from the 

southeastern United States and relocate them west of the Mississippi River, in what is 

 38 “The Cherokees, Chickasaws, Choctaws, Creeks, and Seminoles historically 

have been referred to as the ‘Five Civilized Tribes.’” Indian Country, U.S.A., 829 

F.2d at 970 n.2. 
- 59 - 

today Oklahoma.” Id.; see also Woodward v. De Graffenried, 238 U.S. 284, 293 (1915) 

(“The history of the removal of the Muskogee or Creek Nation from their original homes 

to lands purchased and set apart for them by the government of the United States in the 

territory west of the Mississippi river does not differ greatly from that of the others of the 

Five Civilized Tribes . . . .”). See generally Cohen at 49-50 (discussing Creek Nation’s 

forced removal). 

 The federal government and the Creek Nation entered into several treaties related 

to this forced relocation. In 1826, the Creek Nation “cede[d] to the United States” certain 

lands in Georgia. Treaty with the Creeks, art. 2, Jan. 24, 1826, 7 Stat. 286, 286, available 

at 1826 WL 2688. In an 1832 treaty, “the Creeks ceded their eastern homelands to the 

United States, in exchange for lands west of the Mississippi River” in present-day 

Oklahoma. Indian Country, U.S.A., 829 F.2d at 971 (discussing Treaty with the Creeks, 

Mar. 24, 1832, 7 Stat. 366, available at 1832 WL 3599). “In a subsequent [1833] treaty 

regarding these lands, the United States agreed to grant ‘a patent, in fee simple, to the 

Creek nation.’” Id.; see Treaty with the Creeks, art. 3, Feb. 14, 1833, 7 Stat. 417, 419, 

available at 1833 WL 4533. Thus, “[t]he Creek Tribe had a fee-simple title, not the usual 

Indian right of occupancy with the fee in the United States.” United States v. Creek 

Nation, 295 U.S. 103, 109 (1935); see also Woodward, 238 U.S. at 293 (“Pursuant to 

treaty provisions, the Creeks held their lands under letters patent issued by the President 

of the United States, dated August 11, 1852, vesting title in them as a tribe, to continue so 

long as they should exist as a nation and continue to occupy the country thereby assigned 
- 60 - 

to them.” (citations omitted)). In sum, by the mid-nineteenth century, treaties with the 

federal government had given the Creek Nation a vast tract of land in modern Oklahoma. 

b. Nineteenth century diminishment 

After the Creek Nation’s relocation west, its land was diminished on multiple 

occasions in the mid-nineteenth century. “In 1856, the Creeks agreed to cede to the 

Seminole Tribe a portion of their lands.” Indian Country, U.S.A., 829 F.2d at 971. In the 

1856 treaty, the federal government reaffirmed the Creek Nation’s title and tenure to its 

remaining Reservation. It guaranteed “that ‘no State or Territory shall ever pass laws for 

the government of the Creek or Seminole tribes of Indians,’ and the United States 

pledged that ‘no portion of either of the tracts of country defined in [the treaty] shall ever 

be embraced or included within, or annexed to, any Territory or State.’” Id. (quoting 

Treaty with the Creek and Seminole Tribes, art. 4, Aug. 7, 1856, 11 Stat. 699, 700, 

available at 1856 WL 11367). 

Following the Civil War, an 1866 treaty required “the Tribe . . . to cede the 

western portion of its domain.” Id. “The Creek Nation retained title to its ‘reduced . . . 

reservation,’” which the United States promised would be “‘forever set apart as a home 

for said Creek Nation.’” Id. (alteration in original) (quoting Treaty with the Creeks, arts. 

3, 9, June 14, 1866, 14 Stat. 785, 786, 788, available at 1866 WL 18777).39 The Creek 

Nation also agreed to new governance arrangements in the 1866 treaty by permitting 

“such legislation as Congress and the President of the United States may deem necessary 

 39 As discussed below, the Creek Nation contends the 1866 borders remain the 

Reservation’s boundaries today. 
- 61 - 

for the better administration of justice and the protection of the rights of person and 

property within the Indian [T]erritory,”40 including the establishment of courts in the 

Indian Territory “with such jurisdiction and organized in such manner as Congress may 

by law provide.” 1866 Treaty, art. 10, 14 Stat. at 789. The Treaty also guaranteed 

Congress would not “interfere with or annul . . . present tribal organization, rights, laws, 

privileges, [or] customs.” Id.

c. 1867 Constitution and government 

“In 1867, the Creeks established a written constitutional form of government 

which included a separation of powers into executive, legislative and judicial branches.” 

Muscogee (Creek) Nation v. Hodel, 851 F.2d 1439, 1441 (D.C. Cir. 1988). 

d. Early congressional regulation of modern-day Oklahoma 

“In 1889, Congress created a special federal court of limited jurisdiction in the 

Indian Territory, which at that time encompassed most of present-day Oklahoma.” 

Indian Country, U.S.A., 829 F.2d at 977. 

In 1890, “Congress carved the Territory of Oklahoma out of the western half of 

the Indian Territory.” Id. “The lands in the east held by the Five Civilized Tribes 

remained Indian Territory, subject only to federal and tribal authority.” Id. Also in 1890, 

 40 “Although most of what is today Oklahoma was once the ‘Indian Territory,’ 

after the creation of Oklahoma Territory in 1890, the phrase referred to the eastern 

portion of present-day Oklahoma encompassing the lands of the Five Civilized 

Tribes, plus lands of other tribes situated in the extreme northeastern corner of the 

state.” Indian Country, U.S.A., 829 F.2d at 969 n.2. “No territorial government was 

ever created in the reduced Indian Territory, and it remained subject directly to tribal 

and federal governance.” Id. at 974. 
- 62 - 

“Congress expanded the civil and criminal jurisdiction of the special United States court 

in the diminished Indian Territory.” Id. Congress provided that certain laws from 

neighboring Arkansas would apply in Indian Territory, provided they were “not locally 

inapplicable or in conflict . . . with any law of Congress.” Id. (quotations omitted). “The 

tribes, however, retained exclusive jurisdiction over all civil and criminal disputes 

involving only tribal members, and the incorporated laws of Arkansas did not apply to 

such cases.” Id. 

e. The push for allotment 

“During the 1880s and 1890s, the white population within the Indian Territory 

grew dramatically.” Id. at 977. “[T]he white newcomers were frustrated by the 

communal tenure of the Indian lands, and pressured Congress to break up the tribal land 

base, attach freely alienable individual title to the land, and eventually create a new 

state.” Id. 

As already mentioned, the objectives, among others, of this allotment policy “were 

to end tribal land ownership and to substitute private ownership, on the view that private 

ownership by individual Indians would better advance their assimilation as selfsupporting members of our society and relieve the Federal Government of the need to 

continue supervision of Indian affairs.” N. Cheyenne Tribe v. Hollowbreast, 425 U.S. 

649, 650 & n.1 (1976) (discussing General Allotment Act). The General Allotment Act 

did not apply to the Five Civilized Tribes, see Indian Country, U.S.A., 829 F.2d at 977, 

but by separate means Congress encouraged the Five Civilized Tribes to allot their lands. 
- 63 - 

“In 1893, reflecting federal policies to forcibly assimilate Indians into the nonIndian culture and to eventually create a new state in the Indian Territory, Congress 

created the Dawes Commission to negotiate with the Five Civilized Tribes . . . .” Id. 

“The Five Civilized Tribes, however, refused to negotiate with the Dawes Commission, 

and Congress—still unsure of the scope of its authority to forcibly dispose of tribal 

lands[41]—began to force the issue by placing restrictions on the Indian 

governments . . . .” Id. 

In 1897, Congress imposed several measures to force the Creek Nation’s 

agreement to the allotment policy. Congress (1) “provid[ed] that the body of federal law 

in Indian Territory, which included the incorporated Arkansas laws, was to apply 

irrespective of race”; (2) broadened federal court jurisdiction, thereby divesting Creek 

tribal courts of exclusive jurisdiction over cases involving only Creeks; and (3) subjected 

Creek legislation to presidential veto. Id. at 978 (quotations omitted). 

An 1898 law, the Curtis Act, continued the campaign for allotment by 

“abolish[ing] the existing Creek court system and render[ing] then-existing tribal laws 

unenforceable in the federal courts.” Id. It also “provided for forced allotment and 

termination of tribal land ownership without tribal consent unless the tribe agreed to 

allotment.” Muscogee (Creek) Nation, 851 F.2d at 1441. 

 41 In 1903, the Supreme Court decided Congress can unilaterally abrogate 

treaties with Indian nations. See Lone Wolf, 187 U.S. at 566-68; see also Parker, 136 

S. Ct. at 1081 n.1; Woodward, 238 U.S. at 294, 304-05; Cohen at 198 & n.121. 
- 64 - 

f. Allotment and aftermath 

“In 1901, the Creek Nation finally agreed to the allotment of tribal lands.” Indian 

Country, U.S.A., 829 F.2d at 978. The 1901 Original Allotment Agreement (“Original 

Agreement” or “Agreement”) provided: “All lands of said tribe, except as herein 

provided, shall be allotted among the citizens of the tribe . . . so as to give each an equal 

share of the whole in value . . . .” Original Agreement, ch. 676, ¶ 3, 31 Stat. 861, 862 

(Mar. 1, 1901). “Although the vast majority of Creek Nation lands were allotted or sold, 

some lands remained in tribal ownership under the original treaty-based fee patents.” 

Indian Country, U.S.A., 829 F.2d at 978. The Agreement exempted certain lands from 

allotment, such as railroad sites and lands for Creek schools and courthouses. ¶ 24, 31 

Stat. at 868. It also allowed some non-Indians to purchase lands within town sites. See 

¶¶ 10-11, 31 Stat. at 865-66. In 1902, a Supplemental Allotment Agreement 

(“Supplemental Agreement”) made certain amendments. See generally Supplemental 

Agreement, ch. 1323, 32 Stat. 500 (June 30, 1902).42

The Original Agreement, in addition to providing for allotment, addressed 

governance. It made clear the Creek courts, already abolished in 1898, were not being reestablished. ¶ 47, 31 Stat. at 873. The Agreement continued presidential review of Creek 

laws “affecting the lands of the tribe, of individuals after allotment.” ¶ 42, 31 Stat. at 

872. Further, it anticipated the total elimination of the Creek government: “The tribal 

government of the Creek Nation shall not continue longer than March fourth, nineteen 

 42 We discuss these statutes in greater detail below as part of our step-one 

Solem analysis. 
- 65 - 

hundred and six, subject to such further legislation as Congress may deem proper.” ¶ 46, 

31 Stat. at 872. 

As the termination date approached, however, “much remained to be done.” 

Harjo v. Kleppe, 420 F. Supp. 1110, 1126 (D.D.C. 1976), aff’d sub nom. Harjo v. 

Andrus, 581 F.2d 949 (D.C. Cir. 1978). “[I]t was apparent that the affairs of the tribes 

could not be wound up by the date set,” and “Congress in early 1906 debated and enacted 

the ‘Five Tribes Act.’” Id. (citing ch. 1876, 34 Stat. 137 (Apr. 26, 1906)). 

In the Five Tribes Act, “Congress expressly delayed any plans to terminate the 

tribes, and provided that the tribal governments ‘are hereby continued in full force and 

effect.’” Indian Country, U.S.A., 829 F.2d at 978 (quoting § 28, 34 Stat. at 148). 

Congress never dissolved the Creek government; it has enjoyed continuous and 

uninterrupted existence. Even while Congress contemplated the future dissolution of the 

tribal government, the Creek Nation continued to exercise taxing authority within its 

boundaries as confirmed by a decision of the Eighth Circuit, our predecessor court, which 

then had jurisdiction over the Indian Territory. See Buster v. Wright, 135 F. 947, 951-52 

(8th Cir. 1905) (concluding the Creek Nation retained power “to fix the terms upon 

which noncitizens might conduct business within its territorial boundaries” and had not 

“los[t] the power to govern the people within its borders”), appeal dismissed, 203 U.S. 

599 (1906). 

g. Creation of Oklahoma 

Months after preserving and extending the Creek tribal government in 1906, 

Congress passed the Oklahoma Enabling Act, ch. 3335, 34 Stat. 267 (June 16, 1906). It 
- 66 - 

allowed the Territory of Oklahoma, together with the Indian Territory, to apply for 

statehood. This law and its 1907 amendment “provided that federal Article III courts 

would succeed the special United States court in the Indian territory with respect to all 

cases arising under the Constitution, laws, or treaties of the United States.” Indian 

Country, U.S.A., 829 F.2d at 978. In addition, new state courts “were to succeed the 

Indian territory courts with respect to the remaining nonfederal cases.” Id. “The 

enabling act also provided that ‘the laws in force in the Territory of Oklahoma, as far as 

applicable, shall extend over and apply to said State.’” Id. (emphasis omitted) (quoting 

§ 13, 34 Stat. at 275). “Finally, the enabling act preserved the authority of the federal 

government over Indians and their lands, and required the State to disclaim all right and 

title to such lands.” Id. (quotations omitted). Oklahoma entered the Union in 1907. See 

Proclamation, 35 Stat. 2160-61 (Nov. 16, 1907). 

h. Away from allotment 

The 1930s saw another shift in federal policy as “Congress repudiated the practice 

of allotment” and passed the Indian Reorganization Act (“IRA”). Atkinson Trading 

Co. v. Shirley, 532 U.S. 645, 650 n.1 (2001). See generally Cohen at 79-84. The IRA, 

enacted in 1934, revitalized tribal “self-government pursuant to constitutions” and 

allowed “tribes to organize for economic purposes pursuant to corporate charters.” 

Muscogee (Creek) Nation, 851 F.2d at 1442. The Creek Nation was excluded from the 

IRA, but, two years later in 1936, Congress passed the Oklahoma Indian Welfare Act 

(“OIWA”), which covered the Creek Nation and, “like the IRA, provided for 
- 67 - 

constitutional governments and corporate charters.” Id.; see OIWA, ch. 831, 49 Stat. 

1967 (June 26, 1936). 

In a 1943 case concerning Oklahoma real estate taxes, the Supreme Court 

acknowledged the Creek Nation’s continuing vitality: “Thus far Congress has not 

terminated [its guardianship] relation with respect to the Creek Nation and its members. 

That Nation still exists, and has recently been authorized to resume some of its former 

powers.” Bd. of Cty. Comm’rs v. Seber, 318 U.S. 705, 718 (1943) (citations and footnote 

omitted) (citing OIWA). In sum, following allotment, Congress re-empowered the Creek 

Nation’s government, which it had never dissolved. 

i. Public Law 280 

Policy shifted again in the post-World War II period, known as the “termination 

era,” as Congress focused on assimilating Indians and ending the United States’ trust 

relationship with many Indian tribes. See Cohen at 92-93. 

One important law enacted in 1953, “Public Law 280,” addressed state 

jurisdiction. It allowed some states “to assert limited civil and broad criminal jurisdiction 

in Indian country.” Indian Country, U.S.A., 829 F.2d at 980 (citing ch. 505, 67 Stat. 588 

(Aug. 15, 1953) (codified as amended at 18 U.S.C. § 1162, 25 U.S.C. §§ 1321-26, 28 

U.S.C. § 1360)). Public Law 280, “delegat[ed] to five, later six, states jurisdiction over 

most crimes . . . throughout most of the Indian country within their borders.” Cohen at 
- 68 - 

537 (footnotes omitted).43 It “offered any other state the option of accepting the same 

jurisdiction,” until a 1968 amendment “made subsequent assumptions of jurisdiction 

subject to Indian consent.” Id. at 537-38; see 25 U.S.C. §§ 1321(a), 1322(a), 1326. 

Oklahoma chose not to use Public Law 280 to assert jurisdiction. State officials 

regarded the law as unnecessary because, in their view, Oklahoma already had full 

jurisdiction over Indians and their lands. Indian Country, U.S.A., 829 F.2d at 980 n.6. 

But “[t]he State’s 1953 position that Public Law 280 was unnecessary for 

Oklahoma . . . [has] been rejected by both federal and state courts.” Id. (citing Tenth 

Circuit and Oklahoma cases). Oklahoma has not obtained tribal consent following the 

1968 amendment and has thus never acquired jurisdiction over Indian country through 

Public Law 280. See Cravatt, 825 P.2d at 279 (“The State of Oklahoma has never acted 

pursuant to Public Law 83-280.” (quoting State v. Klindt, 782 P.2d 401, 403 (Okla. Crim. 

App. 1989))); see also Cohen at 537-38 & n.47. 

The termination era began to fade in the late 1950s as federal Indian policy shifted 

again toward tribal self-government and self-determination. See Cohen at 93. 

j. A new Creek Constitution 

In 1979, under OIWA, the Creek Nation adopted a new constitution “providing for 

three separate branches of government, including a judiciary.” Muscogee (Creek) Nation, 

851 F.2d at 1442. In 1982, when the tribe sought funding from the Bureau of Indian 

Affairs (“BIA”) for its court system, the D.C. Circuit confronted the question whether the 

 43 The six states are Alaska, California, Minnesota, Nebraska, Oregon, and 

Wisconsin. See id. at 537 nn.44-45. 
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Creek Nation could operate a court system at all in light of Congress’s earlier abolition of 

the tribal courts. The D.C. Circuit held that OIWA had repealed the earlier elimination of 

Creek courts. Id. at 1444-46. “[T]he Muscogee (Creek) Nation has the power to 

establish Tribal Courts with civil and criminal jurisdiction, subject, of course, to the 

limitations imposed by statutes generally applicable to all tribes.” Id. at 1446-47 

(emphases omitted). 

k. Our decision in Indian Country, U.S.A.

 In 1987, we held in Indian Country, U.S.A., that the Creek Reservation continues 

to exist, at least in some form. The case arose when Oklahoma tried to tax a bingo 

operation located on Creek Nation land that had never been allotted and was still held by 

the Tribe. 829 F.2d at 970. Oklahoma argued the site was not a reservation and therefore 

subject to the State’s taxation. Id. at 973. We rejected that argument and explained the 

site at issue was “part of the original treaty lands still held by the Creek Nation, with title 

dating back to treaties concluded in the 1830s and patents issued in the 1850s. These 

lands historically were considered Indian country and still retain their reservation status 

within the meaning of 18 U.S.C. § 1151(a).” Id. at 976. Accordingly, we invalidated the 

Oklahoma tax. Id. at 987. Our holding, however, was limited. Because the case 

concerned land that had never been allotted and was still held by the Tribe, we had—as 

we twice made clear—no cause to decide whether Congress had disestablished the 

Reservation’s 1866 exterior boundaries. Id. at 975 n.3, 980 n.5. 

We now confront that question. 
- 70 - 

3. Applying Solem

 We must apply the Solem framework to determine whether Congress has 

disestablished the Creek Reservation. If the Reservation’s boundaries are still intact, the 

crime occurred within them. See Aplt. Br. at 20; Aplee. Br. at 11-12. The State argues, 

however, that Congress disestablished the Creek Reservation in the early twentieth 

century. Mr. Murphy and the Creek Nation disagree. 

 We conclude Congress has not disestablished the Creek Reservation. The most 

important evidence—the statutory text—fails to reveal disestablishment at step one. 

Instead, the relevant statutes contain language affirmatively recognizing the Creek 

Nation’s borders. The evidence of contemporaneous understanding and later history, 

which we consider at steps two and three, is mixed and falls far short of “unequivocally

reveal[ing]” a congressional intent to disestablish. Parker, 136 S. Ct. at 1080 (emphasis 

in original) (quoting Solem, 465 U.S. at 471). Because our application of the Solem 

framework shows Congress has not disestablished the Creek Reservation, the crime in 

this case occurred within the Reservation’s boundaries. The State of Oklahoma 

accordingly lacked jurisdiction to prosecute Mr. Murphy. 

a. Step One: Statutory Text 

 The State argues the Creek Reservation did not survive a series of statutes that 

allotted Creek lands and created the State of Oklahoma. The State “acknowledges that no 

relevant act of Congress contains language which expressly disestablished the Creek 

Nation reservation through the use of such words as ‘cede’ or ‘relinquish.’” Aplee. Br. at 
- 71 - 

57. It attempts to show disestablishment based on the collective weight of eight different 

laws enacted between 1893 and 1906. 

At oral argument, we asked whether the State was relying on any particular 

statutory language in any of these laws for its step-one argument: 

THE COURT: Where do you find your strongest statutory language that the 

Creek Reservation was diminished or disestablished? 

THE STATE: You have to start before the 1901 Allotment Act. . . . In 

1893, Congress passed the law which set up the Dawes Commission. 

THE COURT: I asked for statutory language, not a general overview of a 

statute. Where in any of these acts is there language that disestablished the 

Reservation? 

THE STATE: In that 1893 Act, Congress said that they were appointing 

the Dawes Commission to negotiate with the Tribes in whatever means 

necessary in order to create a State embracing the Indian Territory and to 

substitute for the tribal governments a State government. 

THE COURT: But that didn’t happen. 

THE STATE: The—well, I think that’s what we’re arguing about here 

today. 

THE COURT: Well, let’s go to 1901. 

. . . . 

THE COURT: Where’s the disestablishment in the Act? You haven’t 

given us in your brief or anything you said today any language from any act 

that shows disestablishment. And isn’t that the first Solem factor? 

THE STATE: Well, yes, Your Honor, but [Congress does not] have to use 

the words . . . . 

THE COURT: Well, okay, even if they don’t use the words. Can you give 

us some examples? 

THE STATE: Of course— 
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THE COURT: Counsel, on the same point, I think . . . what we’re looking 

for is what has been given in other Supreme Court cases where they have 

seized on language whether it’s ‘public domain’ or whether it’s the word 

‘cede’ or whether it’s a lump-sum payment. Those—there are words in a 

sentence in those acts, and what we’re asking is can you show us words in a 

sentence in the acts that you’re talking about that are equal or equivalent of 

those words rather than a general summary sort of an answer? We’re 

looking for specific language. 

THE STATE: Other than the entire context of what happened, I cannot. . . . 

I still argue that the acts themselves are sufficient, but, if not, under Osage 

Nation, when you look at the step-two evidence here, it’s overwhelming. 

THE COURT: Well, so your answer is that you don’t have any language? 

THE STATE: I do not have a specific section that I can look at and say this 

is— 

THE COURT: And so the argument that I just heard is that it’s context. 

Your word. 

THE STATE: Correct. If you look at all of the acts together, which the 

Supreme Court has said you can do—no I can’t—when you look at the 

specific language which provides for the allotment, it doesn’t use words 

[like] ‘cession,’ it doesn’t provide for a fixed sum, those sorts of things that 

have happened in other cases. But when you go all the way back to when 

Congress started passing acts that led up to the 1901 Act, it’s very clear that 

their purpose was to substitute for the tribal government a State government 

and put the area of the Five Tribes under State law. 

Oral Arg. at 50:23-54:07. This exchange aligns with the position taken in the State’s 

brief. See Aplee. Br. at 57. At step one, the State does not rely on any particular 

statutory text but rather on all eight acts in general because it does not “have a specific 

section” in any law that accomplished disestablishment. Oral Arg. at 53:18-21. 

 We question whether the State’s argument based on the overall thrust of eight 

different laws deserves to be called a step-one argument. At step one, “we start with the 
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statutory text.” Parker, 136 S. Ct. at 1079 (emphasis added); see also Solem, 465 U.S. at 

470 (“The most probative evidence of congressional intent is the statutory language used 

to open the Indian lands.” (emphasis added)); Wyoming, 849 F.3d at 869 (“First, we look 

to the text of the statute . . . .”). The State does not present us with any particular 

statutory language to analyze. Our independent review of the laws has not uncovered a 

provision on which the State might rely, either. 

 Assuming the State’s cumulative-effect argument belongs in step one where we 

consider text, as opposed to step two where we consider context, we proceed to (i) review 

each of the eight statutes the State relies on, paying particular attention to the 1901 

Original Allotment Agreement, and then (ii) conduct our step-one analysis based on those 

laws. The absence of statutory language in any of these acts disestablishing the Creek 

Reservation leads us to conclude the State “ha[s] failed at the first and most important 

step.” Parker, 136 S. Ct. at 1080. In fact, the step-one evidence shows Congress 

recognized the existence of the Creek Nation’s borders. And the State’s attempts to shift 

the inquiry into questions of title and governance are unavailing. 

i. The statutes 

We discuss the State’s eight statutes in chronological order. 

1) Act of March 3, 1893, ch. 209, 27 Stat. 612 (“1893 Act”) 

 The State first draws our attention to an appropriations law providing money for 

the federal government to fulfill treaty obligations with Indian tribes throughout the 

country. With respect to the Creek Nation, the 1893 Act provided funding for treaties 
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from 1790 to 1866 to pay for, among other things, annuities, blacksmithing, iron, steel, 

and interest on other funds. See 27 Stat. at 616-17. 

In addition to providing funds, Congress gave “the consent of the United States” to 

the allotment of lands “within the limits of the country occupied by the Cherokees, 

Creeks, Choctaws, Chickasaws, and [S]eminoles.” § 15, 27 Stat. at 645.44 Congress 

instructed the President to appoint a commission, which became known as the Dawes 

Commission, to negotiate with the Creek Nation and the other tribes 

for the purpose of the extinguishment of the national or tribal title to any 

lands within that Territory now held by any and all of such nations or 

tribes, either by cession of the same or some part thereof to the United 

States, or by the allotment and division of the same in severalty among the 

Indians of such nations or tribes, respectively, as may be entitled to the 

same, or by such other method as may be agreed upon between the several 

nations and tribes aforesaid, or each of them, with the United States, with a 

view to such and adjustment, upon the basis of justice and equity, as may, 

with the consent of such nations or tribes of Indians, so far as may be 

necessary, be requisite and suitable to enable the ultimate creation of a State 

or States of the Union which shall embrace the lands within said India[n] 

Territory. 

§ 16, 27 Stat. at 645. Congress provided the negotiators’ priorities should be “first” to 

procure an allotment of lands “as may be agreed upon as just and proper to provide for 

each such Indian a sufficient quantity of land for his or her needs.” § 16, 27 Stat. at 646. 

“[S]econdly,” the negotiators were to “procure the cession, for such price and upon such 

 44 The law provided that tribal members who accepted an allotment would be 

deemed U.S. citizens. § 15, 27 Stat. at 645. The Supreme Court has explained that 

“the extension of citizenship status to Indians does not, in itself, end the powers 

given Congress to deal with them.” United States v. John, 437 U.S. 634, 653-54 

(1978). “Nor has [U.S.] citizenship prevented the Congress . . . from continuing to 

deal with the tribal lands of the Indians.” Tiger v. W. Inv. Co., 221 U.S. 286, 312 

(1911). See generally Cohen at 922-24 (discussing citizenship). 
- 75 - 

terms as shall be agreed upon, of any lands not found necessary to be so allotted or 

divided, to the United States.” Id. Although Congress wanted to pursue both allotment 

and the sale of surplus lands to the United States, it granted the commissioners 

power to negotiate any and all such agreements as . . . shall be found 

requisite and suitable to such an arrangement of the rights and interests and 

affairs of such nations, tribes, bands, or Indians, or any of them, to enable 

the ultimate creation of a Territory of the United States with a view to the 

admission of the same as a state in the Union. 

Id. The 1893 Act established the Dawes Commission to commence negotiations; it did 

not disestablish the Creek Reservation. 

2) Act of June 10, 1896, ch. 398, 29 Stat. 321 (“1896 Act”) 

 The State next relies on an 1896 appropriations law in which Congress again 

provided money to fulfill treaty obligations with the Creek Nation. 29 Stat. 326-27. The 

1896 Act declared it “the duty of the United States to establish a government in the 

Indian Territory” for the purpose of “rectify[ing] the many inequalities and 

discriminations” in the Territory and “afford[ing] needful protection to the lives and 

property of all citizens and residents thereof.” 29 Stat. at 340. The Dawes Commission 

was directed “to continue the exercise of the authority already conferred upon them by 

law and endeavor to accomplish the objects heretofore prescribed to them.” 29 Stat. at 

339. Nothing in this law altered the Reservation’s boundaries. 

3) Act of June 7, 1897, ch. 3, 30 Stat. 62 (“1897 Act”) 

 The State’s third statute is an 1897 appropriations statute in which Congress again 

approved funds to satisfy obligations arising from treaties with the Creek Nation. See 30 

Stat. at 68. Congress also provided that, beginning in 1898, the United States courts 
- 76 - 

would have “original and exclusive jurisdiction” over both civil and criminal cases in the 

Indian Territory. 30 Stat. at 83. The laws of the United States and of neighboring 

Arkansas, which were already in force in the Indian Territory, would apply “to all 

persons therein, irrespective of race.” Id. In addition, Congress legislated that, beginning 

in 1898, “all acts, ordinances, and resolutions” of the legislative bodies of the Five 

Civilized Tribes would be subject to presidential veto. 30 Stat. at 84. This provision did 

not apply to tribal legislation related to negotiations with the Dawes Commission. Id. 

The law also provided that if any of the Tribes reached a negotiated agreement with the 

Dawes Commission, that new agreement, once ratified, would “suspend” any provisions 

of the 1897 Act inconsistent with the agreement. Id. In sum, this statute altered federal 

and tribal governance arrangements in the Indian Territory, but it did not erase the Creek 

Reservation’s borders. 

4) “Curtis Act,” ch. 517, 30 Stat. 495 (June 28, 1898) 

In 1898, Congress imposed new limitations on the powers of tribal governments in 

the Indian Territory. Under the Curtis Act, tribal courts would be abolished within the 

year. § 28, 30 Stat. at 504-05. All cases would be transferred to the United States court 

in the Indian Territory, and tribal laws would be unenforceable. §§ 26, 28, 30 Stat. at 

504-05. Congress instructed the Secretary of the Interior (“Secretary”) to stop directing 

federal payments to tribal governments and to begin paying individual tribal members 

directly. § 19, 30 Stat. at 502. The Curtis Act included a default allotment scheme that 

would take effect following completion of the tribal citizenship rolls and survey of tribal 
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lands. § 11, 30 Stat. at 497-98.45 But, as discussed in the next section, Congress and the 

Creek Nation later agreed to a different allotment plan. The Curtis Act made the most 

significant governance changes to date, but it did not address the Creek Reservation’s 

borders. 

5) “Original Allotment Agreement,” ch. 676, 31 Stat. 861 (March 1, 1901) 

 The Creek Nation reached a negotiated agreement with the federal government for 

the allotment of tribal lands, and Congress passed it into law in 1901. The Original 

Agreement, supplemented by another agreement we discuss below, specified that its 

terms would control over conflicting federal statutes and treaty provisions, but it “in no 

wise affect[ed]” treaty provisions consistent with the Agreement. ¶¶ 41, 44, 31 Stat. at 

872. Our discussion of the Original Agreement covers (a) the allotment of Creek lands, 

(b) provisions concerning town sites, (c) lands reserved for tribal purposes, and (d) the 

Agreement’s plan for future governance within the borders of the Creek Reservation. 

a) Allotment 

 The Agreement’s central purpose was to facilitate a transfer of title from the Creek 

Nation generally to its members individually. It provided that “[a]ll lands belonging to 

the Creek tribe,” except for town sites and lands reserved for public purposes, should be 

 45 The Curtis Act also contained a proposed agreement between the federal 

government and the Creek Nation providing for the allotment of tribal lands, see 

§ 30, 30 Stat. at 514-19, but the Creek Nation did not ratify the agreement. A 

different allotment agreement was reached in 1901, and we discuss it in the next 

section. 
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appraised and allotted “among the citizens of the tribe.” ¶¶ 2-3, 31 Stat. at 862-63.46 

Tribal citizenship rolls determined an individual’s eligibility for an allotment. ¶¶ 3, 28, 

31 Stat. at 862-63, 869-70.47 The United States would bear the costs of “the survey, 

platting, and disposition” of lots, except where town authorities undertook those efforts. 

¶ 34, 31 Stat. at 871. 

 Creek citizens would receive an allotment of 160 acres valued at $6.50 per acre. 

¶ 3, 31 Stat. at 862. Recognizing that the tracts would not have the same value, the Act 

provided that “the residue of lands” not otherwise allotted or reserved—the surplus 

lands—would be used “for the purpose of equalizing allotments.” ¶ 9, 31 Stat. at 864. 

Creek citizens with more valuable lots could have the excess value charged against their 

entitlement to other tribal funds. ¶ 3, 31 Stat. at 862-63. The Tribe’s funds from earlier 

treaties were made available to equalize allotments. ¶ 27, 31 Stat. at 869. 

The assignment of allotments was not random. Creek citizens who had built 

improvements or possessed particular lands could select those lands. See ¶¶ 3, 5-6, 31 

 46 The Agreement defined “citizen” as “a member . . . of the Muskogee tribe or 

nation of Indians.” ¶ 1, 31 Stat. at 862. The Act stipulated “the words ‘Creek’ and 

‘Muskogee’” were synonymous. Id.

47 The Agreement provided citizens of the Seminole Nation who had settled in 

lands belonging to the Creeks were allowed to take allotments in Creek lands, and the 

same terms were extended to Creek citizens in Seminole lands. ¶ 36, 31 Stat. at 871. 
- 79 - 

Stat. at 862-63.48 The Agreement provided for dispute resolution when Creek citizens 

contested their right to select certain tracts. ¶ 6, 31 Stat. at 863. 

 The Tribe’s principal chief was assigned the task of transferring title from the 

Tribe to the individual allottees. ¶ 23, 31 Stat. at 867-68. Each deed conveyed to the 

allottee “all right, title, and interest of the Creek Nation and of all other citizens in and to 

the lands embraced in [the] allotment certificate.” ¶ 23, 31 Stat. at 868. For the allottee, 

acceptance of the deed represented “assent to the allotment and conveyance of all the 

lands of the tribe” and a “relinquishment of all his right, title, and interest in” the rest of 

the allotted lands as provided in the Agreement. Id.

The Secretary of the Interior was supposed to approve the conveyances, and this 

approval would serve “as a relinquishment” to the Creek citizen “of all the right, title, and 

interest of the United States in and to the lands embraced in [the] deed.” Id.49 But the 

Agreement provided for various forms of continuing federal supervision. For example, it 

restricted the ability of allottees to encumber or alienate their lands without approval 

from the Secretary. ¶ 7, 31 Stat. at 863-64. A five-year restriction period applied to 

 48 For members of the Creek Nation unable to select lands for themselves—

children, “prisoners, convicts, and aged and infirm persons”—the Agreement 

provided a mechanism for selection on their behalf and in “the best interests of such 

parties.” ¶ 4, 31 Stat. at 863; see also ¶¶ 7, 23, 31 Stat. at 863-64, 867-68. 

49 The United States was understood to have a reversionary interest in the 

Tribe’s lands. See 1833 Treaty, art. 3, 7 Stat. at 419 (providing the Creek Nation’s 

fee simple interest would continue “so long as they shall exist as a nation, and 

continue to occupy the country hereby assigned them”); § 15, 27 Stat. at 645 

(consenting that “upon the allotment of the lands held by [the Five Civilized Tribes] 

the reversionary interest of the United States therein shall be relinquished and shall 

cease”). 
- 80 - 

allotted lands generally, but a 21-year restriction applied to a subset of an allottee’s 

lands—the 40 acres selected as a homestead. Id. Creek citizens were allowed to rent 

their allotments, subject to restrictions. ¶ 37, 31 Stat. at 871. 

b) Town sites 

 The Agreement excluded “town sites” from allotment. ¶¶ 2, 24(a), 31 Stat. at 862, 

868. Towns “in the Creek Nation” with more than 200 people would be “surveyed, laid 

out, and appraised.” ¶ 10, 31 Stat. at 864. Town commissions, which were to include 

Creek commissioners, would administer the sale of town lots “for the benefit of the 

tribe.” ¶ 10, 31 Stat. at 865. “Any person,” not just Creek citizens, “in rightful 

possession of any town lot having improvements thereon” was given the opportunity to 

purchase the lot. ¶ 11, 31 Stat. at 866; see also ¶¶ 12-13, 31 Stat. at 866 (providing 

similar purchase opportunities to people with residential or business holdings in towns). 

Town sites lacking improvements would be sold at public auction within 12 months of 

their appraisal. ¶ 14, 31 Stat. at 866. Once sold, town lots were subject to municipal 

taxation. ¶ 17, 31 Stat. at 867.50 

 Some town sites were not available for purchase. The Agreement instructed town 

surveyors to set aside lands for cemeteries, ¶ 18, 31 Stat. at 870, and lots where church 

houses had been erected were conveyed to the churches at no cost, ¶ 21, 31 Stat. at 867. 

Educational institutions in Muskogee and other towns “in the Creek Nation” were given 

 50 The Agreement gave municipal corporations authority to issue bonds and 

borrow money for public projects such as for “the construction of sewers, lighting 

plants, waterworks, and schoolhouses.” ¶ 25, 31 Stat. at 869. 
- 81 - 

the chance to purchase lands at a discount. ¶ 20, 31 Stat. at 867. The United States 

reserved a right to “purchase, in any town in the Creek Nation, suitable land for courthouses, jails, and other necessary public buildings for its use, by paying the appraised 

value thereof.” ¶ 19, 31 Stat. at 867. 

c) Lands reserved for tribal purposes 

 In addition to town sites, the Agreement provided certain other lands would be 

“reserved from the general allotment” scheme. ¶ 24, 31 Stat at 868. Most of the reserved 

lands were for tribal purposes: Creek schools and orphan homes, ¶ 24(c)-(l), 31 Stat. at 

868; cemeteries, ¶ 24(m), 31 Stat. at 868; a university, ¶ 24(n), 31 Stat. at 868-69; Creek 

courthouses, ¶ 24(o), 31 Stat. at 869; and churches and schools outside of towns, ¶ 24(p), 

31 Stat. at 869. If and when these lands were no longer “needed for the purposes for 

which they are at present used,” the Agreement provided they should be sold at auction 

“to citizens only.” ¶ 24, 31 Stat. at 869. 

d) Future governance 

The Agreement contemplated roles for both the Tribe and the federal government 

in the post-allotment governance of the Creek Nation. It recognized Creek jurisdiction as 

continuing but also limited and temporary. It also provided for ongoing federal 

regulation and defined federal responsibilities by reference to the Creek Nation’s borders. 

A continuing role for the tribal government was apparent in a provision 

recognizing Creek legislative authority over both unallotted tribal lands and allotted 

lands. ¶ 42, 31 Stat. at 872. “[A]ct[s], ordinance[s], [and] resolution[s]” of the Creek 

National Council remained subject to presidential approval, but the Agreement 
- 82 - 

recognized the Creek government’s authority to regulate “the lands of the tribe” as well 

as lands belonging to “individuals after allotment.” Id.; see also id. (providing for Creek 

regulation, with presidential oversight, of “the moneys or other property of the tribe, or of 

the citizens thereof”). The Agreement also provided that Creek law would determine 

issues of descent and distribution. ¶¶ 7, 28, 31 Stat. at 864, 870.51 

Under the Agreement, the Tribe continued to exercise authority over its finances: 

“No funds belonging to said tribe shall hereinafter be used or paid out for any purposes 

by any officer of the United States without consent of the tribe, expressly given through 

its national council, except as herein provided.” ¶ 33, 31 Stat. at 870; see also ¶ 31, 31 

Stat. at 870 (requiring that the federal government provide monthly, itemized financial 

reports to the principal chief regarding the Tribe’s funds in the U.S. Treasury). The 

Agreement assigned the Creek National Council responsibility for appropriating money 

to operate tribal schools. ¶ 40, 31 Stat. at 872. It also authorized lawsuits “in the name of 

the principal chief, for the benefit of the tribe” to enforce liens against the property of 

people who defaulted on their purchase of property in towns. ¶ 30, 31 Stat. at 870. 

 Despite these recognitions of continuing Creek governmental authority, the 

Agreement contemplated this authority would be temporary. It said the tribal 

government would not continue past March 4, 1906, “subject to such further legislation 

as Congress may deem proper.” ¶ 46, 31 Stat. at 872. In other words, the Agreement set 

 51 Creek courts, already abolished under the Curtis Act, were not reestablished. 

¶ 47, 31 Stat. at 873. 
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a date for the dissolution of the tribal government while recognizing a later Congress 

could change course. Congress did change course, and dissolution never happened. 

 In addition to providing a limited role for tribal government, the Agreement 

assigned powers and responsibilities to the United States, many of which were expressly 

tied to the Creek Nation’s territorial boundaries. For example, the Secretary was 

authorized to collect a grazing tax when cattle were brought “into the Creek Nation” and 

grazed on unallotted lands. ¶ 37, 31 Stat. at 871. Revenue from the tax was “for the 

benefit of the tribe.” Id. Similarly, although Creek citizens could dispose of timber on 

their allotments, no timber could be taken from unallotted lands “without payment of [a] 

reasonable royalty” and under conditions prescribed by the Secretary. ¶ 38, 31 Stat. at 

871. The mineral-leasing provisions from the Curtis Act were not to apply “in the Creek 

Nation.” ¶ 41, 31 Stat. at 872. And the United States agreed to maintain strict laws 

against the introduction of liquor “in said nation.” ¶ 43, 31 Stat. at 872.52

 To summarize, the Original Agreement shifted communal Creek land into 

individual allotments and provided for dissolution of the tribal government in the future. 

 52 The task of removing “objectionable” persons from the lands of Creek 

citizens fell to the Secretary of the Interior and the United States Indian agent. ¶ 8, 

31 Stat. at 864. 

The Secretary was also to administer the Creek school fund, and Creek schools 

were to be governed under the Secretary’s rules and regulations as well as “under 

Creek laws” subject to the Secretary’s oversight. ¶ 40, 31 Stat. at 871-72. The 

Agreement included a hiring preference for Creek citizens in teaching positions. 

¶ 40, 31 Stat. at 872. 

 
- 84 - 

It also reserved from allotment lands for tribal purposes and repeatedly recognized the 

continuing existence of the Creek Nation’s borders. 

6) “Supplemental Allotment Agreement,” ch. 1323, 32 Stat. 500 (June 30, 

1902) 

The 1902 Supplemental Allotment Agreement clarified the Original Agreement 

and made several amendments. Allotment-eligible lands would be appraised at no more 

than $6.50 per acre, not including improvements. ¶ 2, 32 Stat. at 500. The Dawes 

Commission was assigned exclusive jurisdiction to resolve the disputes of Creek citizens 

over the selection of particular allotments. ¶ 4, 32 Stat. at 501.53 The Supplemental 

Agreement made corrections to the Creek Nation’s citizenship rolls and addressed the 

situation of citizens entitled to an allotment who died before receiving it. ¶¶ 7-9, 32 Stat. 

at 501-02. 

The Supplemental Agreement provided that Arkansas law, not Creek law, would 

govern inheritance but said “only citizens of the Creek Nation, male and female, and their 

Creek descendants shall inherit lands of the Creek Nation.” ¶ 6, 32 Stat. at 501. 

Noncitizen heirs could inherit when there was no Creek descendent. Id. 

Anti-encumbrance and alienation provisions were reaffirmed and set to run from 

the date of the Supplemental Agreement. ¶ 16, 32 Stat. at 503. Restrictions on leases 

were also clarified. See ¶ 17, 32 Stat. at 504 (addressing leases for mineral extraction 

(prohibited), grazing (limited to one year), and agricultural purposes (limited to five 

 53 See also ¶ 5, 32 Stat. at 501 (providing for corrections when selected land 

did not include allottee’s home). 
- 85 - 

years)). Other parts of the Supplemental Agreement addressed public resources. See

¶ 13, 32 Stat. at 503 (providing for the purchase of land for parks within towns); ¶ 15, 32 

Stat. at 503 (subjecting Creek courthouse lands to allotment); ¶ 18, 32 Stat. at 504 

(regulating introduction of cattle “into the Creek Nation”). 

The Supplemental Agreement left in place the planned dissolution of the tribal 

government. It required the Secretary, following dissolution of the tribal government, to 

pay the Tribe’s remaining funds to the citizens of the Creek Nation. ¶ 14, 32 Stat. at 503; 

see also ¶ 19, 32 Stat. at 504 (requiring the Secretary “during the continuance of the tribal 

government” to defend allottees against claims on their land arising from illegal leases 

and conveyances). 

Overall, the Supplemental Agreement continued the policies embodied in the 

Original Agreement. It did not address the Creek Reservation’s borders except to 

recognize their existence. 

7) “Five Tribes Act,” ch. 1876, 34 Stat. 137, April 26, 190654

 The State relies on two more statutes, both from 1906.55 The first is the Five 

Tribes Act, in which Congress recognized and extended the Creek government’s 

existence while also imposing new limitations on its authority. It provided the Creek 

Nation’s “tribal existence and present tribal government[]” would “continue[] in full 

 54 The Five Tribes Act was passed after March 4, 1906, the date the Original 

Agreement had set for the dissolution of the Creek government, see ¶ 47, 31 Stat. at 

872, but Congress extended the Creek government’s existence before the deadline on 

March 2, 1906, see 34 Stat. 822. As this section discusses, the Five Tribes Act 

extended the Creek government again, this time indefinitely. 
- 86 - 

force and effect for all purposes authorized by law, until otherwise provided by law.” 

§ 28, 34 Stat. at 148. It continued presidential oversight of tribal legislation, and further 

restricted tribal legislative functions by limiting tribal governments to 30-day legislative 

sessions each year. Id. 

The Five Tribes Act gave new authority to the President and Secretary of the 

Interior. The President received authority to appoint a tribal citizen as principal chief 

when the principal chief died, became disabled, or refused or neglected to perform his 

duties. § 6, 34 Stat. at 139. The Secretary received power to approve land conveyances 

if the principal chief failed to act. Id. The Act also authorized the Secretary to “assume 

control and direction” of the Tribes’ schools in 1906 with the goal of retaining “tribal 

educational officers” and “the present system so far as practicable” until a “public school 

system” was established under a future territorial or state government. § 10, 34 Stat. at 

140-41. The Secretary received authorization to bring suit in the United States courts in 

the Indian Territory for the recovery of money or lands claimed by the Creek Nation. 

§ 18, 34 Stat. at 144.56

 55 The State contends these laws “carry less weight” because they were passed 

after the allotment agreements. Aplee. Br. at 62. This suggests the State considers 

the 1901-02 allotment agreements to be the legislative enactments in which Congress 

disestablished the Creek Reservation, yet the State includes the 1906 statutes in its 

step-one argument. We consider the text of the 1906 laws as step-one evidence, as 

opposed to step-three, later-history evidence, because statutory text is the concern of 

step one. See Parker, 136 S. Ct. at 1079 (“[W]e start with the statutory text . . . .”). 

56 Congress also assigned new powers at the town level. It provided for the 

operation of light and power companies within the Indian Territory and granted new 

Continued . . . 
- 87 - 

The Five Tribes Act continued many of the restrictions on allotted lands and 

amended others. Congress continued the Original Agreement’s provisions for the 

equalization of Creek allotments. § 2, 34 Stat. at 137-38. It also clarified that lands 

reserved for public purposes would “revert to the tribe and be disposed of as other surplus 

lands” when the land was no longer used for the public purpose for which it was 

reserved. § 14, 34 Stat. at 142. The Secretary was instructed to sell unallotted lands not 

otherwise provided for and deposit the proceeds into the Treasury for the Tribe’s benefit. 

§ 16, 34 Stat. at 143.57 New 25-year restriction periods against alienation and 

encumbrance were imposed on allotted lands, but allotted lands were immune from 

taxation “as long as the title remain[ed] in the original allottee.” § 19, 34 Stat. at 144. 

Allottees remained free to lease their lands, subject to restrictions. §§ 19-20, 34 Stat. at 

144-45.58

The Five Tribes Act provided for the future distribution of tribal property to Creek 

citizens. It abolished tribal taxes and instructed the Secretary to wind up claims against 

 

taxing powers to towns with more than two thousand people. See §§ 25-26, 34 Stat. at 

146-48. 

57 Purchasers of town lots who failed to make timely payments were liable to 

forfeit the purchase and have the Secretary re-sell the land at public auction. § 12, 34 

Stat. at 141-42. 

58 Congress made several changes to the laws of descent and inheritance. For 

allottees who died intestate and without heirs, their lands would revert to the Tribe or 

escheat to the future state or territorial government. § 21, 34 Stat. at 145. Adult Indian 

heirs were permitted to sell the lands they inherited, subject to the Secretary’s approval. 

§ 22, 34 Stat. at 145. Adult Indians were permitted to make wills, subject to court 

oversight when the will disinherited certain closely related family members. § 23, 34 

Stat. at 145. 
- 88 - 

the Tribe following the dissolution of the tribal government. § 11, 34 Stat. at 141. Tribal 

citizenship rolls would be finalized by March 4, 1907. §§ 1, 2, 34 Stat. at 137-38. The 

Secretary would eventually take possession of and sell tribal buildings, furniture, and 

lands. § 15, 34 Stat. at 143. Local governments—be they state, territorial, county, or 

municipal—received the first chance to buy; proceeds would be deposited in the Treasury 

for the benefit of the Tribe. Id.59 As had been the case in earlier acts, the Secretary was 

required to distribute the proceeds from the sale of tribal property to the Tribe’s members 

on a per capita basis. § 17, 34 Stat. at 143-44. 

 In a section labeled “Tribal lands to be held in trust,” the Act provided that, upon 

dissolution of the Five Tribes, tribal lands “shall not become public lands nor property of 

the United States, but shall be held in trust by the United States for the use and benefit” 

of the Tribes’ members and their heirs. § 27, 34 Stat. at 148. And, as mentioned above, 

the Act extended the tribal governments’ existence without setting a date for dissolution, 

providing only that they would continue “until otherwise provided by law.” § 28, 34 Stat. 

at 148. The Five Tribes Act thus recognized that the Creek Nation’s government 

continued to exist in “full force and effect,” and that, in the event of the future dissolution 

of the tribal government, “the land[] belonging to the . . . Creek [Nation]” would be held 

in trust by the United States for the Tribe. Id. It did not terminate the Reservation’s 

borders. 

 59 Later in 1906, Congress delayed the implementation of § 15—providing for 

the sale of tribal property—and clarified it would “not take effect until the date of the 

dissolution of the tribal governments of the Choctaw, Chickasaw, Cherokee, Creek, 

and Seminole tribes.” Act of June 21, 1906, ch. 3504, 35 Stat. 325, 342. 
- 89 - 

8) “Oklahoma Enabling Act,” ch. 3335, 34 Stat. 267 (June 16, 1906) 

 In the Oklahoma Enabling Act, the final statute the State relies on, Congress did 

not dissolve the Creek government, but it granted permission to the inhabitants of both 

the Territory of Oklahoma and the Indian Territory to adopt a constitution and seek 

admittance into the Union as the State of Oklahoma. § 1, 34 Stat. at 267-68. Congress 

imposed restrictions on the new state’s ability to affect Indians and Indian property. 

“[N]othing” in the state constitution was 

to limit or impair the rights of person or property pertaining to the Indians 

of said Territories (so long as such rights shall remain unextinguished) or to 

limit or affect the authority of the Government of the United States to make 

any law or regulation respecting such Indians, their lands, property, or other 

rights by treaties, agreement, law, or otherwise . . . . 

Id. Further, Congress required the people of the territories to 

forever disclaim all right and title in or to any unappropriated public lands 

lying within the boundaries thereof, and to all lands lying within said limits 

owned or held by any Indian, tribe, or nation; and that until the title to any 

such public land shall have been extinguished by the United States, the 

same shall be and remain subject to the jurisdiction, disposal, and control of 

the United States. 

§ 3, 34 Stat. at 270. Congress also prohibited the new state from allowing the liquor trade 

for 21 years within the Indian Territory, the bordering Osage Reservation, and “any other 

part of said State which existed as Indian reservations” as of 1906. § 3, 34 Stat. at 269. 

Oklahoma was awarded five seats in the House of Representatives. § 6, 34 Stat. at 

271-72. Congress instructed that the third district must “comprise all the territory now 

constituting the Cherokee, Creek, and Seminole nations, and the Indian reservations lying 

northeast of the Cherokee Nation, within said State.” Id.
- 90 - 

 The United States granted Oklahoma certain townships for the State’s school 

system but withheld “any lands embraced in Indian, military, or other reservations of any 

character” and specified that “land owned by Indian tribes or individual members of any 

tribe” were excluded “until the reservation shall have been extinguished and such lands 

be restored to and become a part of the public domain.” § 7, 34 Stat. at 272. 

 Upon Oklahoma’s admission as a State, the territorial laws in force within the 

Territory of Oklahoma would take effect statewide, and all applicable federal laws would 

take effect as they applied elsewhere in the country. § 21, 34 Stat. at 277-78. 

 The Oklahoma Enabling Act, as this court has already said, does not “contain 

express termination language.” Osage Nation, 597 F.3d at 1124. 

* * * * 

 The foregoing statutes show the Creek Nation accepted an allotment scheme that 

retained “surplus” lands for tribal citizens, and Congress established the State of 

Oklahoma. We now consider further whether, as the State insists, these laws also 

disestablished the Creek Reservation. 

ii. Analysis 

None of these statutes disestablished the Creek Reservation. The State’s case for 

termination of the Creek Reservation thus falters at “the first and most important step.” 

Parker, 136 S. Ct. at 1080. The State argues the cumulative effect of the eight laws 

demonstrate that Congress disestablished the Creek Reservation. For three reasons, we 

disagree. First, the statutes lack any of the textual “hallmarks” demonstrating 

congressional intent to disestablish, and no other language shows Congress altered the 
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Creek Reservation’s boundaries. See id. at 1079. Second, specific statutory language—

“[t]he most probative evidence of congressional intent,” Solem, 465 U.S. at 470—shows 

Congress continued to recognize the Reservation’s borders. Third, the State’s reliance on 

the statutes’ reforms of title and governance arrangements within the Reservation is 

unavailing because these changes did not disestablish the Reservation. 

1) No hallmarks of disestablishment or diminishment 

 Congress never expressly terminated the Creek Reservation in any of the statutes, 

nor did it use the kind of language recognized by the Supreme Court as evidencing 

disestablishment. It has long been clear “the Congresses that passed the surplus land 

acts” were hostile to the reservation system; indeed they “anticipated [its] imminent 

demise” and “passed the acts partially to facilitate the process,” but Solem prevents courts 

from “extrapolat[ing]” this general congressional expectation into “a specific 

congressional purpose” with respect to a given reservation. 465 U.S. at 468-69; see also 

Shawnee Tribe, 423 F.3d at 1220 & n.18 (explaining that, notwithstanding the 

“Congressional desire to end the reservation system,” the question of “[w]hether a 

particular treaty or Congressional act was intended to extinguish some or all of an 

existing reservation requires a case-by-case analysis”). “The effect of any given surplus 

land act depends on the language of the act and the circumstances underlying its 

passage.” Solem, 465 U.S. at 469 (emphasis added). Here at step one, we consider the 

language and find no congressional purpose to disestablish the Creek Reservation’s 

borders. 
- 92 - 

 We have not identified termination language in any of the statutes the State cites. 

Indeed, the State concedes that not one of the eight statutes contains particular language 

that disestablished the Creek Reservation. 

 The absence of such language is notable because Congress is fully capable of 

stating its intention to disestablish or diminish a reservation, as the following examples 

illustrate: 

 “[T]he Smith River reservation is hereby discontinued.” Act of July 27, 

1868, ch. 248, 15 Stat. 198, 221; see Mattz, 412 U.S. at 504 n.22 (citing 

statute as an example of “clear language of express termination”). 

 “That subject to . . . allotment . . . a [legislatively defined] portion of the 

Colville Indian Reservation . . . is hereby, vacated and restored to the public 

domain . . . .” Act of July 1, 1892, ch. 140, § 1, 27 Stat. 62, 62-63; see 

Mattz, 412 U.S. at 504 n.22 (citing as example of “clear language of 

express termination”); Seymour, 368 U.S. at 354 (discussing as example of 

diminishment language). 

 “Subject to the allotment of land . . . and for the considerations hereinafter 

mentioned . . . [the] Comanche, Kiowa, and Apache Indians hereby cede, 

convey, transfer, relinquish, and surrender, forever and absolutely, without 

any reservation whatever, express or implied, all their claim, title, and 

interest, of every kind and character, in and to the lands embraced in the 

following-described tract of country in the Indian Territory . . . .” Act of 

June 6, 1900, ch. 813, art. 1, 31 Stat. 672, 676-77; see Tooisgah v. United 

States, 186 F.2d 93, 97 (10th Cir. 1950) (discussing statute as example of 

language “disestablish[ing] the organized reservation”). 

 “[A]ll the unallotted lands within said reservation shall be restored to the 

public domain.” Act of May 27, 1902, ch. 888, 32 Stat. 245, 263; see 

Hagen, 510 U.S. at 412 (discussing statute and explaining that “Congress 

considered Indian reservations as separate from the public domain”). 

 “[T]he reservation lines of the said Ponca and Otoe and Missouria Indian 

reservations be, and the same are hereby, abolished.” Act of April 21, 

1904, ch. 1409, 33 Stat. 189, 218; see Mattz, 412 U.S. at 504 n.22 (citing as 

example of “clear language of express termination”). 
- 93 - 

 “The said Indians belonging on the Shoshone or Wind River Reservation, 

Wyoming, for the consideration hereinafter named, do hereby cede, grant, 

and relinquish to the United States, all right, title, and interest which they 

may have to all the lands embraced within the said reservation, except the 

lands within and bounded by the following lines . . . .” Act of March 3, 

1905, ch. 1452, art. 1, 33 Stat. 1016, 1016; see Wyoming, 849 F.3d at 870 

(calling this language “precisely suited to diminishment” (quotations 

omitted)).60

 Indeed, Congress has had no difficulty addressing the boundaries of the Creek 

Reservation, and, as the following treaties show, Congress used clear language on these 

occasions: 

 “The Creek Nation of Indians cede to the United States all the land 

belonging to the said Nation in the State of Georgia, and lying on the east 

side of the middle of the Chatahoochie river. And, also, another tract of 

land lying within the said State, and bounded as follows . . . .” 1826 

Treaty, art. 2, 7 Stat. at 286-87. 

 “The Creek tribe of Indians cede to the United States all their land, East of 

the Mississippi river.” 1832 Treaty, art. 1, 7 Stat. at 366. 

 “The United States hereby agree . . . that the Muskogee or Creek country 

west of the Mississippi, shall be embraced within the following 

boundaries . . . .” 1833 Treaty, art. 2, 7 Stat. at 418. 

 60 Additional examples can even be found within the statutes the State cites, but 

not with respect to the Creek Nation. In the 1893 appropriations law—the State’s first 

statute—Congress provided money to satisfy sum-certain purchases of Indian lands under 

agreements previously negotiated with two Tribes. First, Congress approved $30,600 “to 

pay the Tonkawa tribe of Indians in the Territory of Oklahoma for all their right, title, 

claim, and interest of every kind and character in and to four townships of land . . . 

conveyed and relinquished to the United States.” § 11, 27 Stat. at 643-44. Second, 

Congress appropriated $80,000 “to pay the Pawnee tribe of Indians in Oklahoma, 

formerly a part of the Indian Territory, for all their right, title, claim, and interest of every 

kind and character in and to all that tract of country between the Cimarron and Arkansas 

rivers embraced within the limits of seventeen specified Townships of land, ceded, 

conveyed, and relinquished to the United States.” § 12, 27 Stat. at 644. Further, 

Congress declared these newly acquired lands to be “part of the public domain.” § 13, 27 

Stat. at 644. 
- 94 - 

 “The Creek Nation doth hereby grant, cede, and convey to the Seminole 

Indians, the tract of country included within the following 

boundaries . . . .” 1856 Treaty, art. 1, 11 Stat. at 699; see also id. at art. 2, 

11 Stat. at 700 (“The following shall constitute and remain the boundaries 

of the Creek country . . . .”); id. at arts. 5-6, 11 Stat. at 700-02 (providing 

for release of Creek claims to specified lands in consideration of $1 million 

paid by United States). 

 “[T]he Creeks hereby cede and convey to the United States . . . the west 

half of their entire domain, to be divided by a line running north and south; 

the eastern half of said Creek lands, being retained by them, shall, except 

as herein otherwise stipulated, be forever set apart as a home for said 

Creek Nation; and in consideration of said cession of the west half of their 

lands . . . the United States agree to pay the sum of . . . nine hundred and 

seventy-five thousand one hundred and sixty-eight dollars . . . .” 1866 

Treaty, art. 3, 14 Stat. at 786; see also id. at art. 9, 14 Stat. at 788 

(providing for the construction of buildings “in the reduced Creek 

reservation”). 

 The Supreme Court has said that when earlier treaties contained unequivocal 

language of disestablishment or diminishment and a later enactment “speaks in much 

different terms,” “[t]he change in language . . . undermines [the] claim that Congress 

intended to do the same with the reservation’s boundaries in [the later statute] as it did in 

[the earlier treaties].” Parker, 136 S. Ct. at 1080; see also Mattz, 412 U.S. at 504 

(“Congress was fully aware of the means by which termination could be effected. But 

clear termination language was not employed in the [relevant statute]. This being so, we 

are not inclined to infer an intent to terminate the reservation.”); Seymour, 368 U.S. at 

355 (comparing earlier statute “expressly vacating the South Half of the reservation and 

restoring that land to the public domain” with later statute and finding that later statute 

“repeatedly refer[red] to the Colville Reservation in a manner that makes it clear that the 

intention of Congress was that the reservation should continue to exist as such”). 
- 95 - 

 Although the State contends the cumulative force of the eight statutes 

disestablished the Creek Reservation, Congress again discussed Creek boundaries in 

direct terms immediately following passage of the State’s final statute. The Oklahoma 

Enabling Act was passed on June 16, 1906. 34 Stat. at 267. Days later, on June 21, 

Congress recommitted to the boundary separating “the Creek Nation” and “the Territory 

of Oklahoma.” Act of June 21, 1906, ch. 3504, 34 Stat. 325, 364. The line, surveyed in 

1871 and reestablished by the U.S. Geological Survey in 1895 and 1896, was “declared 

to be the west boundary line of the Creek Nation.” Id. In the same statute, Congress 

established a new recording district in the Indian Territory and did so by reference to “the 

north line of the Creek Nation.” 34 Stat. at 343. These references to the lines and 

boundaries of the Creek Nation undercut the State’s contention that its eight statutes 

cumulatively disestablished the Creek Reservation. 

 As we recently said in Wyoming, “[t]here are no magic words of cession required 

to find diminishment. Rather, the statutory language, whatever it may be, must ‘establish 

an express congressional purpose to diminish.’” 849 F.3d at 869-70 (quoting Hagan, 510 

U.S. at 411). There are no traditional textual signs of disestablishment in any of the 

statutes, and our review uncovers no other language to overcome the presumption that the 

Creek Reservation continues to exist. See Solem, 465 U.S. at 481. In fact, the Original 

Agreement recognized the Reservation’s boundaries. 

2) Signs Congress continued to recognize the Reservation 

 The eight statutes not only lack textual evidence that Congress disestablished the 

Creek Reservation, the Original Agreement contains language recognizing the existence 
- 96 - 

of the Creek Nation’s borders. See, e.g., ¶ 10, 31 Stat. at 864 (discussing towns “in the 

Creek Nation”); ¶ 25, 31 Stat. at 869 (municipal corporations “in the Creek Nation”); 

¶ 37, 31 Stat. at 871 (introduction of cattle “into the Creek Nation”); ¶ 41, 31 Stat. at 872 

(application of other laws and treaties “in the Creek Nation”); ¶ 42, 31 Stat. at 872 (notice 

through publication in newspapers “having a bona fide circulation in the Creek Nation”); 

¶ 43, 31 Stat. at 872 (maintenance of liquor laws “in said nation”). And so did other 

statutes. See, e.g., Supplemental Agreement, ¶¶ 11, 13, 17-18, 32 Stat. at 502-04; Five 

Tribes Act, §§ 12, 14, 16, 24, 27, 34 Stat. at 141-43, 146, 148; Oklahoma Enabling Act, 

§ 6, 34 Stat. at 272. 

 The Original Agreement also reserved lands for tribal purposes. See ¶ 24, 31 Stat. 

at 868. Solem explained that retention of lands for tribal purposes “strongly suggests” 

continued reservation status. See 465 U.S. at 474 (explaining “[i]t is difficult to imagine 

why Congress would have reserved lands for such purposes” if the land was no longer a 

reservation). “Surplus” Creek lands were not made a part of the public domain or even 

opened to unrestricted non-Indian settlement. Congress and the Tribe instead agreed 

lands not initially claimed as allotments would be used for the Tribe’s benefit by 

equalizing the allotments of Creek citizens. See ¶¶ 3, 9, 31 Stat. at 862, 864; see also § 7, 

34 Stat. at 272. 

 And instead of making a sum-certain payment to the Creek Nation for all—or 

even a portion of—its land, the Agreement provided the Tribe would receive an uncertain 

amount of revenue based on future sales to non-Indian settlers of surveyed town lots. See 

¶¶ 11-15, 31 Stat. at 866; see also Parker, 136 S. Ct. at 1079 (finding no intent to 
- 97 - 

diminish where Tribe did not “receiv[e] a fixed sum for all of the disputed lands” because 

“the Tribe’s profits were entirely dependent upon how many nonmembers purchased the 

appraised tracts of land”); id. at 1080 (“Such schemes allow non-Indian settlers to own 

land on the reservation. But in doing so, they do not diminish the reservation’s 

boundaries.” (citation and quotations omitted)). 

 Thus, not only do the State’s statutes lack any language showing disestablishment, 

they show Congress’s continued recognition of the Reservation’s boundaries. 

3) The State’s title and governance arguments 

 The State’s arguments for disestablishment based on Congress’s general goals of 

extinguishing tribal title and establishing a new state government fail. Relying on its first 

statute—the 1893 appropriations law in which Congress announced the commencement 

of negotiations—the State argues Congress intended to disestablish the Creek 

Reservation because Congress aimed for (1) the “extinguishment” of tribal title and (2) 

the “ultimate creation” of one or more state governments in the Indian Territory. Aplee. 

Br. at 58 (quoting § 16, 27 Stat. at 645). Congress largely achieved both goals,61 but the 

State’s arguments fail because they confuse questions of title and governance with the 

issue before us—the Reservation’s boundaries. 

 61 Tribal title was never fully extinguished because, as we explained in Indian 

Country, U.S.A., the Creek Nation has retained title to some lands within the 

Reservation. 829 F.2d at 976. 
- 98 - 

a) Title 

Whether a reservation has been disestablished or diminished depends on whether 

its boundaries were erased or constricted, not on who owns title to land inside the lines. 

“This distinction between a property’s title and a reservation’s territory is important.” 

Shawnee Tribe, 423 F.3d at 1220 n.17. Congress has defined “Indian country” to include 

“all land within the limits of any Indian reservation.” 18 U.S.C. § 1151(a). Based on this 

definition, the Supreme Court has accepted the “inescapable” conclusion that allotment 

alone does not terminate a reservation. Mattz, 412 U.S. at 504. “[A]djudicating 

reservation boundaries is conceptually quite distinct from adjudicating title to the same 

lands. One inquiry does not necessarily have anything in common with the other, as title 

and reservation status are not congruent concepts in Indian law.” Navajo Tribe, 809 F.2d 

at 1475 (footnote and quotations omitted). In other words, who has title is not the same 

question as whether Congress has erased or altered a reservation’s boundaries. See 

Yazzie, 909 F.2d at 1394 (observing “the distinction between title and boundary [is] an 

important one”); see also Solem, 465 U.S. at 470 (“[N]o matter what happens to the title 

of individual plots within the area, the entire block retains its reservation status until 

Congress explicitly indicates otherwise.”). 

The allotment of Creek lands—the transfer of title from the Tribe to its 

members—does not mean Congress disestablished the Creek Reservation. Allotment can 

be “completely consistent with continued reservation status.” Mattz, 412 U.S. at 497; see 

Navajo Tribe, 809 F.2d at 1475 (“[A]llotment in severalty to individual Indians and 

subsequent entry by non-Indians is entirely consistent with continued reservation status.” 
- 99 - 

(quotations omitted)); see also Solem, 465 U.S. at 469 (“[I]t is settled law that some 

surplus land acts diminished reservations, and other surplus land acts did not.” (citations 

omitted)). Solem provides the framework for the required case-by-case evaluation, and 

here the State presents no language showing Congress altered the Creek Reservation’s 

boundaries. Its focus on the extinguishment of tribal title and the shift to individual 

ownership misses the mark because “the Supreme Court has required that specific 

congressional intent to diminish boundaries and not just Indian land titles be clearly 

established.” Yazzie, 909 F.2d at 1394-95. As the Creek Nation explains, the allotment 

of Creek lands “effectuate[d] an uncompensated change from communal title to title in 

severalty,” but this “transfer of title sa[id] nothing about reservation boundaries.” Creek 

Nation Br. at 15. 

b) Governance 

Neither do changes in governance over the Creek Reservation show that Congress 

disestablished the Reservation. The State argues the erosion of Creek governmental 

authority and the creation of Oklahoma demonstrate Congress disestablished the Creek 

Reservation. For three reasons, we disagree. 

First, a tribal government’s powers and its reservation’s boundaries are not the 

same thing. At times, the State’s brief recognizes this point. See Aplee. Br. at 89 

(arguing Mr. Murphy has “confuse[d] the question of whether the Nation was dissolved 

as a political entity with the issue in this case, i.e., whether the reservation was 

disestablished”); see also id. at 84 n.33 (noting “the Creek Nation continued to exist as a 

political entity”). But the State’s attempt to tie Congress’s regulation of the Creek 
- 100 - 

government’s authority to what Congress must have intended regarding the Reservation’s 

borders fails to satisfy Solem’s step one. See 465 U.S. at 470 (explaining Congress must 

“clearly evince an intent to change boundaries” (quotations omitted)).62

Second, even if the State could show that dissolution of a tribal government is 

relevant to disestablishing a reservation, that would not mean the Creek Reservation has 

been disestablished. This is so because Congress never dissolved the Creek government. 

Even when Congress contemplated the future dissolution of the Creek government, it 

continued to recognize the Tribe’s governmental authority within the Reservation’s 

boundaries. See, e.g., Original Agreement, ¶ 42, 31 Stat. at 872. Thirty years ago, this 

court explained: 

Although Congress at one time may have envisioned the termination of the 

Creek Nation and complete divestiture of its territorial sovereignty, the 

legislation enacted in 1906 reveals that Congress decided not to implement 

that goal, and instead explicitly perpetuated the Creek Nation and 

recognized its continuing legislative authority. Congress subsequently 

repudiated its earlier policies of termination and enacted legislation 

designed to restore governmental powers to the Oklahoma tribes. 

Indian Country, U.S.A., 829 F.2d at 981 (citation omitted). And, as all parties agree, the 

Creek government continues to exist today. 

 Third, Oklahoma’s admission into the Union is compatible with the Creek 

Reservation’s continuation. States and reservations co-exist throughout the country. See, 

 62 The State’s contention that regulation of the tribal government indirectly 

reveals what Congress thought about the Reservation’s borders may more 

appropriately be a step-two argument about the contemporary understanding of the 

Acts, rather than a step-one textual argument. Either way, it fails to show Congress 

disestablished the Creek Reservation’s boundaries. 
- 101 - 

e.g., Parker, 136 S. Ct. at 1076 (Omaha Indian Reservation within Nebraska); Solem, 465 

U.S. at 465-66 (Cheyenne River Sioux Reservation within South Dakota); Indian 

Country, U.S.A., 829 F.2d at 976 (Creek Reservation within Oklahoma); see also 

Donnelly v. United States, 228 U.S. 243, 270-72 (1913) (holding California’s admission 

did not affect federal jurisdiction over murder on Indian reservation). 

 In sum, the eight statutes do not, individually or collectively, show that Congress 

disestablished the Creek Reservation. They lack any of the “hallmarks of diminishment,” 

Parker, 136 S. Ct. at 1079, and what they do say supports the view of Mr. Murphy and 

the Creek Nation that the 1866 Reservation borders continue to exist. The State’s 

arguments about tribal title and governance miss the mark. Its case for disestablishment 

has “fail[ed] at the first and most important step.” Id. at 1080. 

b. Step Two: Contemporary Historical Evidence 

 When the statutory text at step one does not reveal that Congress has 

disestablished or diminished a reservation, such a finding requires “unambiguous 

evidence” that “unequivocally reveals” congressional intent. Parker, 136 S. Ct. at 1080-

81 (alterations and quotations omitted); see also Solem, 465 U.S. at 478 (“[I]n the 

absence of some clear statement of congressional intent to alter reservation boundaries, it 

is impossible to infer from a few isolated and ambiguous phrases a congressional purpose 

to diminish [a reservation].”). 

 At step two of the Solem analysis, courts consider how pertinent legislation was 

understood to affect the reservation when it was enacted. Evidence of this contemporary 

understanding may include the negotiations between the tribe and the federal 
- 102 - 

government, congressional floor debates, and committee reports about the relevant 

statues. See Solem, 465 U.S. at 476-78; see also Wyoming, 849 F.3d at 874-75 

(considering earlier, failed legislation as indicative of intent). 

 We have relied on step-two evidence to find disestablishment. In Osage Nation, 

we concluded Congress had disestablished the Osage Reservation, despite an absence of 

clear textual evidence, because we found “the legislative history and the negotiation 

process [made] clear that all the parties at the table understood that the Osage reservation 

would be disestablished by the Osage Allotment Act.” 597 F.3d at 1125.63

The State argues the contemporary historical evidence shows Congress intended to 

disestablish the Creek Reservation. Mr. Murphy and the Creek Nation contend there is 

no unequivocal historical evidence of disestablishment. Instead, they argue the evidence 

supports continued recognition of the Creek Nation’s borders during the relevant period. 

The mixed evidence we discuss below falls short of “unequivocally reveal[ing]” that 

Congress disestablished the Creek Reservation. Parker, 136 S. Ct. at 1080 (quotations 

omitted).64

 63 In Osage Nation, we referred in passing to the Creek Reservation as 

disestablished, see 597 F.3d at 1124, but the disestablishment or diminishment of the 

Creek Reservation was not before us in that case; the Creek Nation was not a party 

and therefore was not heard; and the court performed no Solem analysis regarding the 

Creek Reservation. The State acknowledges Osage Nation does not bind us here. 

See Aplee. Br. at 93 (“[T]his Court’s statement that the Creek reservation was 

disestablished was dicta . . . .”). 

64 Had the State chosen to present its eight-statute, cumulative-effect argument 

as step-two contextual evidence—as opposed to step-one textual evidence—we 

would still conclude Congress did not disestablish the Creek Reservation. The eight 

Continued . . . 
- 103 - 

i. The State’s evidence 

The State’s step-two evidence comes from the years preceding the 1901 Original 

Allotment Agreement. On their own, pre-1901 understandings do little to advance the 

analysis because the State “does not dispute that the reservation was intact in 1900.” 

Aplee. Br. at 75 n.25. But we understand the State to argue that Congress had a pre-1900 

intention to disestablish the Creek Reservation and that this intention carried through later 

legislation. See Wyoming, 849 F.3d at 878-79 (finding a “continuity of purpose” and 

stating “Congress’s consistent attempts . . . to purchase the disputed land compel the 

conclusion that this intent continued through the passage of the 1905 Act”). 

The State largely relies on court decisions discussing Creek history as opposed to 

primary sources from the relevant time period. See Aplee. Br. at 69-70 (citing 

Woodward, 238 U.S. at 293; Sizemore v. Brady, 235 U.S. 441, 447 (1914); Stephens v. 

Cherokee Nation, 174 U.S. 445, 483 (1899); United States v. Hayes, 20 F.2d 873, 888 

(8th Cir. 1927); Harjo, 420 F. Supp. at 1110). Many of these cases were decided years 

after the allotment of Creek lands and after Oklahoma became a state, thus providing 

second-hand evidence of any contemporaneous historical understanding. To the extent 

the State’s cases discuss legislative documents from the era, we look to the documents 

themselves. 

 

statutes reveal a congressional hostility to Creek independence consistent with the 

assimilationist impulse of the era. See Solem, 465 U.S. at 466-69. But they do not 

show, and certainly not unequivocally, “a specific congressional purpose” to 

disestablish the Reservation’s borders. Id. at 469. As our step-two discussion 

demonstrates, the contemporary historical evidence that the Reservation was 

disestablished is mixed. 
- 104 - 

1) 1892 Senate debate 

The State cites Hayes for its earliest historical evidence of Congress’s intent to 

disestablish the Creek Reservation. Hayes, a 1927 decision by the Eighth Circuit,

discussed an 1892 Senate floor debate in which Senators Jones and Platt opposed a joint 

resolution proposing to create a commission to negotiate with the Five Civilized Tribes to 

induce them to allot their lands. See 20 F.2d at 879-82 (summarizing debate). Senator 

Jones argued the government’s goal should be to induce the Indians “to abandon their 

tribal organizations and their tribal governments and to become citizens of the United 

States.” 24 Cong. Rec. 98 (Dec. 13, 1892). Allotment should be offered, he said, in 

exchange for the dissolution of tribal governments. Id. He argued the joint resolution 

would “give away the single advantage we have.” Id. 

Senator Platt thought the “real question” was whether the country could “endure 

five separate, independent, sovereign, and almost wholly foreign governments within the 

boundaries of the United States.” Id. at 100. Although acknowledging “[t]he United 

States conveyed to each of the five civilized tribes their lands in fee simple, and agreed 

that they should never be included in any Territorial or State government, so long as the 

tribes continued to exist and occupy the lands,” he contended things had changed. 

Id. The “original idea” had been “that white people were not to dwell in that country,” 

but he thought the influx of white settlers into the Indian Territory showed the Tribes no 

longer wished to remain isolated. Id. The changing demographic situation required new 

governing structures. Id. at 101-02. Elimination of the tribal governments, he argued, 

would eventually have to happen with or without the Tribes’ consent. Id. at 102. Senator 
- 105 - 

Platt also pointed out the Committee on Indian Affairs was drafting a bill to create a 

commission “much wider in scope than is contained in the joint resolution.” Id. 

The joint resolution “died upon the table without reference to committee,” Hayes, 

20 F.2d at 880 (quotations omitted), but, as discussed above, Congress created the Dawes 

Commission the next year though the 1893 Act, which instructed the Commission to 

pursue the purchase or allotment of tribal lands and to secure conditions “suitable to 

enable the ultimate creation of a State or States of the Union which shall embrace the 

lands within said India[n] Territory,” § 16, 27 Stat. at 645. 

This legislative history of a failed resolution falls far short of what would permit 

us to find disestablishment. “[I]solated statements” from a few legislators do not show 

that Congress disestablished a reservation, Parker, 136 S. Ct. at 1080, especially when, as 

here, the discussion concerns tribal title and governance rather than a reservation’s 

boundaries. 

2) 1894 Senate committee report 

Next, the State looks to an 1894 report from a Senate select committee on the Five 

Civilized Tribes discussed in Stephens, an 1899 Supreme Court decision involving the 

constitutionality of laws regulating the Indian Territory. See 174 U.S. at 483. The report 

noted 1890 census figures showing the white population in the Indian Territory greatly 

outnumbering the Indian population. S. Rep. No. 53-377, at 6 (1894). Within the Indian 

Territory there were “[f]lourishing towns . . . composed wholly of white people.” Id. To 

the committee, this state of affairs undercut the isolationist notion undergirding earlier 

treaties: 
- 106 - 

It must be assumed . . . that the Indians themselves have determined to 

abandon the policy of exclusiveness, and to freely admit white people 

within the Indian Territory, for it cannot be possible that they can intend to 

demand the removal of the white people either by the Government of the 

United States or their own. They must have realized that when their policy 

of maintaining an Indian community isolated from the whites was 

abandoned for a time it was abandoned forever. 

Id. at 7. 

 The committee report also commented on the state of land ownership and 

governance within the Indian Territory. Although the Tribes held title for the benefit of 

all their citizens, the report found that some tribal citizens, “frequently not Indians by 

blood but by intermarriage,” had managed to take effective control over large swaths of 

the best agricultural land and earn private income by renting out sections of the land. Id.

at 11-12. The report observed that this development disadvantaged many tribal citizens 

and the United States might have to intervene to ensure that tribal holdings were 

administered for the benefit of all a Tribe’s members. Id. The report viewed the Tribes 

in the Indian Territory as incapable of reforming the situation, labelling “their system of 

government” as “not only non-American” but “radically wrong.” Id. at 12. “There can 

be no modification of the system. It can not be reformed. It must be abandoned and a 

better one substituted.” Id. Convinced change was needed, but “not car[ing] to . . . 

suggest what . . . will be the proper step for Congress to take,” the committee simply 

noted that the Dawes Commission was hard at work, and said it would “wait and see.” 

Id. at 12-13. 

 This report describing 1890s conditions does not address whether Congress 

understood its later reforms would disestablish the Creek Reservation. And again, the 
- 107 - 

State’s contextual evidence concerns title and governance and does not speak to the 

reservation question. 

3) Other sources 

The State references an 1895 report from the Dawes Commission to Congress, 

which stated that the “so-called governments” in the Indian Territory were “wholly 

corrupt, irresponsible, and unworthy to be longer trusted” with the lives and property of 

Indian citizens. Dep’t of the Interior, H.R. Doc. No. 54-5, at XCV (1st Sess. 1895). The 

Commission predicted the situation would not “remain peaceabl[e]” if the white 

population were excluded from the governance arrangement and stressed the United 

States was “bound by constitutional obligations to see to it that government everywhere 

within its jurisdiction rests on the consent of the governed.” Id. at XC. 

The State argues an 1897 report by the Secretary of the Interior similarly found 

that a uniform system of government would have to be provided for the Indian Territory. 

The State also observes that the Creek Nation and the Dawes Commission negotiated 

agreements that were rejected by either the Tribe or Congress before both sides agreed to 

the Original Allotment Agreement, but the State does not cite any particular provisions in 

these earlier, proposed deals to argue they reveal a contemporary understanding that 

Congress intended to disestablish or diminish the Creek Reservation. 

These materials fail to show that Congress intended to disestablish the Creek 

Reservation by enacting any of the eight statutes. 
- 108 - 

ii. Mr. Murphy’s and the Creek Nation’s evidence 

 Mr. Murphy contends there is no unequivocal historical evidence supporting 

disestablishment. To the contrary, he and the Tribe cite sources from both before and 

after the 1901 Original Agreement to argue the Creek Nation’s borders remain intact. 

1) 1894 Dawes Commission records 

 The Creek Nation points to records from the Dawes Commission’s early years. Its 

1894 report to Congress discussed the Commission’s negotiations and explained the 

Tribes had refused to discuss changes “in respect either to their form of government or 

the holdings of their domains.” Dep’t of the Interior, H.R. Doc. No. 53-1, at LIX-LX (3d 

Sess. 1894). The Commission explained to Congress it had proposed allotment after 

“abandon[ing] all idea of purchasing” tribal lands because “the Indians would not, under 

any circumstances, agree to cede any portion of their lands to the Government.” Id. at 

LVX. The same report included a copy of the terms the Commission had submitted to 

the Creek Nation—the propositions “upon which [the Commission] proposed to 

negotiate.” Id. at LX-LXI. The eighth proposition stated that, if an agreement was 

reached, Congress would be allowed to form a territorial government “over the territory 

of the Creek Nation.” Id. 

2) 1895 Dawes letter 

Next, the Tribe points to an 1895 letter from Chairman Dawes to the Creek 

Nation’s principal chief explaining: 

[T]he Commission have not come here to interfere at all with the 

administration of public affairs in these nations, or to undertake to deprive 

any of your people of their just rights. On the other hand, it is their purpose 
- 109 - 

and desire, and the only authority they have, to confer with you upon lines 

that will result in promoting the highest good of your people and securing 

to each and all of them their just rights under the treaty obligations which 

exist between the United States and your nation. 

H.R. Doc. No. 54-5, at LXXXI. These treaty obligations, the Creek Nation argues, 

included the 1866 treaty’s recognition of the Tribe’s territorial integrity. 

3) 1900 Attorney General opinion 

 The Creek Nation also relies on a 1900 Attorney General opinion, which 

addressed the “conditions now existing in the Indian country occupied by the Five 

Civilized Tribes” to argue the 1898 Curtis Act did not affect the Reservation’s 

boundaries. 23 U.S. Op. Att’y Gen. 214, 215 (1900), available at 1900 WL 1001. 

Responding to an inquiry from the Secretary of the Interior about the presence of nonIndians in the Indian Territory, the Attorney General explained that the Tribes, even after 

passage of the Curtis Act, still had the power to exclude intruders and to set the terms 

upon which non-members could enter the Tribes’ lands. See id. at 215-18. The opinion 

said the Tribes could regulate activity within their borders because, although outsiders 

could purchase town lots, “the legal right to purchase land within an Indian nation gives 

to the purchaser no right of exemption from the laws of such nation.” Id. at 217. Tribal 

laws “requiring a permit to reside or carry on business in the Indian country” were still in 

effect. Id. Non-members grazing cattle or otherwise occupying Indian lands were 

“simply intruders” who “should be removed, unless they obtain such permit and pay the 

required tax, or permit, or license fee.” Id. at 219. The Attorney General concluded the 

Secretary of the Interior had 
- 110 - 

the authority and duty . . . to remove all persons of the classes forbidden by 

treaty or law, who are there without Indian permit or license; to close all 

business which requires a permit or license and is being carried on there 

without one; and to remo[v]e all cattle being pastured on the public land 

without Indian permit or license, where such license or permit is required; 

and this is not intended as an enumeration or summary of all the powers or 

duties of your Department in this direction. 

Id. at 220; see also Maxey v. Wright, 54 S.W. 807, 809-10, 812 (Indian Terr.) (upholding 

Creek occupancy tax imposed on non-member lawyers practicing law within the Creek 

Nation), aff’d, 105 F. 1003 (8th Cir. 1900). 

4) Post-allotment evidence 

 Mr. Murphy and the Tribe argue contemporary historical evidence shows an 

understanding that the Creek Nation’s borders continued after allotment. In its report to 

Congress in 1900, the Dawes Commission reflected on what its negotiations had—and 

had not—achieved: 

Had it been possible to secure from the Five Tribes a cession to the United 

States of the entire territory at a given price, the tribes to receive its 

equivalent in value, preferably a stipulated amount of the land thus ceded, 

equalizing values with cash, the duties of the commission would have been 

immeasurably simplified, and the Government would have been saved 

incalculable expense. . . . When an understanding is had, however, of the 

great difficulties which have been experienced in inducing the tribes to 

accept allotment . . . it will be seen how impossible it would have been to 

have adopted a more radical scheme of tribal extinguishment, no matter 

how simple its evolutions. 

Dep’t of the Interior, H.R. Doc. No. 56-5, at 9 (2d Sess. 1900). 

 Mr. Murphy points out that, in the years immediately following passage of the 

allotment agreements, the regional federal circuit court with jurisdiction over the Indian 

Territory continued to recognize the Creek Nation’s borders. In Buster, federal agents 
- 111 - 

enforced the Creek Nation’s licensing fee on trade “within its borders” by closing the 

businesses of non-Indians who had refused to pay. 135 F. at 949-50. The non-Indian 

business owners sought to enjoin federal enforcement of the tax and argued the Creek 

Nation’s power had been withdrawn by the Original and Supplemental Allotment 

Agreements, which authorized the presence of individuals in lawful possession of town 

lots. Id. at 950. The Eighth Circuit held that, although allotment had altered title 

arrangements, the Creek Nation’s power to govern the area was “not conditioned or 

limited by the title to the land.” Id. at 951. “Neither the United States, nor a state, nor 

any other sovereignty loses the power to govern the people within its borders . . . by the 

ownership [or] occupancy of the land within its territorial jurisdiction by citizens or 

foreigners.” Id. at 952. The Creek Nation retained “its power to fix the terms upon 

which noncitizens may conduct business within its borders.” Id. (emphasis added). The 

Eight Circuit said in summation: 

The ultimate conclusion of the whole matter is that purchasers of lots in 

town sites in towns or cities within the original limits of the Creek Nation, 

who are in lawful possession of their lots, are still subject to the laws of that 

nation prescribing permit taxes for the exercise by noncitizens of the 

privilege of conducting business in those towns, and that the Secretary of 

the Interior and his subordinates may lawfully enforce those laws by 

closing the business of those who violate them, and thereby preventing the 

continuance of that violation. 

Id. at 958.65

 65 The Supreme Court has questioned Buster’s approach to Indian taxing 

authority, but we consider the case only as a contemporary source revealing an 

understanding that Congress had not disestablished the Creek Reservation. 

Continued . . . 
- 112 - 

iii. Analysis 

 The State’s evidence at step two largely speaks to changes (or anticipated changes) 

in title and governance. It does not show that Congress understood it was disestablishing 

the Creek Reservation. Although Mr. Murphy and the Creek Nation present counter 

evidence showing a continuing understanding that the Creek Reservation’s borders 

remained intact, we need not settle which side has the stronger argument about the 

contemporary historical evidence. Under Solem, our inquiry is simpler. Because no clear 

textual evidence shows Congress disestablished the Creek Reservation at step one, it is 

enough for us to say at step two that the “historical evidence in no way ‘unequivocally

reveal[s] a widely held, contemporaneous understanding that the affected reservation 

would shrink as a result of the proposed legislation.’” Parker, 136 S. Ct. at 1080 

(alteration and emphasis in original) (quoting Solem, 465 U.S. at 471). 

 None of the step-two evidence, whether viewed in isolation or in concert, shows 

unmistakable congressional intent to disestablish the Creek Reservation. The State’s 

historical evidence supports the notion that Congress intended to institute a new 

government in the Indian Territory and to shift Indian land ownership from communal 

 

In Atkinson Trading Co., the Supreme Court invalidated a hotel occupancy tax 

challenged by a non-Indian who owned a hotel within the borders of the Navajo 

Reservation. 532 U.S. at 647-48, 659. In doing so, the Court made clear that it has 

never endorsed Buster’s broad statement “that an Indian tribe’s ‘jurisdiction to 

govern the inhabitants of a country is not conditioned or limited by the title to the 

land which they occupy in it.’” Id. at 653 n.4 (quoting 135 F. at 951). For our 

purposes, the correctness of Buster’s pronouncements on Indian taxing authority is 

irrelevant. Mr. Murphy and the Creek Nation rely on Buster simply as contemporary 

historical evidence. 
- 113 - 

holdings to individual allotments. But this does not show, unequivocally or otherwise, 

that Congress had erased or even reduced the Creek Reservation’s boundaries. Even if 

the State’s evidence offers some suggestion of a contemporary understanding that the 

Creek Reservation was disestablished, Mr. Murphy and the Creek Nation have 

marshalled evidence showing an understanding that the Reservation’s borders continued. 

The step-two evidence is at most debatable, and we need not parse it further because 

ambiguous evidence cannot overcome the missing statutory text at step one. See Hagen, 

510 U.S. at 411 (“Throughout the inquiry, we resolve any ambiguities in favor of the 

Indians . . . .”). 

After the first two steps, the statutory-text analysis fails to show that Congress 

disestablished or diminished the Creek Reservation, and there is no unequivocal evidence 

of a contemporaneous understanding that the legislation terminated or redrew the Creek 

Nation’s borders at step two. We turn to step three. 

c. Step Three: Later History 

We consider at step three “federal and local authorities’ approaches to the lands in 

question and . . . the area’s subsequent demographic history.” Shawnee Tribe, 423 F.3d 

at 1222; see Solem, 465 U.S. at 471; see also Parker, 136 S. Ct. at 1081 (considering 

tribal presence in contested territory). “Congress’s own treatment of the affected areas,” 

especially in the years immediately following passage of legislation that opens a 

reservation to non-Indian settlement, “has some evidentiary value, as does the manner in 

which the Bureau of Indian Affairs and local judicial authorities” treated the disputed 

area. Solem, 465 U.S. at 471. Step three also concerns “who actually moved onto 
- 114 - 

opened reservation lands,” id., but later demographic facts are “the least compelling” 

evidence for disestablishment or diminishment because “[e]very surplus land Act 

necessarily resulted in a surge of non-Indian settlement and degraded the ‘Indian 

character’ of the reservation.” Yankton Sioux Tribe, 522 U.S. at 356. 

Solem provides that, as compared to steps one and two, step-three evidence is 

considered “[t]o a lesser extent.” 465 U.S. at 471. In its most recent decision applying 

Solem, the Supreme Court observed that although it has “suggest[ed]” step-three evidence 

“might reinforce” a conclusion based on statutory text, it “has never relied solely on this 

third consideration to find diminishment.” Parker, 136 S. Ct. at 1081 (alterations and 

quotations omitted); see also Wyoming, 849 F.3d at 879 (“[S]ubsequent events cannot 

undermine substantial and compelling evidence from an Act and events surrounding its 

passage.” (quotations omitted)). 

We proceed to discuss (i) the treatment of the area and (ii) its demographic 

history. The conflicting step-three evidence discussed below does not allow us to say 

that Congress disestablished the Creek Reservation. 

i. Treatment of the area 

1) Congress 

 Both sides cite evidence to show what later Congresses understood about the 

Creek Reservation’s existence. We start with the earliest examples. 

 The Creek Nation cites the following statutes in arguing Congress continued to 

recognize the Reservation’s boundaries following passage of the allotment agreements: 

Act of April 21, 1904, ch. 1402, 33 Stat. 189, 204 (granting Secretary of the Interior 
- 115 - 

authority to sell “the residue of lands in the Creek Nation”), repealed by Act of March 3, 

1905, ch. 1479, 33 Stat. 1048, 1072 (revoking Secretary’s authority); Act of March 3, 

1909, ch. 263, 35 Stat. 781, 805 (providing for “equalization of allotments in the Creek 

Nation”); and Act of May 25, 1918, ch. 86, 40 Stat. 561, 581 (appropriating money for 

“the common schools in the Cherokee, Creek, Choctaw, Chickasaw, and Seminole 

Nations”). We find these laws carry some weight because, within step three, Solem

emphasizes the years “immediately following” passage of the relevant laws. See 465 

U.S. at 471; see also Hagen, 510 U.S. at 420 (repeating the Court’s “longstanding 

observation that the views of a subsequent Congress form a hazardous basis for inferring 

the intent of an earlier one” (brackets and quotations omitted)). 

 The Creek Nation cites other statutes showing that reservations continued to exist 

in Oklahoma, though they do not speak directly to the Creek Reservation. See Act of 

May 29, 1924, ch. 210, 43 Stat. 244, 244 (regulating oil and gas leases on “unallotted 

land on Indian reservations other than lands of the Five Civilized Tribes and the Osage 

Reservation”); Act of June 26, 1936, ch. 831, 49 Stat. 1967, 1967 (authorizing Secretary 

of the Interior to acquire land and water rights “within or without existing Indian 

reservations” in Oklahoma). 

 The State points to more recent statutes in which Congress defined “reservation” 

to include, among other things, “former Indian reservations in Oklahoma.” Aplee. Br. at 
- 116 - 

85.66 These laws also include existing reservations within their definitions, however, and 

none of them reference the Creek Reservation as being disestablished in particular. 

Congress’s choice to include former reservation lands in Oklahoma within various 

regulatory programs does not show that Congress has disestablished the Creek 

Reservation. 

The State also cites two congressional committee reports. First, a 1935 report by a 

Senate committee said that in Oklahoma, as the result of allotment, “Indian reservations 

as such have ceased to exist.” S. Rep. No. 74-1232, at 6 (1935). But as the Creek Nation 

argues, the legislation associated with the report, the Oklahoma Indian Welfare Act, 

referenced “existing Indian reservations.” See § 1, 49 Stat. at 1967. Second, the State 

argues “[a] survey in 1952 referred to the lands of the Five Civilized Tribes as areas, 

rather than reservations.” Aplee. Br. at 85 (citing H.R. Rep. No. 82-2503, at 745, 753, 

777, 793, 952 (1952)). Mr. Murphy and the Creek Nation do not address this report, but 

the State does not explain why “areas” and “reservations” cannot refer to the same land. 

Altogether, these conflicting signals from later Congresses do not overcome the 

lack of evidence at steps one and two. Given “the textual and contemporaneous 

evidence” in this case, “confusion in the subsequent legislative record does nothing to 

alter our conclusion” that the Creek Reservation’s borders still exist. Hagen, 510 U.S. at 

 66 The State cites the following examples: 12 U.S.C § 4702(11); 16 U.S.C. 

§ 1722(6)(C); 25 U.S.C. §§ 1452(d), 2020(d)(1)-(2), 3103(12), 3202(9); 29 U.S.C. 

§ 741(c); 33 U.S.C. § 1377(c); 42 U.S.C. §§ 2992c(2), 5318(n)(2). Within 29 U.S.C. 

§ 741, “reservation” is actually defined in subsection (d), and within 42 U.S.C. 

§ 2992c, “Indian reservation” is defined in subsection (3). 
- 117 - 

420; see also id. (“The subsequent history is less illuminating than the contemporaneous 

evidence.”). 

2) Executive 

 The parties’ evidence from the executive branch also is mixed. The Creek Nation 

contends that the Bureau of Indian Affairs continued to regard the Reservation as intact in 

the early years of the twentieth century. The BIA’s annual reports following Creek 

allotment and Oklahoma statehood consistently included the Creek Nation in tables 

summarizing reservation statistics. See Creek Nation Br., App’x B. Similarly, the 

Department continued to include the Creek Nation on its “Maps Showing Indian 

Reservations within the Limits of the United States.” See id. App’x C (maps from 1900-

14). 

 But the State argues a later BIA regulation concerning land acquisition policies 

shows that the BIA concluded the Creek Reservation was disestablished because the 

regulation defined “Indian reservation” to mean: 

that area of land over which the tribe is recognized by the United States as 

having governmental jurisdiction, except that, in the State of Oklahoma or 

where there has been a final judicial determination that a reservation has 

been disestablished or diminished, Indian reservation means that area of 

land constituting the former reservation of the tribe as defined by the 

Secretary. 

25 C.F.R. § 151.2(f) (2016).67 Even if this evidence supports the State, it merely creates 

a conflict with the other BIA evidence. 

 67 The regulation dates to 1980. See Land Acquisitions, 45 Fed. Reg. 62034, 

62036 (Sept. 18, 1980) (announcing regulation’s finalization). 
- 118 - 

 The Supreme Court has said that government officials’ later treatment of the 

disputed area “has ‘limited interpretive value.’” Parker, 136 S. Ct. at 1082 (quoting 

Yankton Sioux Tribe, 522 U.S. at 355); see also Solem, 465 U.S. at 469 (“The first and 

governing principle is that only Congress can divest a reservation of its land and diminish 

its boundaries.” (emphasis added)). And, more generally, the “subsequent treatment of 

the disputed land cannot overcome the statutory text” when the relevant laws are “devoid 

of any language” indicating Congress intended to disestablish a reservation. Parker, 136 

S. Ct. at 1082. 

3) Federal courts 

Both sides point to passing references in federal court decisions across the decades 

that reveal conflicting understandings of the Creek Reservation’s status. 

The State invokes a handful of twentieth-century cases “indicat[ing], in dicta, a 

widely held belief that the reservation was disestablished.” Aplee. Br. at 78-79 (citing 

McClanahan v. State Tax Comm’n of Ariz., 411 U.S. 164, 171 (1973); Okla. Tax 

Comm’n v. United States, 319 U.S. 598, 602-03, 608 (1943); Grayson v. Harris, 267 U.S. 

352, 353 (1925); Woodward, 238 U.S. at 285; McDougal v. McKay, 237 U.S. 372, 383 

(1915); Washington v. Miller, 235 U.S. 422, 423 (1914); Harjo, 420 F. Supp. at 1143). 

But the State’s characterization of these cases is overstated. McClanahan, for instance, 

does not discuss the Creek Nation at all. And in Woodward, the Supreme Court 

described the case as involving a 160-acre tract “formerly part of the domain of the Creek 

Nation,” but, in the next sentence, the opinion explained “[t]he tract was allotted to 

Agnes Hawes, a Creek freedwoman.” 235 U.S. at 285. The Court’s description of the 
- 119 - 

land is consistent with the transfer of title from the Creek Nation, which formerly owned 

it, to Ms. Hawes. As previously explained, a change in title from tribal to individual 

ownership does not disestablish a reservation. Other cases the State cites suffer the same 

flawed understanding that allotment had terminated the reservation. See Grayson, 267 

U.S. at 353, 357 (describing allotted lands “lying within the former Creek Nation”); 

Washington, 235 U.S. at 423 (referring to “lands within what until recently was the Creek 

Nation in the Indian Territory”). To the extent the State’s cases reflect a later 

understanding that the Creek Reservation had been disestablished, these references, as the 

State acknowledges, are dicta. 

The Creek Nation argues that “[f]ederal courts in the decades after allotment 

sometimes subscribed to [the] erroneous assumption” that the Creek Reservation had 

been disestablished based on a mistaken belief that the tribal government had been 

dissolved. Creek Nation Br. at 32. For example, in Turner v. United States, the Court of 

Claims remarked—incorrectly—that the “Creek Nation of Indians kept up their tribal 

organization . . . until the year 1906, at which date the tribal government was terminated 

by the general provisions of [the Original Allotment Agreement].” 51 Ct. Cl. 125, 127 

(1916), aff’d, 248 U.S. 354 (1919). But, as discussed above, Congress extended the tribal 

government beyond 1906 and has never dissolved it. See § 28, 34 Stat. at 148. The 

Supreme Court affirmed the Court of Claims’ decision and repeated its mistake that “[o]n 

March 4, 1906, the tribal organization was dissolved pursuant to” the Original 

Agreement. Turner, 248 U.S. at 356. But, as the Court later recognized, the Creek 
- 120 - 

Nation “still exists” and has “resume[d] some of its former powers.” Seber, 318 U.S. at 

718 & n.23. 

As we have explained, the question of tribal governmental powers is distinct from 

reservation boundaries, but the Creek Nation persuasively argues these clear errors are an 

“indication of just how shaky such judicial assumptions were” in the decades after 

allotment. Creek Nation Br. at 32-33. 

Scattered dicta in later court decisions do not justify a conclusion that Congress 

disestablished the Creek Reservation. We have undertaken the three-part Solem analysis 

because no Supreme Court or Tenth Circuit case has addressed the question. See Indian 

Country, U.S.A., 829 F.2d at 975 (reserving issue of “whether the exterior boundaries of 

the 1866 Creek Nation have been disestablished”). 

4) Oklahoma 

 The Creek Nation acknowledges the State “asserts considerable governmental 

authority over the Creek reservation.” Creek Nation Br. at 37. Oklahoma’s general 

exercise of authority over the former Indian Territory has included criminal prosecutions 

of Indians, but we agree with Mr. Murphy and the Creek Nation that the exercise of State 

authority has not disestablished the Creek Reservation. 

 In Ex parte Nowabbi, Oklahoma convicted a member of the Choctaw Tribe in 

state court of murdering another tribal member on the victim’s allotment. 61 P.2d 1139, 

1141-42 (Okla. Crim. App. 1936), overruled by Klindt, 782 P.2d 401. The defendant 

argued the federal district court had exclusive jurisdiction. Id. at 1143. The OCCA 
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concluded state jurisdiction was proper and said Congress had failed to reserve federal 

jurisdiction for crimes committed within the former Indian Territory. Id. at 1154, 1156.68 

 Since then, however, the state courts have changed course. In 1989, the OCCA 

concluded Nowabbi had erred in holding Oklahoma had jurisdiction to prosecute an 

Indian defendant for a murder committed on an Indian allotment. See Klindt, 782 P.2d at 

404 (“There is ample evidence to indicate that the Nowabbi Court misinterpreted the 

statutes and cases upon which it based its opinion. . . . Nowabbi is hereby overruled.”); 

see also Cravatt, 825 P.2d at 280 (vacating Indian defendant’s state-court conviction for 

murder committed on allotment). These cases addressed allotments, not the reservation 

question. Still, they show that Oklahoma has shifted away from its earlier position that 

there is no Indian country in the former Indian Territory. 

 The State has not provided us with other examples of Oklahoma prosecuting 

Indians for murders committed within the Creek Reservation,69 but such cases would be 

 68 The Oklahoma Attorney General similarly concluded in 1979 that Oklahoma 

has jurisdiction over the former Indian Territory: “Due to the dissolution of the 

Indian tribes of former ‘Indian Territory’ as governments of limited sovereignty, there 

is no ‘Indian country’ in said former ‘Indian Territory’ over which tribal and thus 

federal jurisdiction exists.” 11 Okla. Op. Att’y. Gen. 345 (1979), available at 1979 

WL 37653, at *8-9. 

69 In the 1990s, we rejected an attempt by the federal government to allow 

Oklahoma to prosecute a Creek citizen for the murder of another Creek citizen. Sands, 

968 F.2d at 1061. We did not address the reservation issue, however, because we 

determined the crime occurred on an allotment—and thus in Indian country under 18 

U.S.C. § 1151(c). Id. at 1062. After prosecuting the defendant in federal court, the 

federal government “urge[d] us to adopt its frequently raised, but never accepted, 

argument that the State of Oklahoma retained jurisdiction over criminal offenses in 

Continued . . . 
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of little value because the Supreme Court has explained that even when a state’s exercise 

of jurisdiction goes unquestioned, lands retain their Indian country status until Congress 

decides otherwise. In United States v. John, 437 U.S. 634 (1978), the Supreme Court 

rejected an argument by the State of Mississippi that the federal government’s failure to 

assert its jurisdiction had made the State’s exercise of jurisdiction proper: 

[The State argues] that since 1830 the Choctaws residing in Mississippi 

have become fully assimilated into the political and social life of the State, 

and that the Federal Government long ago abandoned its supervisory 

authority over these Indians. Because of this abandonment, and the long 

lapse in the federal recognition of a tribal organization in Mississippi, the 

power given Congress “to regulate Commerce . . . with the Indian Tribes,” 

Const. Art. I, § 8, cl. 3, cannot provide a basis for federal jurisdiction. To 

recognize the Choctaws in Mississippi as Indians over whom special 

federal power may be exercised would be anomalous and arbitrary. 

We assume for purposes of argument, as does the United States, that there 

have been times when Mississippi’s jurisdiction over the Choctaws and 

their lands went unchallenged. But . . . we do not agree that Congress and 

the Executive Branch have less power to deal with the affairs of the 

Mississippi Choctaws than with the affairs of other Indian groups. Neither 

the fact that the Choctaws in Mississippi are merely a remnant of a larger 

group of Indians, long ago removed from Mississippi, nor the fact that 

federal supervision over them has not been continuous, destroys the federal 

power to deal with them. 

Id. at 652-53 (brackets and footnote omitted); see also Indian Country, U.S.A., 829 F.2d 

at 974 (“[T]he past failure to challenge Oklahoma’s jurisdiction over Creek Nation lands, 

or to treat them as reservation lands, does not divest the federal government of its 

exclusive authority over relations with the Creek Nation or negate Congress’ intent to 

protect Creek tribal lands and Creek governance with respect to those lands.”). 

 

Indian country.” Id. at 1061. We rejected the argument and affirmed the defendant’s 

federal conviction. Id. at 1061-63, 1067. 
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 Oklahoma’s exercise of jurisdiction within the Creek Reservation is not a proper 

basis for us to conclude that Congress disestablished the Reservation. 

5) Creek Nation 

 The Creek Nation has maintained a significant and continuous presence within the 

Reservation. The tribal government, which was never extinguished, saw many of its 

powers restored when Congress passed OIWA in 1936. See Indian Country, U.S.A., 829 

F.2d at 981. Later, “[i]n 1979, the Creeks reorganized their tribal government . . . and 

adopted a new Creek Constitution, which was approved by the United States Department 

of the Interior.” Id. at 970. Today, the tribal government maintains a capital complex in 

Okmulgee and provides extensive services within the Creek Nation’s borders. See Creek 

Nation Br., App’x D (maps reflecting Tribe’s capital complex and locations of 

community centers, medical centers, and emergency response teams throughout the 

Reservation). The Creek Nation further contends it applies its traffic laws throughout the 

territory and supports traditional churches and ceremonial grounds on the Reservation. 

Id. at 37.70 Mr. Murphy also observes the Creek Nation has entered into deputation 

agreements for law enforcement services “within the exterior boundaries of the 

Muscogee (Creek) Nation.” Aplt. Br., Attach. F. The Creek Nation’s continued presence 

and activity provides a much stronger case for reservation continuation than in Parker, 

 70 See also The Muscogee (Creek) Nation, http://www.mcn-nsn.gov/services/# 

(providing overview of tribal services including, among others, language programs, 

environmental services, family violence prevention programs, historical and cultural 

preservation programs, senior services, and education and transportation programs) 

[https://perma.cc/Q82C-ZVZY]. 
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where the Supreme Court held a reservation was intact notwithstanding the fact that “the 

Tribe was almost entirely absent from the disputed territory for more than 120 years.” 

136 S. Ct. at 1081. The value of this evidence may be slight, but it weighs in favor of 

Mr. Murphy and the Creek Nation.71 

ii. Demographics 

 There is a large, non-Indian population within the Creek Reservation. The State 

argues that, even “[b]y 1906, four-fifths of the persons living in Indian Territory were 

non-Indian.” Aplee. Br. at 86 (citing H.R. Rep. No. 59-496, at 10 (1906)). In 2000, the 

year Mr. Murphy was convicted in McIntosh County,72 the census determined that—of a 

total county population of 19,456—14,123 people were white (73%) compared to 3,152 

people who identified as American Indian or Alaska Native (16%).73 And within the 

Reservation but beyond McIntosh County lies the city of Tulsa with a population, the 

State maintains, that is only 5.3% Indian. Id. at 86 (citing 2015 census figures). 

 71 Mr. Murphy has submitted other step-three materials in the form of reports 

and legislative history criticizing the Oklahoma probate courts for their handling of 

Indian estates in the years after allotment. See Aplt. Br., Attach. E. Similarly, he 

cites a lengthy 1928 report commissioned by the Department of the Interior, see id. at 

42 n.19 (citing Institute for Government Research, “The Problem of Indian 

Administration” (1928)), on which the State also draws. We have considered these 

materials, but they do not affect our conclusion. 

72 The 1866 boundaries of the Creek Reservation, however, cover more than 

McIntosh County. 

73 See United States Census Bureau, “American FactFinder,” Profile of 

General Demographic Characteristics: 2000 [https://perma.cc/LH7M-32WX]. 
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 Mr. Murphy argues this demographic evidence is unhelpful because “[t]he 

increase of non-Indian intruders into Indian Territory was occurring before the allotment 

acts and Enabling Act were passed,” and even before allotment and Oklahoma statehood, 

“the [Creek] Nation’s citizens were the minority within their own territory.” Aplt. Br. at 

65-66. Although many non-Indians have come to live in the area, the Tribe points out 

that approximately half of its members continue to live within the 1866 borders of the 

Reservation. 

 The demographic evidence does not overcome the absence of statutory text 

disestablishing the Creek Reservation. See Parker, 136 S. Ct. at 1082 (explaining it is 

not the “role” of courts to “rewrite” earlier statutes “in light of . . . subsequent 

demographic history” (quotations omitted)). Solem acknowledged that “[r]esort to 

subsequent demographic history is . . . an unorthodox and potentially unreliable method 

of statutory interpretation.” 465 U.S. at 472 n.13; see also Wyoming, 849 F.3d at 887 n.6 

(Lucero, J., dissenting) (applying step three but observing “[t]he demographic makeup of 

an area decades or more following passage of a statute cannot possibly tell us anything 

about the thinking of a prior Congress”). We take account of it as part of our step-three 

analysis but do not rest our decision upon it. 

iii. Step-three concluding comment 

When steps one and two “fail to provide substantial and compelling evidence of a 

congressional intention to diminish Indian lands,” courts must accord “traditional 

solicitude” to Indian tribes and conclude “the old reservation boundaries” remain intact. 
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Solem, 465 U.S. at 472. Such is the case here. None of the step-three evidence allows us 

to conclude that Congress disestablished the Creek Reservation. 

IV. CONCLUSION 

 Applying Solem, we conclude Congress has not disestablished the Creek 

Reservation. Consequently, the crime in this case occurred in Indian country as defined 

in 18 U.S.C. § 1151(a). Because Mr. Murphy is an Indian and because the crime 

occurred in Indian country, the federal court has exclusive jurisdiction. Oklahoma lacked 

jurisdiction. See 18 U.S.C. § 1153(a). 

 Mr. Murphy’s state conviction and death sentence are thus invalid. The OCCA 

erred by concluding the state courts had jurisdiction, and the district court erred by 

concluding the OCCA’s decision was not contrary to clearly established federal law. We 

therefore reverse the district court’s judgment and remand with instructions to grant Mr. 

Murphy’s application for a writ of habeas corpus under 28 U.S.C. § 2254. The decision 

whether to prosecute Mr. Murphy in federal court rests with the United States. Decisions 

about the borders of the Creek Reservation remain with Congress.