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 DIST RICT OF OKLAHOMA (D.C. Nos. 6:03-CV-00443-RAW-K EW and 6:12-CV-00191-RAW-KEW)

________________ _________________ Patti Palmer Ghezzi, Assistant Federal Public Defender (Randy A. Bauman and Michael W. Lieberman, Assistant Federal Public Defe nders, with her on the briefs), Office of the Federal Public Defender, Oklahoma City , Oklahoma, appearing for Appellant. Jennifer L. Crabb, Assistant Attorney Genera l (E. Scott Pruitt, Attorney General, and Jared Haines, Assistant Attorney General, w ith her on the brief), O ffice of the Attorney General for the State of Oklahoma, Oklahoma City, Oklahoma, appearing for Appellee. David A. Giampetroni, Kanji & Katzen, PL LC, Ann Arbor, Michig an (Kevin Dellinger, Attorney General, and Lindsay Dowell, Assi stant Attorney Genera l, 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 Mc Bride III, Attorney Gene ral, and Christine Vaughn, Assistant Attorney General, Semi nole 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), appearin g for amici Muscogee (Creek) Nation and Seminole Nation of Oklahoma. Klint A. Cowan, Fellers, Snider, Blankenshi p, Bailey & Tippens, P.C., Oklahoma City, Oklahoma, appearing for amicus United Keetoowah Band of Ch erokee 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 th e OCCA ............................................................................... 11

c. Atkins trial and appeal ............................................................................. 14 6. Federal District Court Proceedings on Fi rst Federal Habeas Application .......... 14 7. First Appeal to the Tenth Circuit (No. 07-7068) ................................................ 16 8. Second Application for Fede ral 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 disestabli shment 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 Establishe d Law in 2005 .......................................................... 38 2. The State’s Arguments ........................................................................................ 40 B. The OCCA Decision—Contrary to Clea rly 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 ar guments ............................................................................. 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 a llotment ............................................................................. 62 f. Allotment and aftermath .......................................................................... 64 g. Creation of Oklahoma ............................................................................. 65 h. Away from allo tment ............................................................................... 66 i. Public Law 280 ........................................................................................ 67 j. A new Creek C onstitution ....................................................................... 68 k. Our decision in Indian Country, U.S.A. ................................................... 69 3. Applying Solem ................................................................................................... 70

a. Step One: Stat utory Te xt ......................................................................... 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 pur poses .............................................. 81 d) Future gove rnance ....................................................................... 81 6) “Supplemental Allotment Agreemen t,” 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 disestablis hment or diminishment ......................... 91 2) Signs Congress continued to r ecognize the Re servation .................. 95 3) The State’s title and go vernance arguments .................................... 97 a) Title ............................................................................................ 98 b) Governance ................................................................................. 99 b. Step Two: Contemporary Hi storical Evidence ....................................... 101 i. The State’s ev idence ........................................................................... 103 1) 1892 Senate de bate ........................................................................ 104 2) 1894 Senate commi ttee report ....................................................... 105 3) Other sources ................................................................................ 107 ii. Mr. Murphy’s and the Creek Nation’s evidence ................................. 108 1) 1894 Dawes Commissi on records .................................................. 108 2) 1895 Dawes letter .......................................................................... 108- vi - 3) 1900 Attorney Gene ral opinion ..................................................... 109 4) Post-allotment evidence ................................................................ 110 iii. Analysis ............................................................................................. 112

c. Step Three: La ter Histor y ..................................................................... 113 i. Treatment of th e 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 concludi ng 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 deat h. He contends he should have been tried in federal court because he is an Indian and the offe nse occurred in Indian country. We agree and remand to the district court to i ssue 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 ju risdiction 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 c ourt must give deference to a state court’s determination that it had jurisdiction. None theless, in this case, the Oklahoma court applied a rule that was contrary to clearl y 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 char ged 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) depe ndent Indian communities, and (c) Indian allotments. See 18 U.S.C. § 1151. The re servation clause concer ns us here. All land- 2 - within the borders of an Indi an reservation—regardless of wh ether the tribe, individual Indians, or non-Indians hold title to a give n tract of land—is I ndian country unless Congress has disestablished the rese rvation or diminished its borders. Fourth, only Congress may disestablish or diminish an Indian reservation. Applying the Supreme Court’s test to determ ine 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 disest ablished it. We conclude the Reservation remains intact and therefore the crime was co mmitted in Indian coun try. Mr. Murphy, a Creek citizen, should ha ve 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 pro cedural 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 fe deral habeas court must presume state court’s factual dete rminations are correct); see also Al-Yousif v. Trani , 779 F.3d 1173, 1181 (10th Cir. 2015) (“The presumption of correct ness also applies to factual findings made by a state court of review based on the trial record.” (quotations omitted)).- 3 - Factual History A. In August 1999, Mr. Murphy lived with Patsy Jacobs. Murphy v. State , 47 P.3d 876, 879 (Okla. Crim. A pp. 2002). Ms. Jacobs was p reviously in a relationship with the victim in th is 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 dr iving to a bar in Henryetta, Oklahoma, with Mr. Jacobs pass ed out in the back seat. Id. Mr. Murphy was driving on the same road in the opposite direc tion 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. Sumk a to turn off the car, but Mr. Sumka drove off. Id. Mr. Murphy and his passengers pur sued and forced Mr. Sumka off Vernon Road, which runs through an area that is “ remarkably rural [and] heavily treed . . . without any sort of improvement . . . exce pt 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 confront ed 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 ca me 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. Su mka and his family if he said anything, and Mr. King struck Mr. Sumka in the jaw. Id. Following Mr. Murphy’s inst ructions, Mr. Sumka left the scene with the other

men. Id. During the car ride away , they told Mr. Sumka th ey 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 ditc h with his face bloodied and slashes across his chest and stomach. Id. His genitals had been cu t off and his throat slit. Id. According to a state crim inalist, Mr. Jacobs had been dragged off the road after his genitals were severed. Id. His neck and chest had b een cut on the side of the road, where he bled to death over the cour se of four to twelve minutes, though it may have taken longer. Id. After Mr. Murphy return ed home and confessed to Ms. Jacobs, he was arrested. Id. The State of Oklahoma charged hi m with Mr. Jacobs’s murder and sought the death penalty.- 5 - Procedural History B. A jury convicted Mr. Murp hy of murder in Oklahoma state court and imposed the death penalty. His appeal and post-convicti on proceedings have si nce 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 summa rized. 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 ev identiary hearing. Following the hearing, the state district court concluded Oklahoma’s ju risdiction was proper because the crime did not occur in Indian country. The OCCA affi rmed 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 fas hion, we provide a complete procedural history below.
1. Trial In 2000, a jury in McIn tosh 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 cour t imposed a death sentence. Id.- 6 - 2. Direct appeal Mr. Murphy raised a variety of trial issu es 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 ev idence, including Mr. Mu rphy’s “mild mental retardation,” and concluded his death sent ence 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 applicati on 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 addre ssed whether the Eighth Amendment prohibits the execution of “m entally retarded persons,” id. at 306. On June 20, 2002, about a month after th e OCCA affirmed on direct appeal, the Supreme Court held in Atkins that the Eighth Amendm ent “places a substantive restriction on the State’s power to take the life of a mentally re tarded offender.” Id. at 321 (quotations omitted). Atkins “[left] to the States the ta sk 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 fo r 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 re tarded” persons from execution. See id. at 567-69. These procedures, the OCCA explained, woul d 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 hear ing on the sole issue of [Mr. Murphy’s] claim of mental retardation in accordance with” the OCCA’s newly anno unced 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 e rroneous” 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 fe deral habeas applica tion 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 applic ation contained some claims that had not been exhausted in Oklahoma state court. The federal distri ct court directed Mr. Murphy to drop his unexhausted claims.- 8 - On September 10, 2004, M r. 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 St ate Post-Conviction Relief On March 29, 2004—shortly after he filed his original federal habeas application—Mr. Murphy returned to state court and file d a second application for postconviction relief to exhaust clai ms he had dropped from his fe deral habeas application. His second application for state pos t-conviction relief alleged:
1. Oklahoma lacked jurisdic tion because the Major Crimes Act gives the federal government exclusive jurisdic tion 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 injec tion 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 cour t’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 matte r 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 subjec t 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. Cr im. App. 2010) (considering ju risdictional claim that crime occurred on federal land raised in prisone r’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 explai ning subject matter jurisdiction may be challenged at any time).- 9 - See Murphy , 124 P.3d at 1200, 1208-09. The OCCA ordered an evid entiary hearing on the jurisdictional claim. Id. at 1199. 6 Evidentiary hearing a. The state district court held a one-day eviden tiary hearing. Id. at 1201. Mr. Murphy argued Oklahoma lack ed jurisdiction because the crime occurred in Indian country and 18 U.S.C. § 1153 provides for exclusive fed eral jurisdiction over murders committed by Indians in Indian country. 7 The parties agreed th at Mr. Murphy and Mr. Jacobs, both members of the Mu scogee (Creek) Nation, were I ndians, but they disputed whether the crime occurred in Indian country, a term defi ned in 18 U.S.C. § 1151:

6 The OCCA ordered that the hearing answer the following six questions: (1) Where exactly did th e crime occur? (2) Who “owns” title to the propert y upon which the crime occurred? (3) If some or all of the crime oc curred on an easement, how does that factor into th e ownership question? (4) How much of the crime occurred, if any, on an easement? (5) Did the crime occur in “Indian Coun ty,” as defined by 18 U.S.C. § 1151? (6) Is jurisdiction over the cr ime exclusively federal? 124 P.3d at 1201 n.3 (paragraph breaks added).

7 “Any Indian who commits against the pe rson 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 pena lties as all other persons committing any of the above offenses, within the exclusive jurisd iction of the United States.” 18 U.S.C. § 1153(a).- 10 - [T]he term “Indian co untry” . . . means (a) all land within the limits of any I ndian 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 with in or without the limits of a state, and (c) all Indian allotments, the Indi an titles to which have not been extinguished, including rights-o f-way running through the same. 18 U.S.C. § 1151 (paragraph brea ks added). An area qualifies as Indian country if it fits within any of these three categories. Mr. Murphy argued the crim e occurred in Indian country under all three categories. 8 In December 2004, the state district cour t 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 allo tment under § 1151(c), but it failed to address whether the location was (a) part of the Creek Reserva tion 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 h earing, it allowed Mr.

8 In this appeal, however, he argues th e location of the crime qualifies under the reservation clause of subsection (a) and the allotment clause of subsection (c). Because we agree with him th at the crime occurred on an Indian reservation, we do not reach his allotment argument.- 11 - Murphy to make an offer of pr oof on his other two theories. Id. 9 The court ultimately ruled the State’s exercise of criminal juri sdiction was proper an d denied relief. Id. at 1202. Appeal to the OCCA b. Mr. Murphy appealed to the OCCA. On December 7, 2005, the OCCA denied relief on his jurisdictional and Eighth Amendm ent claims but granted limited relief on the Atkins claim. See id. at 1209. On the jurisdictional issu e, the OCCA found the reco rd did not support some of the state district court’s determinations , but it affirmed the u ltimate determination that Oklahoma’s jurisdiction was proper. Id. at 1201-08. The OCCA accepted the state district court’s findings regarding whe re 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, Oklahom a’s “interest in the area in question is in the nature of an ease ment or right-of way.” Id. The Creek Nation had long owned

9 On the reservation question that c oncerns us here, Mr. Murphy argued: [T]he homicide occurred w ithin the boundaries of the Creek Nation, which qualifies as Indian county becau se of its status as a reservation under federal jurisdiction. Unlike some other tribes, the Creek treaty lands were not disestablis hed or diminished by the acts of allotment and other federal legislation adopted in th e early 20th century. As of 1999, the entirety of the historic Creek Nation lands thus remained Indian country, regardless of non-Indian own ership 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, Okla homa received the right to build a public highway. Id. at 1203. Tracing the hist ory of the specific tract where the crime occurred, the OCCA concl uded it had passed in the early twentieth century from the Creek Nation to Lizzie Sm ith, a member of the Creek Nation, and that all interest in the la nd—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 stat e district court for not addressing whether the crime was committed within th e Creek Reservation or within a dependent Indian community, but it concluded the error was harmless beca use Mr. Murphy had be en afforded a chance “to make an extended offer of proof.” Id. at 1207. The OCCA sa id that the evidence, had it been admitted, was “insu fficient” to show “that the tr act in question qualifies as a reservation or dependent Indian community.” Id. With respect to the reservation theory , the OCCA acknowledg ed our decision in Indian Country, U.S.A., Inc. v. Ok lahoma 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 rega rding Mr. Murphy’s allotment theory under § 1151(c) because it forms part of th e 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 rema in 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 OC CA 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 ch allenge to Oklahoma’s lethal injection protocol by failing to raise it earlier. Id. at 1209. In summary, the OCCA reje cted the jurisdictional ch allenge and the Eighth Amendment claim, but it remanded fo r a jury trial on Mr. Murphy’s Atkins claim. 12

11 The OCCA also rejected the depende nt 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) wh ether Oklahoma lacked jurisdiction because the crime occurred on a restri cted Indian allotment under § 1151(c) and (2) whether Oklahoma lacked jurisdiction be cause 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 determin ed 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 cer tiorari without comment. Murphy v. Oklahoma , 551 U.S. 1102 (2007).- 14 - Atkins trial and appeal c. Following a September 2009 trial in the st ate 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 la w and reset the case for a new trial. Id. 13 Before the re-trial, th e State moved to terminate fu rther proceedings. A state statute had supplanted the OCCA’s Atkins procedures and provi ded that no defendant who received an intelligence quotient (“I.Q.”) sco re 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 te st and 82 on another, the trial court granted the State’s motion and t erminated 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 cour t 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 pos t-conviction application. Id. at 1294.
6. Federal District Court Pr oceedings on First Fed eral Habeas Application On December 28, 2005 , after the OCCA rejected his jurisdictional and Eighth Amendment claims but befo re the conclusion of the Atkins proceedings, Mr. Murphy

13 The court declared a mistri al because neither side ha d been afforded its full complement of peremptory challenges—a structural erro r 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 ex hausted 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 ar gued the crime had occurred in Indian country under just two theori es: (1) the land was part of the Creek Reservation under § 1151(a) and (2) the land was an I ndian 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 th e OCCA’s decisions against Mr. Murphy on these theories were neither contrary to nor an unreasonable a pplication 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 re lief 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 M r. 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 Distri ct 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 di strict court’s denial of relief on his second § 2254 habeas applicati on. We consolidated that appeal (No. 15-7041) with his appeal from the denial of his first habeas ap plication (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 appli cation as second and successive and transferred it to this court. We conclude d that at least a portion of Mr. Murphy’s Atkins challenge could pro ceed and ordered a partial remand. In re Murphy , No. 12-7055, at 2 (10th Cir. Nov. 1, 2 012) (unpublished order).

16 The district court granted Mr. Murphy three COAs and we gr anted five more. The district court granted COAs for Mr. Murp hy’s arguments regarding: (1) ineffective assistance of counsel, (2) the “heinous, atroci ous, or cruel” aggravating circumstance, and (3) the trial court’s failure to define “life w ithout 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 Ok lahoma or the federal government had jurisdiction over the murder case—we granted the mo tion of the Muscogee (Creek) Nation and the Seminole Nation of Okla homa to file a joint amici brief. 17 We likewise permitted the United Keetoowah Band of Ch erokee Indians in Oklahoma to file an amicus brief. The Tribes also participated at oral argument.
II. LEGAL BACKGROUND We conclude the crime occurred on th e Creek Reservation and therefore the Oklahoma courts lacked jurisdiction. This section addresses the la w applicable to the jurisdictional issue. We begi n with (A) our standard of re view and then address (B) the substantive law of Indian country jurisdiction. Standard of Review A. The parties disagree over th e standard of review th at should apply to Mr. Murphy’s jurisdictiona l claim. The State contends AEDPA’s deferential standard should apply. Mr. Murphy disagrees and argues we sh ould 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 pr oceedings on his first federal habeas application, (4) Okla homa’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 be fore us in this appeal, but our resolution of the jurisdic tional claim obviates the need to address the other seven issues.

17 Because this case concern s the Creek Reservation, we refer to the Tribes’ joint brief with the shor thand “Creek Nation Br.”- 18 - prevails even under AEDPA review. Becaus e 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 defenda nt’s challenge to the state court’s subject matter jurisdiction. AEDPA deference, he ma intains, “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 implicat es tribal and federal sovereignty interests, he also contends that federal courts, uncon strained by AEDPA, must make the final determination over the jurisd ictional issue. And he argu es that applying AEDPA to jurisdictional claims would pose separation- of-powers and other constitutional problems. The State responds that nothing in AEDP A says subject matter jurisdiction claims should be reviewed de novo. It notes Mr. Murphy has faile d to cite a case in support of his view that AEDPA does not apply to juri sdictional questions. It argues Mr. Murphy has waived any argument against AEDPA’s app lication because he su pported the district court’s application of AEDPA below. Th e State also disputes his constitutional arguments. We need not decide whethe r 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 wh ether 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 AE DPA’s deferential standard, the OCCA had erred in concluding Oklahoma ha d jurisdiction over the case. Id. at 1160-61, 1164. 18 We held the crime occurred in Indi an country, making jurisdiction exclusively federal. We ordered Mr. Magnan released from state cu stody without resolv ing the “difficult question” of whether AEDPA constrains federal court review of a state court’s jurisdictional ruling regard ing Indian country. Id. at 1164, 1176-77. 19 As in Magnan , we can assume without deciding that AEDPA ap plies because Mr. Murphy is entitled to relief even under that formidab le standard of review.
2. The AEDPA Standard We first discuss AEDPA’s general framewo rk 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 ca se that Wyoming Supreme Court’s ruling on Indian reservation issue in favor of state ju risdiction should be affirmed regardless of whether de novo or AEDPA standard applied).

19 Mr. Magnan was later convicted in federa l 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 - Overview a. “AEDPA erects a formid able 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 prohi bits federal courts from granting habeas relief unless the stat e 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 base d on an unreasonable determination of the facts in light of the evid ence 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) pr ovides three ways to overcome AEDPA deference. Two appear in § 2254(d)(1), which provid es that a state prisoner can qualify for habeas relief by showing a state court decision was (1) “cont rary to” or (2) “involved an unreasonable application of” federal law that was clearly established by th e Supreme Court. 28 U.S.C. § 2254(d)(1); see Bell v. Cone , 535 U.S. 685, 694 (2002) (explaining the “contrary to” and “unreasona ble application” clauses each carry “i ndependent 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 (10t h Cir. 2014) (“[W]e review the district court’s legal analysis of the state court decision de no vo 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 es tablished federal law, and unreasonable determination of the facts—presen ts an independent inquiry.” Budder v. Addison , 851 F.3d 1047, 1051 (1 0th Cir. 2017). Mr. Murphy makes arguments based on al l 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. The “contrary to” clause b. When a state court adjudicates a pris oner’s federal claim on the merits, review under § 2254(d)(1)’s “contrary to” cl ause 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 cl early established is the threshold question under § 2254(d)(1).”). In discerni ng what law is “clearly estab lished,” we must look only to the decisions of the Supreme Court, see Parker v. Matthews , 567 U.S. 37, 48-49 (2012) (per curiam) (explaini ng circuit precedent “cannot form the basis for habeas relief under AEDPA”), and we must “measure state-cour t 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) (empha sis and quotations omitted). 21 Within this set of cases, “‘clearly established Fede ral law’ for purposes of § 2254(d)(1) includes only the holdings, as opp osed 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 estab lished 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 ‘cont rary’ is commonly understood to mean ‘diametrically different,’ ‘opposite in charac ter or nature,’ or ‘mutually opposed.’” Williams v. Taylor , 529 U.S. 362, 405 (2000) (controlling opin ion 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 deci sion will not be “contrary to” federal law, but the state court’s application of the correct ru le can still be evaluated under § 2254(d)(1)’s “unreasonable application” clause. Id. at 406. Third, if the state court rendered a de cision that was “contrary to” clearly established Supreme Court precedent by ap plying 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 adjudi cated the claim on the merits.” Cullen v. Pinholster , 563 U.S. 170, 18 1 (2011).- 23 - differently, “it is . . . a necess ary prerequisite to federal ha beas relief that a prisoner satisfy the AEDPA standard of review,” but habeas relief does not “au tomatically issue if a prisoner satisfies the AEDPA standard.” Horn v. Banks , 536 U.S. 266, 272 (2002). By showing the state court decision was “contr ary to” clearly established federal law, the prisoner surmounts AEDPA, and the federal hab eas 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” clau se, “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 es tablished federal standard and reviewing claim de novo). As previously mentioned, we choose to assume that AE DPA supplies our standard of review and now turn to th e substantive law governing Indian country jurisdiction. Indian Country Jurisdiction B. Understanding the Indian country jurisd iction issue in this case requires background knowledge about (1) reservati ons, (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 creati ng Indian reservations during the nineteenth century. See Felix S. Cohen’s Ha ndbook of Federal I ndian 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 trib al Indians, regardless of origin.” Id. at 190- 91. “[T]he term [‘Indian reservation’] ha s come to describe federally-protected Indian tribal lands, meaning those lands which Congress ha s 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, jurisdicti on 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 stat e jurisdiction.” (quotations omitted)); United States v. Sands , 968 F.2d 1058, 1062 (10t h Cir. 1992) (“The State of Oklahoma does not have jurisdiction over a criminal o ffense 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 Oklahom a does not have jurisdiction over crimes committed by or against an Indian in Indian Country.” (q uotations 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 pers on or property of another Indian or other person any of the following o ffenses, namely, murder . . . within the Indian country, shall be subject to the same law a nd penalties as all other persons committing any of the a bove offenses, with in the exclusive jurisdiction of the United States. 18 U.S.C. § 1153(a). If the Ma jor 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 purpos es 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 cen ters on whether the crime occurred in Indian country, in particular on the Creek Rese rvation. Before we discuss the meaning of Indian country, we provide the following hist ory 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 tr y an Indian for the murd er of another Indian committed in Indian country. Id. at 572. In response, Cong ress passed the Major Crimes Act in 1885. See Act of Mar. 3, 1885, ch. 34 1, § 9, 23 Stat. 362, 385; Keeble v. United

22 Whether the Major Crimes Act app lies does not depend on whether the victim is an Indian. See 18 U.S.C. § 1153(a) (reaching cr imes 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 crim es, namely, murder . . . within any Territory of the United States, and ei ther 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 ma nner, and subject to the same penalties as are all other persons committing an y of the above cr imes within the exclusive jurisdiction of the United States. § 9, 23 Stat. at 385. Thus, un like the current law, which app lies in “Indian country,” the original Act applied to crimes committed in federal territories and “within the boundaries of any State of the United States, a nd 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 nineteen th and early twentieth centuries, the Supreme Court explained that the Major Cr imes Act applied to crimes committed within the boundaries of Indian reserva tions 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 la nd inside the reservation’s boundaries: “[W]hen Congress has once established a re servation, all tract s included within it remain a part of the reservation until sepa rated therefrom by Congress.” 215 U.S. at- 27 - 285. This understa nding 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 in dividual 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 Cr imes Act and codifi ed 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); C ohen at 189-90 (discussing codification). Within the definition, Congress included the bounda ries-based concept of reservations that had developed in th e case law under the Major Crimes Act. 23 Under 18 U.S.C. § 1151, “Indi an country” means: (a) all land within the limits of any I ndian 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 with in or without the limits of a state, and (c) all Indian allotments, the Indi an titles to which have not been extinguished, including rights-o f-way running through the same.

23 Before the 1948 codification, Congre ss in 1932 had also provided that the Major Crimes Act would apply to enumerat ed crimes committed by Indians “on and within any Indian reservation under the ju risdiction of the United States Government, including rights of way running through the re servation.” Act of June 28, 1932, 47 Stat. 336, 337.- 28 - 18 U.S.C. § 1151 (paragraph breaks added). 24 If an area qualifie s under any of these definitions, it is Indian country. See Okla. Tax Comm’n v. Sac & Fox Nation , 508 U.S. 114, 123 (1993) (“Congr ess has defined Indian country broadly to include formal and informal rese rvations, dependent Indian communities, and Indian allotments, whether restricted or he ld in trust by the United States.”); see also Indian Country, U.S.A. , 829 F.2d at 973 (“A formal desi gnation of Indian lands as a ‘reservation’ is not required for them to have Indian country status.”). Id. At the same time Congre ss enacted this definition of Indian country, it also amended the Major Crimes Act so that it w ould apply in Indian country as defined in the statute. See 62 Stat. at 758. Thus, the Major Cr imes 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 provide d that “Indian country” includes “ all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance ofany 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 pr ovided in sections 1154 and 1156 of this title”). These exceptions are not relevant here.- 29 - The Supreme Court confir med this understanding in Seymour v. Superintendent of Wash ington State Penitentiary , 368 U.S. 351 (1962). In that case, an Indian sought federal habe as relief after being convict ed in Washington state court of burglary, one of the Major Crim es 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 Co ngress’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 prope rty plainly located within the limits of [the] reservation, the courts of Washington had no juri sdiction 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 Disestablish ment and Diminishment Only Congress can disestablish or diminish a reservation. 25 In Lone Wolf v. Hitchcock , 187 U.S. 553 (1903), the Supreme C ourt said Congress has the power to

25 The terms “disestablished” and “dim inished” “have at times been used interchangeably,” but “disestablishment ge nerally refers to the relatively rare elimination of a reservation while diminish ment 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 di sestablished the Creek Reservation.- 30 - unilaterally abrogate treaties made with Indian tribes. Id. at 566. “Congress possesses plenary power ov er Indian affairs, including th e 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 di minish reservations unilaterally”). Because “only Congress can al ter the terms of an Indian treaty by diminishing a reservation,” the Supreme Court has said th e “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 Congre ss’s power to disestablish and diminish Indian reservations, the Supreme Court also ha s developed a framework to determine whether Congress has exercise d its power with respect to a given reservation. We next discuss (a) the presumption agains t disestablishment and diminishment, (b) Congress’s pursuit of a polic y called allotment and its relationship to reservation borders, and (c) the Sup reme Court’s three-part Solem test for determining whether Congress has altered a re servation’s boundaries. Presumption against disestab lishment and diminishment a. Courts do not lightly infer th at Congress has exercised its power to disestablish or diminish a reservation. See DeCoteau v. Dist. Cty. C ourt for the Tenth Judicial
Dist. , 420 U.S. 425, 444 (1975) (“[ The Supreme] Court does not lightly conclude that- 31 - an Indian reservation has b een terminated.”). Indeed, the Supreme Court has said courts must approach these issues with a “presumption” that Congress did not intend to disestablish or dimi nish 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 dimini shing 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 Co ngress must “clearly evin ce an intent to change boundaries before diminishment will be found” (quotations omitted)); id. at 476 (discussing a statute’s lack of “explic it expression of congr essional intent to diminish” and finding re servation preserved); DeCoteau , 420 U.S. at 444 (“[The Supreme Court] requires that the congressi onal determination to terminate . . . be expressed on the face of the Act or be clear from the surroundi ng circumstances and legislative history.” (e llipsis in original) (quo tations omitted)).

26 The presumption against reservati on disestablishment and diminishment accords with the general principl e 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 - The policy of allotment b. The Supreme Court’s test, discussed be low, for determining whether Congress intended to disestablish or diminish a re servation developed aft er Congress pursued a policy known as allotment. Following decades of setti ng 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 in to individualized parcels for private ownership by tribal member s. Not incidentally, th e policy also “open[ed] up unallotted lands for non-Indian settlement,” al lowing these “surplus” lands to be sold to non-Indians. Id. at 467. Laws designed “t o force Indians onto individual allotments carved out of reserv ations and to open up una llotted lands for non-Indian settlement” are ofte n referred to as “sur plus land acts.” Id. Allotment on its own does not disestabli sh or diminish a reservation. See Mattz v. Arnett , 412 U.S. 481, 497 (197 3) (explaining allotment can be “completely consistent with continued res ervation status”). But Cong ress, in passing surplus land

27 Or, as the Supreme Court described th e policy at the time, “Of late years a new policy has found expression in the legi slation 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 di minished 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 tr ibes 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 deali ng 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 ne gotiation and legislative compromise.” Solem , 465 U.S. at 467. During the allotment era, Congress “an ticipated the imminent demise” of reservations. Id. at 468; see also id. (“[M]embers of Congre ss 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 Am erican society and th e reservation system would cease to exist.”); see also Yankton Sioux Tribe , 522 U.S. at 343 (explaining Congress “assumed that the reservati on system would fade over time”).

28 The policy of the General Allotment Ac t, 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 par ticular 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 pr ocess, we have never been willing to extrapolate from this expectation a specific congressional purpose of diminishing reservations with the pa ssage 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 (10t h 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”). Wh ether there was “a specific congressional purpose” to disestablish or diminish a particular reservation “depends on the language of the act and the circum stances underlying its passage.” Solem , 465 U.S. at 469. To distinguish cong ressional acts that changed a reservation’s borders from those “that simply offered non-Indians th e opportunity to purchase land within established reservation boundaries,” the Supreme Court has developed a three-part framework. Id. at 470. Solem factors c. In Solem v. Bartlett , a member of the Cheyenne River Sioux Tribe sought habeas relief after a state c ourt in South Dakota convicted him of attempted rape. Id. at 465; see also id. at 465 n.2 (expl aining offense fell within Major Crimes Act). The defendant argued the state court lacked juri sdiction because the cr ime occurred on the- 35 - reservation. Id. The Supreme Court developed and applied its three-part framework to assess whether the reserv ation had been diminished. See id. at 470-80. It concluded the reservation had not been diminished and gran ted 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 th e text of the st atute purportedly disestablishing or diminishing the reserva tion. Statutory language is “[t]he most probative evidence of congressional intent.” Id. at 470. “Explicit reference to cession or other language evidencing the pr esent and total surre nder of all tribal interests strongly suggests th at 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 di minish 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 “ev ents surrounding the passage” of the statute. 465 U.S. at 471. Even wh en the statutory langua ge “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 u nderstanding that the a ffected 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 legisl ative reports presen ted to Congress.” Id. Third, Solem considers, though “[t]o a lesser extent,” “events that occurred after the passage” of th e relevant statute. Id. This evidence can include “Congress’s own treatment of the affected areas” as well as “the ma nner in which the Bureau of Indian Affairs and local judicial aut horities 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 e xpected would happen once land on a particular reservation wa s opened to non-I ndian 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 partic ular surplus land act.” Id. at 472. “Throughout the inquiry,” c ourts must “resolve any am biguities in favor of the Indians” and remember that disestablishment and diminishment ar e not to be lightly found. Hagen , 510 U.S. at 411. The “rule by whic h legal ambiguities are resolved to the benefit of the Indians” is applie d 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 c onclude “that the old reserva tion boundaries survived.” Solem , 465 U.S. at 472.- 37 - * * * * Having addressed AEDPA, the substantiv e law of Indian country jurisdiction, and reservation disestablishmen t and diminishment, we tu rn now to our analysis.
III. DISCUSSION Our analysis addre sses three issues: (A) Whether there was clearly establishe d federal law as determined by the Supreme Court when the OCCA addressed Mr. Murphy’s jurisdic tional claim. We conclude the Solem framework constituted clearly established law. (B) Whether the OCCA rendere d a decision contrary to th is clearly established law when it resolved Mr. Murphy’s ju risdictional claim. We conc lude that it did because the OCCA failed to apply the Solem framework and took an approach incompatible with it. (C) Whether the federal gov ernment has exclusive juri sdiction over Mr. Murphy’s case. We conclude that it does because, under the Solem framework, Congress has not disestablished the Cree k Reservation. Because the crime occurred in Indian country, Oklahoma lacked jurisdiction. We therefore reverse the district court’s denial of habeas relief and rema nd with instructions to grant Mr. Murphy’s applica tion for a writ of habeas cor pus under 28 U.S.C. § 2254. Clearly Established Federal Law A. Our first inquiry under § 2254(d)(1) is whether clearly established federal law governed Mr. Mur phy’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 lim ited 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 cl early 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 alre ady “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 (re servation 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 coun try.’” (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 applie d it to other reservations in the 1990s. See Yankton Sioux Tribe , 522 U.S. at 333, 344 (d iscussing three factors and concluding reservati on 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 (10t h Cir. 2005) (discussing Solem and explaining that “we look to three factors to determine wh ether 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 fo r evaluating claims of ineffe ctive assistance of counsel, see id. at 687 (discussing performance and pr ejudice), and the Cour t has since said this framework c onstitutes 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. § 225 4(d)(1))). Although claims of lawyer ineffectiv eness are each unique and requi re fact-intensive analysis, Strickland ’s framework still applies, and the vari ety 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 re servation was clearly established when the OCCA rendered its decision. The State’s ar guments 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 th e 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. Ap lee. 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 op ened to non-Indian settlement makes a difference to whether Solem applies. In making its disestablishment case, the State relies on statutes that allotte d 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 statut es is the kind of question the Solem framework was built

to answer. The State also argues that Congress, in addition to a llotting Creek lands, “took a number of steps toward[] the complete abolition of the C reek 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 rel ate to reservation disestablishm ent. But the State offers no explanation or legal authority for why legisl ation dealing with a tribe’s political status would make the Solem framework anything less than cl ear when it come s to reservation disestablishment—th e issue before us. Despite its arguments that there is no cl early established law, the State’s brief recognizes Solem is controlling. It defends the s ubstantive correctness of the OCCA’s decision by reference to Solem ’s three-part test. Nowhere doe s the State argue that some other legal framework applies.
* * * * Because clearly established Supreme Cour t law governs Mr. Murphy’s Indian country jurisdictional claim, we proceed to the next step of the § 2254(d)(1) inquiry: whether the OCCA rend ered a decision that was “contrary to” the Solem framework. The OCCA Decision—Contrary to Cl early Established Federal Law B. Before we address whether the OCCA’s decision was “contrary to” Solem , we consider—and reject—Mr. Murphy’s threshol d 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 on e, 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 decide d, based upon the Assistant District Attorney’s urging, that these ques tions 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 alle viated 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 gi ven. 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 Sh aron Blackwell, stated by affidavit that “[t]here was never a formal Creek Nation ‘reservation’ but for practical purposes” certain treaty language wa s “tantamount to a reservation under Federal law.” Thus, the “Creek Nation, historically and traditionally, is a

29 As already mentioned, Mr. Murphy pursu ed three theories for Indian country jurisdiction before the OCCA. This part of the OCCA’s discussion addressing Mr. Murphy’s reservation argument under § 1 151(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) b ecause that issue is not before us. And although Mr. Murphy again raises the allotm ent theory in this appeal, we do not reach that issue because we agree with him that the cr ime occurred within the Creek Reservation.

30 The OCCA referred to Mr . Murphy as “Petitioner.”- 43 - confederacy of autonomous tribal to wns, 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 remain ed intact even after the various Creek lands were subjected to the allotm ent process, but no case is cited for the position that the indivi dual Creek allotments rema in 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 re fused 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, “simpl y 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 w ith more than two decades of experience practicing Indian law with the U.S. Department of the Interior. See Blackwell Aff. ¶¶ 3-4, State Post-Convic tion Record, Vol. 1 at 151. Ms. Blackwell stated the tract of land where the crime occurred “fal ls within the territorial boundaries of the Musc ogee (Creek) Nation.” Id. ¶ 13. As the OCCA pointed out, she stated “[t]here was neve r a formal Creek Nation ‘rese rvation’” because the Creek Nation had “acquired the land at issue in th is 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 Cr eek Reservation. In Ms. Blackwell’s opinion, “[t]he exterior terr itorial boundaries of the Creek Nation were not altered” by congressional acts around the tu rn of the twentieth centur y. Blackwell Aff. ¶ 21. She concluded “the Muscogee (Creek) Nation has not been disestablished” and that “regardless of title ownershi p 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 R ealty Officer for the Creek Nation, rendered a title opinion on behalf of the State.” 124 P.3d at 1203.- 44 - Congress intended to reserv e for a tribe and over which Congress intended primary jurisd iction 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 (parag raph 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 Stat e maintains the OCCA decided the reservation issue on the merits be cause it considered M r. Murphy’s evidence, found it insufficient, and denied relief. Whether the OCCA adjudicated the jurisd ictional claim “on the merits” as that phrase is used in 28 U.S.C. § 2254(d) determ ines our standard of review. As discussed above, we have chosen to assume (w ithout deciding) that AEDPA applies to jurisdictional claims of the t ype Mr. Murphy raises. But even when a type of claim can qualify for AEDPA review, federal courts do not apply AEDPA defere nce when the state court did not adjudicate the sp ecific claim “on the merits.” See Cone v. Bell , 556 U.S. 449, 472 (2009); Stouffer v. Duckworth , 825 F.3d 1167, 1179 (1 0th Cir. 2016) (“[I]f the state court did not decide the claim on the merits, the stringe nt principles of deference under 28 U.S.C. § 2254 are inap plicable.” (quotations omitted)), cert. denied , 137 S. Ct. 1226 (2017). If the state court did not adjudi cate 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 fi ndings, if any, for clear error”).- 45 - The Supreme Court has explained that a st ate court’s decision is “on the merits” even when it denies the prisoner’s claim “without an accomp anying 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 th e 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 (201 3). 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 ava ilable to state prisoners only under the limited circumstances stated in § 2254(d). Although the OCCA’s opinion gives both sides somethi ng to draw on, we agree with the State that the cour t rendered a merits decision. 33 The OCCA remarked in conclusion that it “refuse[d] to step in,” 124 P.3d at 1 208, 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 argumen t was unpersuasive. We do not read the OCCA’s final sentence as a refusal to decide th e reservation question at all but rather as a refusal to decide it in Mr. Mu rphy’s favor. Even if Mr. Mu rphy’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 (discussi ng presumption of merits adjudication). Thus, because the OCCA’s ad judication of the reservation issue was on the merits, AEDPA applies and Mr. Murp hy 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 deci ded the reservation jurisdiction issue, its decision was “contrary to” clearly establishe d Supreme Court authority. We agree.
No citation to Solem a. Nowhere in its discussion of the reserv ation 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 reserva tion disestablishment precedent. 34 This failure to cite governing law, however, doe s not on its own mark the OC CA decision as “contrary to” that law. See Mitchell v. Esparza , 540 U.S. 12, 16 (2003) (p er curiam) (“A state court’s decision is not contrary to cl early established Federal law si mply 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 (200 2) (per curiam). Indeed, AEDPA “does not even require [state court]

awareness of [Supreme Court] cases, so long as neither the reasoning no r 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. Failure to apply Solem b. 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 di sestablished the Creek Re servation. It also did not evaluate the historical context of any laws. Nor did the OCCA evaluate later treatment of the area in question or demographi c history. The OCCA’s decision failed to apply the required legal st andard to the facts. What the OCCA did say in its analysis contradicted Solem

. Instead of heeding Solem ’s “presumption” that an In dian reservation continues to exist until Co ngress acts to disestablish or diminish it, see 465 U.S. at 481, the OCCA flipped th e presumption by requiring evidence that th e Creek Reservation had not been disestablished—that it “still exists today,” 124 P.3d at 1207. In ot her 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 Appeal s identified respondent’s ineffective-assistance-of-counsel cl aim 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 adjudi cation 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 contin ues 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 pres ent 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 Reservati on. 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 faulte d federal habeas courts for concluding state courts issued decisions that were “cont rary to” federal law when the federal court failed to give the “benefit of th e 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 c ourts 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 applie d 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 cas es. The OCCA failed to ar ticulate or apply the proper legal framework anywhere in its opinion, and its analysis is incompatib le with the Solem framework. At oral argument, we ques tioned the State about whether the OCCA had applied Solem : THE COURT: Is there anything to indicate [the OCCA] applied [ Solem ]? Anything? Did they menti on 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 “cont rary to” clearly established law. The State’s arguments c. The State, repeating the OCCA’s mistak e 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 burde n of establishing federal jurisdiction, and the bu rden under AEDPA.” Id. Of course, the burden of showing federal jurisdiction—our jurisd iction 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 hi s burden under AEDPA is to- 50 - show that the OCCA rendered a decision th at was “contrary to” clearly established federal law. He has. For the reasons di scussed 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 w ith the State. As the party bringing the prosecution, the State has the burden to show that the court in whic h 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 pr oving of venue and all other essentials necessary to show jurisdiction and sustain a ju dgment 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 an d diminishment aligns with the State’s burden to show jurisdiction in its chosen forum—state court. The State also argues that our deferenc e to the OCCA should be “at its apex” when the clearly established law states a gene ral standard. Aplee. Br. at 52. Although the State is correct that “the more general th e 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) (bracket s and quotations omitted), and although we further agree Solem supplies a general standard meant for app lication 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 standa rds, the state court mu st actually apply the standard. See Eizember v. Trammell , 803 F.3d 1129, 1140 (10th Cir. 2015) (“The Supreme Court has long recogn ized that a state court’s id entification 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 unde r 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 cr ime. The OCCA re lied 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 cl early established law. That comparison reveals the OCCA’s decision is contrary to Solem

. Mr. Murphy put the issue of whethe r the Creek Reservation had been disestablished squarely before the OCCA, bu t 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 cl aim without AEDPA deference. See Milton , 744 F.3d at 670-71 (explaining that “satis faction of the § 2254(d)(1) standard” does not entitle the prisoner to habeas relief but it does “effec tively remove[] AEDPA’ s prohibition on the issuance of a writ”). We now apply the Solem framework to analyze Mr. Murphy’s jurisdictional claim.- 52 - Exclusive Federal Jurisdiction C. 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 d ecided before December 2005, our de novo analysis of Mr. Murphy’s claim must account for Supreme Court and Tenth Circuit authority post-da ting 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 necessa ry to grant relief”); Williams , 529 U.S. at 406 (explaining that when a state-court decision falls within the “c ontrary 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 aut hority, we (2) recap relevant history of

35 “ [T]he Supreme Court has applied, wit hout 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 ru les 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 applie d 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 ba r 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 b ecause 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 crimin al procedure implicating the fundamental fairness and accuracy of th e criminal proceeding.” Id. at 417 (quotations omitted). Mr. Murphy’s conviction became “fin al” on April 21, 2003—the date the Supreme Court denied his petition for certior ari 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 200 5.) Mr. Murphy has no need for Teague ’s exceptions because he does not seek the benef it 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 d ecide whether these cases qualify as “constitutional” and “procedural” under Teague because, even if they do, they are not “new.” A case doe s not announce a new rule under Teague “when it is merely an application of the principle that governed a prior decisi on to a different set of facts.” Chaidez v. United States , 133 S. Ct. 1103, 1107 (2013) (brackets and quotations omitted). “[A] ru le of general application,” th at is, “a rule designed for the specific purpose of evaluating a myri ad of factual contexts,” will only “infrequent[ly] . . . yield[] a result so novel th at it forges a new ru le, one not dictated by precedent.” Id. (quotations omitted). When a c ourt “appl[ies] a general standard to the kind of factual circum stances it was meant to addr ess, [the resulting decision] will rarely state a new rule for Teague purposes.” Id. ; see also id. at 1107-08 (explaining “garden-variet y applications” of the Strickland framework “do not produce new rules”). The post-fi nality 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 anal ysis to pre-finality law, we would still reac h the same result.- 54 - part framework and conc lude that Congress has not dimi nished or disestablished the Creek Reservation.
1. Additional Legal Background We review the Supreme Cour t’s and our court’s most recent applications of Solem

. Supreme Court authority a. In Nebraska v. Parker , the Supreme Court unanimou sly 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 reserv ation status “and its intent to do so must be clear.” Id. at 1078-79. Parker shed light on how the Solem factors interact and fu rther underscored the importance of discerning congressional intent fro m 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 in dications” of a congressional intent to alter reservation boundaries. Id. at 1079. “[H]allmarks of diminishment” include:

 explicit references to cession or su rrender of tribal interests,

 unconditional congressional commitments to compensate the tribe with a fixed sum for the total surrend er 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 app raisal of certain lands and fo r sales to non-Indians. Id. The- 55 - Court contrasted the statute with earlier ni neteenth century trea ties 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 stat ute 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 intende d to diminish the reservation.” Id. To find diminishment, step-t wo evidence must “‘ unequivocally reveal[] a widely held, contemporaneous understanding that the affect ed 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 memb ers 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—th e 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 so lely on this third consideration to find diminishment.” Id. (alteration and quot ations 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 terr itory 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 hu ndred years, the federal government treated the lands as belonging to Nebraska. Id. at 1082. Of the people living in the town on the disputed s ite, most were not associated w ith the Tribe, and, since the early twentieth century, less th an two percent of the Trib e’s members liv ed in the disputed area. Id. at 1078. This history was nonethele ss 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). De spite the “compelling” justifiable expectations of non-Indian settlers st emming “from the Tribe’s failure to assert jurisdiction” over a long period of time, the Court held such non-Indian expectations “cannot diminish reserva tion 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 atte mpting to discern Congress’s intent. Tenth Circuit authority b. This court has addressed Indian reserv ation 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 agreemen t the federal government negotiated with the Eastern Shoshone and No rthern Arapaho Tribes. Id. at 865, 869.- 57 - 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 belongin g on the Shoshone or Wind River Reservation, Wyoming, for the consideration herein after named, do hereby cede, grant, and relinquish to the Unite d States, all right, title, a nd interest which they may have to all the lands embraced with in said reservation, except the lands within and bounded by th e 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 lan guage, 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 c ontext surrounding the passage of the Act— we found it “further confir m[ed] Congress inte nded 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 fro m the Reservation informed our evaluation of the eventually enact ed law that accomplished that diminishment. Id. at 874-79. Our analysis at step three—concerning th e 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 act ors supporting its respective position,” but because we could not “discern clear congressional intent” fro m the conflicting evidence, we found the later hist ory held little value. Id. ; see also id. at 887-88 (Lucero, J., dissenting) (agreeing with major ity that step three “comes into play only at the margins” and that the post-act history was too “muddled” to provid e clear evidence of congressional intent).
* * * * This more recent case law, though unavailabl e to the OCCA in 2005, informs our de novo review of Mr. Murphy’s claim. I ndeed, we are bound by th is 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 Backgr ound—Creek Nation History The following overview of th e Tribe’s history provides important context for the parties’ arguments and our application of Solem

. Original homeland a nd forced relocation a. The Creek Nation once exerci sed 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 forci bly remove the Five Civilized Tribes [38] from the southeastern United States and relocate them west of the Mi ssissippi River, in what is

38 “The Cherokees, Chickasaws, Choctaws , Creeks, and Seminoles historically have been referred to as the ‘Five Civ ilized 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 no t 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 Na tion entered into several treaties related to this forced relocation. In 1826, the Cr eek Nation “cede[d] to th e 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 fo r 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, Fe b. 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 u nder letters patent issu ed by the President of the United States, dated August 11, 1852, ves ting title in them as a tr ibe, to continue so long as they should exist as a nation and cont inue to occupy the country thereby assigned- 60 - to them.” (citations omitted)). In sum, by the mid-nineteenth centu ry, treaties with the federal government had given the Creek Nation a vast tract of land in modern Oklahoma. Nineteenth century diminishment b. After the Creek Nation’s relocation west , its land was diminished on multiple occasions in the mid-nineteenth century. “In 1856, the Creeks ag reed 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 gov ernment reaffirmed the Creek Na tion’s title and tenure to its remaining Reservation. It guaranteed “that ‘ no State or Territory sh all ever pass laws for the government of the Creek or Seminole tr ibes of Indians,’ and the United States pledged that ‘no portion of either of the tract s of country defined in [the treaty] shall ever be embraced or included within, or annexed to, a ny Territory or State.’” Id. (quoting Treaty with the Creek and Semi nole 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 promis ed would be “‘forever set apart as a home for said Creek Nation.’” Id. (alteration in original) (quoti ng 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 arra ngements in the 1866 treaty by permitting “such legislation as Congress and the President of the Unite d States may deem necessary

39 As discussed below, the Creek Nation contends the 1866 borders remain the Reservation’s bounda ries today.- 61 - for the better administration of justice and th e 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. 1867 Constitution and government c. “In 1867, the Creeks estab lished a written constitutional form of government which included a separation of powers into executive, legisla tive and judicial branches.” Muscogee (Creek) Nation v. Hodel , 851 F.2d 1439, 1441 (D .C. Cir. 1988). Early congressional regulation of modern-day Oklahoma d. “In 1889, Congress cre ated a special federal court of limited jurisdiction in the Indian Territory, which at th at time encompassed most of present-day Oklahoma.” Indian Country, U.S.A. , 829 F.2d at 977. In 1890, “Congress carved th e Territory of Oklahoma ou t 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 Ok lahoma was once the ‘Indian Territory,’ after the creation of Oklahom a Territory in 1890, the ph rase referred to the eastern portion of present-day Oklahoma encompa ssing the lands of the Five Civilized Tribes, plus lands of other tribes situated in the extreme north eastern corner of the state.” Indian Country, U.S.A. , 829 F.2d at 969 n.2. “No territorial government was ever created in the redu ced Indian Territory, and it remaine d subject directly to tribal and federal governance.” Id. at 974.- 62 - “Congress expanded the civil and criminal juri sdiction of the special United States court in the diminished I ndian Territory.” Id. Congress provided that certain laws from neighboring Arkansas would apply in Indian Territory, provided th ey were “not locally inapplicable or in conflict . . . with any law of Congress.” Id. (quotations omitted). “The tribes, however, retained exclusive jurisdic tion over all civil and criminal disputes involving only tribal members, and the incorporated laws of Arkansas did not apply to such cases.” Id. The push for allotment e. “During the 1880s and 1890s, the white po pulation within the Indian Territory grew dramatically.” Id. at 977. “[T]he white ne wcomers were frustrated by the communal tenure of the Indian lands, and pre ssured Congress to break up the tribal land base, attach freely alienable individual title to the land, and ev entually create a new
state.” Id. As already mentioned, the objectives, among others, of this allotment policy “were to end tribal land ownership an d to substitute private ownershi p, on the view that private ownership by individual Indi ans would better advance th eir assimilation as selfsupporting members of our soci ety 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 enco uraged the Five Civilized Tr ibes to allot their lands.- 63 - “In 1893, reflecting federal policies to fo rcibly assimilate Indians into the nonIndian culture and to eventu ally 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, refuse d 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 restric tions on the Indian governments . . . .” Id. In 1897, Congress imposed several measures to force the Creek Nation’s agreement to the allotm ent policy. Congress (1) “provid[ed ] that the body of federal law in Indian Territory, which in cluded the incorporated Arkansas laws, was to apply irrespective of race”; (2) broa dened federal court jurisdicti on, 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, c ontinued 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 fo r forced allotment and termination of tribal land ow nership without tribal consen t unless the tribe agreed to allotment.” Muscogee (Creek) Nation , 851 F.2d at 1441.

41 In 1903, the Supreme Court decide d 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 - Allotment and aftermath f. “In 1901, the Creek Nation fi nally agreed to the allotm ent of tribal lands.” Indian Country, U.S.A. , 829 F.2d at 978. The 1901 Original Allotmen t Agreement (“Original Agreement” or “Agreement”) pr ovided: “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 St at. 861, 862 (Mar. 1, 1901). “Although the vast majority of Creek Nati on 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 Agreemen t exempted certain lands from allotment, such as railroad sites and lands fo r Creek schools and courthouses. ¶ 24, 31 Stat. at 868. It also allowed some non-Indi ans to purchase lands within town sites. See ¶¶ 10-11, 31 Stat. at 865-66. In 1902 , a Supplemental Allotment Agreement (“Supplemental Agreement”) ma de certain amendments. See generally Supplemental Agreement, ch. 1323, 32 St at. 500 (June 30, 1902). 42 The Original Agreement, in addition to providing fo r allotment, addressed governance. It made clear the Creek courts , already abolished in 1898, were not being reestablished. ¶ 47, 31 Stat. at 873. The Ag reement continued presidential review of Creek laws “affecting the lands of the tribe, of indi viduals after allotment.” ¶ 42, 31 Stat. at 872. Further, it anticipated the total elimin ation of the Creek govern ment: “The tribal government of the Creek Nation shall not c ontinue longer than M arch 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 su ch further legislation as Cong ress may deem proper.” ¶ 46,
31 Stat. at 872. As the termination date a pproached, 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 da te set,” and “Congress in earl y 1906 debated and enacted the ‘Five Tribes Act.’” Id. (citing ch. 1876, 34 Stat . 137 (Apr. 26, 1906)). In the Five Tribes Act, “Congress exp ressly delayed any plans to terminate the tribes, and provided that th e tribal governments ‘are here by 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 th e Creek government; it has enjoyed continuous and uninterrupted existence. Even while Congress contemplated the future dissolution of the tribal government, the Creek Nation conti nued to exercise taxing authority within its boundaries as confirmed by a decision of th e Eighth Circuit, our p redecessor court, which then had jurisdiction over the Indian Territory. See Buster v. Wright , 135 F. 947, 951-52 (8th Cir. 1905) (concluding the Creek Na tion retained power “to fix the terms upon which noncitizens might conduct business within its territori al boundaries” and had not “los[t] the power to govern th e people within its borders”), appeal dismissed , 203 U.S. 599 (1906). Creation of Oklahoma g. Months after preserving and extending the Creek tribal government in 1906, Congress passed the Oklahoma En abling Act, ch. 3335, 34 Stat. 267 (June 16, 1906). It- 66 - allowed the Territory of Okla homa, together with the Indi an Territory, to apply for statehood. This law and its 1907 amendment “provided th at 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, ne w state courts “were to succeed the Indian territory courts with respect to the remai ning 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 an d apply to said State.’” Id. (emphasis omitted) (quoting § 13, 34 Stat. at 275). “Fina lly, the enabling act preserved the authority of the federal government over Indians and their lands, and re quired the State to disclaim all right and title to such lands.” Id. (quotations omitted). Oklahoma entered the Union in 1907. See Proclamation, 35 Stat. 2 160-61 (Nov. 16, 1907). Away from allotment h. The 1930s saw another shift in federal policy as “Cong ress repudiated the practice of allotment” and passed the Indi an 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, rev italized tribal “self-government pursuant to constitutions” and allowed “tribes to organize for economic pu rposes pursuant to corporate charters.” Muscogee (Creek) Nation , 851 F.2d at 1442. The Cree k Nation was excluded from the IRA, but, two years later in 1936, Congress passed the Ok lahoma Indian Welfare Act (“OIWA”), which covered th e Creek Nation and, “lik e 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 rea l estate taxes, the Supreme Court acknowledged the Creek Nation’s continui ng vitality: “Thus far Congress has not terminated [its guardia nship] relation with res pect to the Creek Na tion 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. Public Law 280 i. Policy shifted again in the post-World W ar II period, known as the “termination era,” as Congress focused on assimilating I ndians and ending the United States’ trust relationship with many Indian tribes. See Cohen at 92-93. One important law enacte d in 1953, “Public Law 280,” addressed state jurisdiction. It allowed some states “to assert limited civ il 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 . . . th roughout most of the Indi an country with in 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 unnecess ary 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 acquire d jurisdiction over Indi an country through Public Law 280. See Cravatt , 825 P.2d at 279 (“Th e State of Oklahoma has never acted pursuant to Public Law 83-280.” (quoting State v. Klindt , 782 P.2d 401, 40 3 (Okla. Crim. App. 1989))); see also Cohen at 537-38 & n.47. The termination era began to fade in the la te 1950s as federal Indian policy shifted again toward tribal self-government and se lf-determination. See Cohen at 93. A new Creek Constitution j. In 1979, under OIWA, the C reek Nation adopted a new c onstitution “providing for three separate branches of govern ment, including a judiciary.” Muscogee (Creek) Nation , 851 F.2d at 1442. In 1982 , when the tribe sought fund ing from the Bureau of Indian Affairs (“BIA”) for its court system, the D.C. Circuit confronted th e question whether the

43 The six states are Alaska, Californi a, Minnesota, Nebraska, Oregon, and Wisconsin. See id. at 537 nn.44-45.- 69 - 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 th at OIWA had repealed the earlier elimination of Creek courts. Id. at 1444-46. “[T]he Muscogee (C reek) Nation has the power to establish Tribal Courts with civil and crimi nal jurisdiction, subject, of course, to the limitations imposed by statutes genera lly applicable to all tribes.” Id. at 1446-47 (emphases omitted). Our decision in Indian Country, U.S.A. k. 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 Nati on land that had never been allotted and was still held by the Tribe. 829 F.2d at 970. Oklahoma arg ued 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 conclude d in the 1830s and patents i ssued in the 18 50s. These lands historically were consid ered Indian country and still ret ain 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 be en 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 Reserva tion. If the Reservation’s bou ndaries are still intact, the crime occurred w ithin 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 th e Creek Nation disagree. We conclude Congress has not disestablis hed the Creek Reservation. The most important evidence—the statutory text—fails to reveal disestablishm ent at step one. Instead, the relevant statutes contain la nguage affirmatively recognizing the Creek Nation’s borders. The eviden ce 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). Becau se our application of the Solem framework shows Congress has not disestablishe d the Creek Reservation, the crime in this case occurred within th e Reservation’s boundaries. The State of Oklahoma accordingly lacked jurisdiction to prosecute Mr. Murphy. Step One: Statutory Text a. The State argues the Creek Re servation 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 dise stablished the Creek Nation reservation through the use of such word s as ‘cede’ or ‘relinquish.’” Aplee. Br. at- 71 - 57. It attempts to show disestablishment ba sed on the collective weight of eight different laws enacted between 1893 and 1906. At oral argument, we asked whether th e State was relying on any particular statutory language in any of thes e laws for its step-one argument: THE COURT: Where do you find your st rongest statutory language that the Creek Reservation was diminish ed or disestablished? THE STATE: You have to start before the 1901 Allotment Act. . . . In 1893, Congress passed the law wh ich set up the Dawes Commission. THE COURT: I asked for statutory la nguage, 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, Congr ess said that they were appointing the Dawes Commission to negotiate w ith the Tribes in whatever means necessary in order to create a State em bracing the Indian Territory and to substitute for the tribal govern ments 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 disestablis hment in the Act? You haven’t given us in your brief or anything yo u 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, ev en if they don’t use th e words. Can you give us some examples? THE STATE: Of course—- 72 - THE COURT: Counsel, on the same point , I think . . . wh at 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 pa yment. 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 su mmary sort of an answer? We’re looking for specific language. THE STATE: Other than the entire contex t 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 ha ve any language? THE STATE: I do not have a specific se ction 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, t hose sorts of things that have happened in other cases. But wh en 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, th e 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 dise stablishment. Oral Arg. at 53:18-21. We question whether the State’s argumen t based on the overall thrust of eight different laws deserves to be called a step-one argument. At step one, “we start with the- 73 - 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 St ate does not present us with any particular statutory language to analyze. Our independ ent review of the laws has not uncovered a provision on which the Stat e 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 “h a[s] failed at the fi rst and most important step.” Parker , 136 S. Ct. at 1080. In fact, th e step-one evidence shows Congress recognized the existen ce of the Creek Nation’s borders. An d the State’s attempts to shift the inquiry into questions of title and governan ce are unavailing. i. The statutes We discuss the State’s eight st atutes in chronological order. 1) Act of March 3, 1893, ch. 2 09, 27 Stat. 612 (“1893 Act”) The State first draws our attention to an appropriations law providing money for the federal government to fulfill treaty obliga tions with Indian tribes throughout the country. With respec t to the Creek Nation, the 1893 Act provided funding for treaties- 74 - from 1790 to 1866 to pay for, among other thi ngs, 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 Cr eek Nation and the other tribes for the purpose of the extin guishment of the national or tribal title to any lands within that Territo ry 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 divisi on of the same in severalty among the Indians of such nations or tribes, re spectively, 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 em brace the lands within said India[n] Territory. § 16, 27 Stat. at 645. Congress provided the negotiators’ priorities sh ould be “first” to procure an allotment of lands “as may be agr eed upon as just and proper to provide for each such Indian a sufficient quantity of land fo r 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 member s who accepted an allotment would be deemed U.S. citizens. § 15, 27 Stat. at 645. The Supreme Court has explained that “the extension of citizenshi p status to Indians does not, in itself, end the powers given Congress to d eal with them.” United States v. John , 437 U.S. 634, 653-54 (1978). “Nor has [U.S.] citizenship prev ented the Congress . . . from continuing to deal with the tribal la nds of the Indians.” Tiger v. W. Inv. Co. , 221 U.S. 286, 312 (1911). See generally Cohen at 922-24 (discu ssing citizenship).- 75 - terms as shall be agreed upon, of any land s 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 w ith 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. 3 98, 29 Stat. 321 (“1896 Act”) The State next relies on an 1896 appr opriations law in which Congress again provided money to fulfill treaty obligations with the Creek Na tion. 29 Stat. 326-27. The 1896 Act declared it “the duty of the United States to es tablish 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 prescrib ed to them.” 29 Stat. at 339. Nothing in this law alte red 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 appr opriations statute in which Congress again approved funds to satisfy obligations aris ing 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 exclus ive jurisdiction” over both civ il and criminal cases in the Indian Territory. 30 Stat. at 83. The la ws of the United States and of neighboring Arkansas, which were already in force in the Indian Te rritory, 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 presidenti al 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 Tr ibes reached a negotiated agreement with the Dawes Commission, that new agreement, once ratified, would “suspe nd” any provisions of the 1897 Act inconsistent with the agreement. Id. In sum, this statute altered federal and tribal governance arrangements in the Indi an 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 th e Curtis Act, tribal courts would be abolished within the year. § 28, 30 Stat. at 504-05. All cases wo uld be transferred to the United States court in the Indian Territory, and tribal laws wo uld 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 tr ibal citizenship rolls and survey of tribal- 77 - 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 allo tment 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 Agreem ent,” ch. 676, 31 Stat. 861 (March 1, 1901) The Creek Nation reached a negotiated agr eement with the federal government for the allotment of tribal lands, and Congress passed it into law in 1901. The Original Agreement, supplemented by another agreemen t we discuss below, specified that its terms would control over conflicting federal st atutes and treaty prov isions, but it “in no wise affect[ed]” treaty provisio ns consistent with the Agreement. ¶¶ 41, 44, 31 Stat. at 872. Our discussion of the Original Agreem ent covers (a) the allotment of Creek lands, (b) provisions concerning town sites, (c) land s reserved for tribal purposes, and (d) the Agreement’s plan for future governance within th e borders of the Creek Reservation. a) Allotment The Agreement’s central purpo se was to facilitate a tran sfer of title from the Creek Nation generally to its member s 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 pr oposed 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 Na tion did not ratify the agreement. A different allotment agreemen t was reached in 1901, and we discuss it in the next section.- 78 - appraised and allotted “among th e citizens of the tribe.” ¶¶ 2-3, 31 Stat. at 862-63. 46 Tribal citizenship rolls determ ined 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 wher e 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 tr acts 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 valuab le lots could have the excess value charged against their entitlement to other tribal funds. ¶ 3, 31 St at. 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 c itizens who had built improvements or possessed particular lands could select those lands. See ¶¶ 3, 5-6, 31

46 The Agreement defined “citiz en” as “a member . . . of the Muskogee tribe or nation of Indians.” ¶ 1, 31 Stat. at 862. The Act stipulated “t he 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 assigne d the task of transferring title from the Tribe to the individual allott ees. ¶ 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] allotm ent 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 a ll his right, title, and interest in” the rest of the allotted lands as provided in the Agreement. Id. The Secretary of the Interior was suppos ed to approve the conveyances, and this approval would serve “as a relin quishment” to the Creek citiz en “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 con tinuing federal supervision. For example, it restricted the ability of allott ees 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 ag ed and infirm persons”—the Agreement provided a mechanism for selection on their beha lf 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 ha ve 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 l ong as they shall exis t as a nation, and continue to occupy the country hereby assigned them”); § 15, 27 Stat. at 645 (consenting that “upon the allotment of the la nds held by [the Five Civilized Tribes] the reversionary interest of the United States therein sh all be relinquished and shall cease”).- 80 - allotted lands generally, but a 21-year restri ction 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 restri ctions. ¶ 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 pers on,” not just Creek citizens, “in rightful possession of any town lot having improvemen ts thereon” was give n 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 Agreem ent instructed town surveyors to set aside lands for cemeteries, ¶ 18, 31 Stat. at 870, an d lots where church houses had been erected were c onveyed to the churches at no cost, ¶ 21, 31 Stat. at 867. Educational institutions in Mu skogee and other towns “in th e Creek Nation” were given

50 The Agreement gave municipal corpor ations authority to issue bonds and borrow money for public projects such as for “the construction of sewers, lighting plants, waterworks, and schoolhous es.” ¶ 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 bu ildings 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 ce rtain other lands would be “reserved from the general allotment” scheme. ¶ 24, 31 Stat at 868. Most of the reserved lands were for tribal purposes: Cr eek schools and orphan homes, ¶ 24(c)-( l ), 31 Stat. at 868; cemeteries, ¶ 24(m), 31 Stat. at 868; a un iversity, ¶ 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 bot h 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], or dinance[s], [and] resolution[s]” of the Creek National Council remained subject to pr esidential approval, but the Agreement- 82 - recognized the Creek government ’s authority to regulate “the lands of the tribe” as well as lands belonging to “indi viduals after allotment.” Id. ; see also id. (providing for Creek regulation, with presidential oversight, of “the m oneys 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 Trib e continued to exercise au thority over its finances: “No funds belonging to said tribe shall hereinaf ter be used or paid out for any purposes by any officer of the United States without c onsent 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 gove rnment 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 Counc il 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 tr ibe” to enforce liens against the property of people who defaulted on their purchase of pr operty in towns. ¶ 30, 31 Stat. at 870. Despite these recognitions of conti nuing Creek governmen tal authority, the Agreement contemplated this authority woul d 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 abolis hed under the Curtis Act, were not reestablished. ¶ 47, 31 Stat. at 873.- 83 - a date for the dissolution of the tribal go vernment 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 Un ited States, many of wh ich were expressly tied to the Creek Nation’s territorial bounda ries. For example, the Secretary was authorized to collect a grazi ng 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 c itizens could dispose of timber on their allotments, no timber could be taken fro m unallotted lands “without payment of [a] reasonable royalty” and under co nditions prescribed by the S ecretary. ¶ 38, 31 Stat. at 871. The mineral-leasing prov isions from the Curtis Act were not to apply “in the Creek Nation.” ¶ 41, 31 Stat. at 872. And the Unite d States agreed to ma intain strict laws against the introduction of liquor “in said nation.” ¶ 43, 31 Stat. at 872. 52 To summarize, the Original Agreem ent shifted communal Creek land into individual allotments and provided for dissolu tion of the tribal government in the future.

52 The task of removing “objectiona ble” 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 ove rsight. ¶ 40, 31 Stat. at 871-72. The Agreement included a hiring preference fo r Creek citizens in teaching positions. ¶ 40, 31 Stat. at 872.- 84 - It also reserved from allotmen t 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 A llotment Agreement clarifie d the Original Agreement and made several amendments. Allotment-elig ible lands would be appraised at no more than $6.50 per acre, not including improvement s. ¶ 2, 32 Stat. at 500. The Dawes Commission was assigned exclusive jurisdiction to resolve the disputes of Creek citizens over the selection of particular a llotments. ¶ 4, 32 Stat. at 501. 53 The Supplemental Agreement made corrections to the Creek Na tion’s citizenship rolls and addressed the situation of citizens entitled to an allotment wh o 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 th e 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. Re strictions on leases were also clarified. See ¶ 17, 32 Stat. at 504 (addressi ng leases for mineral extraction (prohibited), grazing (limited to one year), an d agricultural purposes (limited to five

53 See also ¶ 5, 32 Stat. at 501 (providing fo r 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 la nds 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, follo wing 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 Secret ary “during the continuance of the tribal government” to defend allottees against cl aims on their land arising from illegal leases and conveyances). Overall, the Supplemental Agreement c ontinued 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, 1906 54 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 trib al 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 dissol ution of the Creek government, see ¶ 47, 31 Stat. at 872, but Congress extended the Creek gover nment’s existence be fore the deadline on March 2, 1906, see 34 Stat. 822. As this section discusses, the Five Tribes Act extended the Creek government agai n, this time indefinitely.- 86 - force and effect for all purposes authorized by law, until ot herwise provided by law.” § 28, 34 Stat. at 148. It continued presidentia l oversight of tribal legislation, and further restricted tribal legislative functions by lim iting 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 receive d authority to appoin t 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 Secretar y 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 go vernment. § 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 mo ney or lands claimed by the Creek Nation. § 18, 34 Stat. at 144. 56

55 The State contends these laws “carry le ss weight” because they were passed after the allotmen t agreements. Aplee. Br. at 62. This suggests the State considers the 1901-02 allotment agreemen ts to be the legislative enactments in which Congress disestablished the Creek Rese rvation, yet the State include s the 1906 statutes in its step-one argument. We consid er the text of the 1906 laws as step-one evidence, as opposed to step-three, later-his tory evidence, because statut ory 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 th e town level. It provided for the operation of light and power companies with in the Indian Territory and granted new Continued . . .- 87 - The Five Tribes Act cont inued many of the restrict ions on allotted lands and amended others. Congress continued the Original Agreement’s provisions for the equalization of Creek allotments. § 2, 34 St at. at 137-38. It also clarified that lands reserved for public purposes would “revert to th e 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 Secret ary was instructed to sell unallotted lands not otherwise provided for and depos it the proceeds into the Treasu ry for the Tribe’s benefit. § 16, 34 Stat. at 143. 57 New 25-year restriction pe riods against alienation and encumbrance were imposed on allotted la nds, 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 leas e their lands, subject to restri ctions. §§ 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 Secret ary 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 paymen ts 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 la ws 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 gove rnment. § 21, 34 Stat. at 145. Adult Indian heirs were permitted to sell the lands they inhe rited, 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 governme nts—be they state, territorial, county, or municipal—received the first chance to buy; pr oceeds would be depo sited 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. A nd, as mentioned above, the Act extended the tribal governments’ exis tence 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 recogn ized 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[] belongi ng 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 th e implementation of § 15—providing for the sale of tribal property—a nd clarified it would “not take effect un til the date of the dissolution of the tribal governments of th e 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 gran ted 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 th e State of Oklahoma. § 1, 34 Stat. at 267-68. Congress imposed restrictions on the ne w state’s ability to affect I ndians 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 ri ghts shall remain unextinguished) or to limit or affect the authority of the Gove rnment of the United States to make any law or regulation respecting such In dians, 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 b oundaries thereof, and to all la nds 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 ex tinguished by the United States, the same shall be and remain subject to th e jurisdiction, disposal, and control of the United States. § 3, 34 Stat. at 270. Congress also prohibite d the new state from allo wing the liquor trade for 21 years within th e Indian Territory, the bordering Osage Reserv ation, and “any other part of said State which existed as Indian rese rvations” as of 1906. § 3, 34 Stat. at 269. Oklahoma was awarded five seats in the Hous e of Representatives. § 6, 34 Stat. at 271-72. Congress instructed that the third di strict 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 ce rtain townships for the State’s school system but withheld “any lands embraced in Indi an, 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 sh all have been extingui shed 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, th e territorial laws in force within the Territory of Oklahoma would take effect stat ewide, 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 alr eady 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 citizen s, and Congress established the State of Oklahoma. We now consider further whethe r, 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 Reserva tion thus falters at “the firs t 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- 91 - Creek Reservation’s boundaries. See id. at 1079. Second, specific statutory language— “[t]he most probative eviden ce of congressional intent,” Solem , 465 U.S. at 470—shows Congress continued to recognize the Reservati on’s borders. Third, the State’s reliance on the statutes’ reforms of title and governance arrangements within the Reservation is unavailing because these ch anges did not disestablis h the Reservation. 1) No hallmarks of disestablishment or diminishment Congress never expressly terminated the Cr eek Reservation in any of the statutes, nor did it use the kind of la nguage 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 “anticip ated [its] imminent demise” and “passed the acts partially to facilitate the process,” but Solem prevents courts from “extrapolat[ing]” this general cong ressional expectation into “a specific congressional purpose” with respect to a gi ven reservation. 46 5 U.S. at 468-69; see also Shawnee Tribe , 423 F.3d at 1220 & n.18 (expla ining that, notwithstanding the “Congressional desire to end the reservati on system,” the questi on of “[w]hether a particular treaty or Congressional act was in tended to extinguish some or all of an existing reservation requires a case-by-case anal ysis”). “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 congressi onal purpose to disestablish the Creek Reservation’s borders.- 92 - We have not identified termin ation 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 notab le because Congress is fully capable of stating its intention to disest ablish or diminish a reservati on, as the following examples illustrate:

 “[T]he Smith River reservation is here by 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 la nguage of express termination”).

 “That subject to . . . allo tment . . . a [legislatively defined] portion of the Colville Indian Reservation . . . is here by, vacated and restor ed to the public domain . . . .” Act of July 1, 18 92, 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 (dis cussing as example of diminishment language).

 “Subject to the allotment of land . . . and for the considerations hereinafter mentioned . . . [the] Comanche, Kiow a, and Apache Indians hereby cede, convey, transfer, relinquish, and surre nder, forever and ab solutely, without any reservation whatever, express or im plied, 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 th e 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 w ithin said reservation sh all 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 stat ute 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 he reby, 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 herein after named, do hereby cede, grant, and relinquish to the Unite d States, all right, title, a nd interest which they may have to all the lands embraced w ithin the said rese rvation, except the lands within and bounded by the following lin es . . . .” Act of March 3, 1905, ch. 1452, art. 1, 33 Stat. 1016, 1016; see Wyoming , 849 F.3d at 870 (calling this language “precisely su ited to diminishment” (quotations omitted)). 60 Indeed, Congress has had no difficulty addressing the boundaries of the Creek Reservation, and, as the following treatie s 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 St ate 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 with in 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 appropri ations law—the State’s first statute—Congress provided money to satisfy su m-certain purchases of Indian lands under agreements previously negotiate d with two Tribes. First, Congress approved $30,600 “to pay the Tonkawa tribe of Indians in the Terr itory of Oklahoma for all their right, title, claim, and interest of every kind and charact er 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 a ll 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 lim its 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 Treat y, art. 1, 11 Stat. at 699; see also id. at art. 2, 11 Stat. at 700 (“The follo wing 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 specifie d lands in consider ation 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 di vided 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 fo rever set apart as a home for said Creek Nation; and in consideration of sa id 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 diminishme nt and a later enactm ent “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 wh ich 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 vacati ng 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 Co lville Reservation in a manner that makes it clear that the intention of Congress was that the reserva tion should continue to exist as such”).- 95 - Although the State contends the cumu lative force of the eight statutes disestablished the Creek Reservation, Cong ress 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. Da ys later, on June 21, Congress recommitted to the boundary separating “the Cr eek Nation” and “the Territory of Oklahoma.” Act of June 21, 1906, ch. 3504, 34 Stat. 325, 364. Th e line, surveyed in 1871 and reestablished by the U.S. Geological Survey in 1 895 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 Indi an 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 di minish.’” 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 uncove rs no other language to overco me the presumption that the Creek Reservation continues to exist. See Solem , 465 U.S. at 481. In fact, the Original Agreement recogni zed the Reservation’s boundaries. 2) Signs Congress continued to recognize the Reservation The eight statutes not only lack textua l evidence that Cong ress disestablished the Creek Reservation, the Origin al Agreement contains langua ge 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 (munic ipal corporations “in the Creek Nation”); ¶ 37, 31 Stat. at 871 (introduction of cattle “i nto 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 ci rculation 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 rese rved 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 su ch 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-In dian settlement. Congress a nd 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 pr ovided 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 “r eceiv[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 a nd quotations omitted)). Thus, not only do the State’s statutes l ack any language showing disestablishment, they show Congress’s con tinued recognition of the Reservation’s boundaries. 3) The State’s title and governance arguments The State’s arguments for disestablishm ent based on Congress’s general goals of extinguishing tribal title and es tablishing a new state governmen t fail. Relying on its first statute—the 1893 appropriations law in which Congress announced the commencement of negotiations—the State argues Congre ss intended to disestablish the Creek Reservation because Congress ai med for (1) the “extinguishmen t” of tribal title and (2) the “ultimate creation” of one or more state governments in th e 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 disestablis hed 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 an d 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 reserv ation.” 18 U.S.C. § 1151( a). Based on this definition, the Supreme Court has accepted th e “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 w ith the other, as title and reservation status are not congruent concepts in Indian law.” Navajo Tribe , 809 F.2d at 1475 (footnote and qu otations omitted). In other word s, 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 (observi ng “the distinction between title and boundary [is] an important one”); see also Solem , 465 U.S. at 470 (“[N]o ma tter what happens to the title of individual plots within the area, the entir e block retains its reservation status until Congress explicitly indicates otherwise.”). The allotment of Creek lands—the tran sfer of title from the Tribe to its members—does not mean Congress disestablished the Creek Re servation. 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-Indian s 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 re servations, 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 showi ng 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 Cr eek 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 th e Creek Reservation show that Congress disestablished the Reservation. The State argues the erosion of Creek governmental authority and the creation of Oklahoma demo nstrate 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 Stat e’s brief recognizes this point. See Aplee. Br. at 89 (arguing Mr. Murphy has “confuse[d] the qu estion 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 St ate’s attempt to tie Congre ss’s regulation of the Creek- 100 - government’s authority to wh at 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 th at dissolution of a tribal government is relevant to disestablishing a reservation, th at would not mean the Creek Reservation has been disestablished. This is so because Congress never dissolved the Creek government. Even when C ongress contemplated the future dissolution of the Creek government, it continued to recognize the Tr ibe’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 th at Congress decided not to implement that goal, and instead explicitly perpetuated the Creek Nation and recognized its continuing legislativ e 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 rese rvations co-exist thro ughout the country. See,

62 The State’s contention that regulation of the tribal government indirectly reveals what Congress thought about th e 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 wa y, it fails to show Congress disestablished the Creek Reservation’s boundaries.- 101 - e.g. , Parker , 136 S. Ct. at 1076 (Omaha Indi an Reservation w ithin Nebraska); Solem , 465 U.S. at 465-66 (Cheyenne River Siou x Reservation within South Dakota); Indian Country, U.S.A. , 829 F.2d at 976 (Creek Res ervation 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, indivi dually or collectively, show that Congress disestablished the Creek Reserva tion. They lack any of the “hallmarks of diminishment,” Parker , 136 S. Ct. at 1079, and wh at they do say supports th e 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. Step Two: Contemporar y Historical Evidence b. When the statutory text at step one does not reveal that Congress has disestablished or diminished a reservati on, such a finding requires “unambiguous evidence” that “ unequivocally reveals” congressional intent. Parker , 136 S. Ct. at 1080- 81 (alterations and qu otations omitted); see also Solem , 465 U.S. at 478 (“[I]n the absence of some clear statemen t of congressional intent to alter reservation boundaries, it is impossible to infer from a few isolated an d ambiguous phrases a congressional purpose to diminish [a reservation].”). At step two of the Solem analysis, courts consider ho w pertinent legislation was understood to affect the reserva tion when it was enacted. Ev idence of this contemporary understanding may in clude 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 eviden ce to find disestablishment. In Osage Nation , we concluded Congress had disestablished the Osage Reservation, despite an absence of clear textual evidence, because we found “t he legislative history and the negotiation process [made] clear that all the parties at th e 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 historic al evidence shows Congress intended to disestablish the Creek Reservation. Mr. Mu rphy and the Creek Nation contend there is no unequivocal historical evidence of disestab lishment. Instead, th ey argue the evidence supports continued recognition of the Creek Nation’s borders during the relevant period. The mixed evidence we discu ss 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 disestabli shment or diminishment of the Creek Reservation was not before us in th at 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 st atement that the Creek reservation was disestablished was dicta . . . .”).

64 Had the State chosen to present its eight-statute, cumula tive-effect argument as step-two contextual evidence—as oppo sed 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 evid ence comes from the years pr eceding the 1901 Original Allotment Agreement. On th eir own, pre-1901 understandi ngs 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 intentio n 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 afte r 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 lo ok 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 historic al evidence that the Reservation was disestablished is mixed.- 104 - 1) 1892 Senate debate The State cites Hayes for its earliest historical evid ence of Congress’s intent to disestablish the Creek Reservation. Hayes , a 1927 decision by the Eighth Circuit, discussed an 1892 Senate floor debate in wh ich Senators Jones and Platt opposed a joint resolution proposing to create a commission to ne gotiate 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 govern ments 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 singl e advantage we have.” Id. Senator Platt thought the “real question” was whether the country could “endure five separate, independent, sovereign, and al most wholly foreign go vernments 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 Te rritorial or State government, so long as the tribes continued to exist and occupy the la nds,” he contended things had changed. Id. The “original idea” had been “that white pe ople were not to dwell in that country,” but he thought the influx of wh ite settlers into the Indian Te rritory showed the Tribes no longer wished to remain isolated. Id. The changing demographi c 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 Indi an 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 la nds and to secure conditions “suitable to enable the ultimate creation of a State or St ates of the Union which shall embrace the lands within said India[n] Territory,” § 16, 27 Stat. at 645. This legislative history of a failed resolu tion 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 a nd 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 regula ting the Indian Territory. See 174 U.S. at 483. The report noted 1890 census figures showing the white p opulation 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 commun ity 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 Tr ibes held title for the benefit of all their citizens, the report found that some tribal citizens, “frequently not Indians by blood but by intermarriage,” ha d managed to take effective control over large swaths of the best agricultural land and earn private in come 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 reform ing the situation, labelling “their system of government” as “not only non-Amer ican” 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 conditi ons does not address whether Congress understood its later reforms w ould 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 government s” in the Indian Te rritory were “wholly corrupt, irresponsible, and unworthy to be lo nger 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 constitutiona l obligations to see to it that government everywhere within its jurisdiction rests on th e consent of the governed.” Id. at XC. The State argues an 1897 report by the Secr etary of the Interior similarly found that a uniform system of government would ha ve 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 Congre ss before both sides agreed to the Original Allotment Agreemen t, 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 unequ ivocal historical evidence supporting disestablishment. To the contrary, he and the Tribe cite sources from both before and after the 1901 Original Agreement to argue th e 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 di scussed the Commission’s negotiations and explained the Tribes had refused to discuss changes “in resp ect 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 la nds 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 lette r 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 thes e 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 au thority they have, to conf er with you upon lines that will result in promo ting the highest good of yo ur people and securing to each and all of them their just ri ghts under the treaty obligations which exist between the United St ates and your nation. H.R. Doc. No. 54-5, at LXXXI. These tr eaty 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 th e Indian country occupied by the Five Civilized Tribes” to argue the 1898 Curtis Act did no t affect the Reservation’s boundaries. 23 U.S. Op. A tt’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 explaine d that the Tribes, even after passage of the Curtis Act, still had the powe r 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 exemptio n from the laws of such nation.” Id. at 217. Tribal laws “requiring a permit to reside or carry on business in the Indian co untry” were still in effect. Id. Non-members grazing cattle or othe rwise occupying Indian lands were “simply intruders” who “should be removed, unless they obt ain 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 In dian 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 pastur ed on the public land without Indian permit or license, where such license or permit is required; and this is not intended as an enumera tion 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, 8 12 (Indian Terr.) (upholding Creek occupancy tax imposed on non-member lawyers practic ing law within the Creek Nation), aff’d , 105 F. 1003 (8th Cir. 1900). 4) Post-allotment evidence Mr. Murphy and the Tribe argue contem porary historical evidence shows an understanding that the Creek Nation’s borders c ontinued after allotment. In its report to Congress in 1900, the Dawes Commission refl ected on what its negotiations had—and had not—achieved: Had it been possible to secure from th e Five Tribes a cession to the United States of the entire territory at a gi ven price, the tribes to receive its equivalent in value, preferably a sti pulated amount of the land thus ceded, equalizing values with cash, the dutie s of the commission would have been immeasurably simplified, and the Go vernment would have been saved incalculable expense. . . . When an understanding is had, however, of the great difficulties which have been expe rienced in inducing the tribes to accept allotment . . . it will be seen how impossible it woul d 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 th at, in the years immediatel y following passage of the allotment agreements, the region al 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 ha d refused to pay. 135 F. at 949-50. The non-Indian business owners sought to enjoin federal en forcement 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 g overn 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 w ithin 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 ma tter is that purchasers of lots in town sites in towns or cities within th e 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 thos e towns, and that the Secretary of the Interior and his su bordinates may lawfully enforce those laws by closing the business of t hose who violate them, a nd 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 onl y as a contemporary source revealing an understanding that Congress had not disestablished th e Creek Reservation. Continued . . .- 112 - iii. Analysis The State’s evidence at step two largely speaks to chan ges (or anticipated changes) in title and governance. It does not show th at Congress understood it was disestablishing the Creek Reservation. A lthough Mr. Murphy and the Creek Nation present counter evidence showing a continuing understanding that the Creek Reservation’s borders remained intact, we need no t 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 ev idence in no way ‘ unequivocally reveal[s] a widely held, contemporaneous un derstanding 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 evid ence, whether viewed in isolation or in concert, shows unmistakable congressional intent to disestab lish the Creek Reservation. The State’s historical evidence supports the notion th at 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 invalidat ed 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 doi ng so, the Court made clear that it has never endorsed Buster ’s broad statement “that an I ndian 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 Indi an taxing authority is irrelevant. Mr. Murphy a nd the Creek Nation rely on Buster simply as contemporary historical evidence.- 113 - holdings to individual allotm ents. But this does not show, unequivocally or otherwise, that Congress had erased or ev en reduced the Creek Reservation’s b oundaries. Even if the State’s evidence offers so me 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 Reserv ation’s borders continued. The step-two evidence is at most debatable, and we ne ed 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-te xt analysis fails to show that Congress disestablished or diminished the Creek Res ervation, and there is no unequivocal evidence of a contemporaneous understa nding that the legislation term inated or redrew the Creek Nation’s borders at step two. We turn to step three. Step Three: Later History c. We consider at step three “fed eral and local authorities’ a pproaches to the lands in question and . . . the area’s subs equent 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). “C ongress’s own treatment of the affected areas,” especially in the years i mmediately following passage of legislation that opens a reservation to non-Indian settle ment, “has some ev identiary value, as does the manner in which the Bureau of Indian A ffairs 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 diminish ment because “[e]very surplus land Act necessarily resulted in a su rge of non-Indian settlement and degraded the ‘Indian character’ of the reservation.” Yankton Sioux Tribe , 522 U.S. at 356. Solem provides that, as compar ed 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 statutor y 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 eviden ce 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 wh at later Congresses understood about the Creek Reservation’s existence. We start with the earliest examples. The Creek Nation cites the following stat utes in arguing Congress continued to recognize the Reservation’s bou ndaries following passage of the allotment agreements: Act of April 21, 1904, ch. 1402, 33 Stat. 18 9, 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 au thority); 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 (app ropriating money for “the common schools in the Cherokee, Cr eek, 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 (repeati ng the Court’s “longstanding observation that the views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one” (b rackets and quotations omitted)). The Creek Nation cites other statutes show ing 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 St at. 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. 8 31, 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 reserva tions within their definitions, however, and none of them reference the Creek Reservati on as being disestablished in particular. Congress’s choice to include former reserv ation lands in Okla homa within various regulatory programs does not show that Congress has disestablished the Creek Reservation. The State also cites two congressional comm ittee reports. First, a 1935 report by a Senate committee said that in Oklahoma, as the result of allo tment, “Indian reservations as such have ceased to exist.” S. Rep. No. 74-1232, at 6 (1 935). 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. Re p. No. 82-2503, at 745, 753, 777, 793, 952 (1952)). Mr. Murphy and the Cree k Nation do not address this report, but the State does not explain why “areas” and “r eservations” cannot refer to the same land. Altogether, these conflicting signals fro m later Congresses do not overcome the lack of evidence at steps one and two. Given “the textual and contemporaneous evidence” in this case, “confusi on 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 exampl es: 12 U.S.C § 47 02(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 actu ally 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 cont inued 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 consisten tly included the Creek Nation in tables summarizing reservation statistics. See Creek Nation Br., App’x B. Similarly, the Department continued to include the Cr eek Nation on its “Maps Showing Indian Reservations within the Lim its of the United States.” See id. App’x C (maps from 1900- 14). But the State argues a later BIA regula tion concerning land acquisition policies shows that the BIA concluded the Creek Re servation 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, Indi an reservation means that area of land constituting the former reservati on of the tribe as defined by the Secretary. 25 C.F.R. § 151.2(f) (2016). 67 Even if this evidence suppor ts 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) (announc ing regulation’s finalization).- 118 - The Supreme Court has said that govern ment 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, mo re generally, the “subsequent treatment of the disputed land cannot overcome the statutor y text” when the relevant laws are “devoid of any language” indicating Congress inte nded 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 un derstandings 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, 6 02-03, 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 trac t “formerly part of the domain of the Creek Nation,” but, in the next sentence, the opi nion explained “[t]he tract was allotted to Agnes Hawes, a Creek freedwoma n.” 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 fo rmer Creek Nation”); Washington , 235 U.S. at 423 (referring to “lands wi thin 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 Rese rvation had been disestablishe d, these references, as the State acknowledges, are dicta. The Creek Nation argues that “[f]ederal courts in th e decades after allotment sometimes subscribed to [the] erroneous as sumption” that the Creek Reservation had been disestablished based on a mistaken belie f 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—t hat 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 Al lotment Agreement].” 51 Ct. Cl. 125, 127 (1916), aff’d , 248 U.S. 354 (1919). But, as disc ussed 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 pursuan t to” the Original Agreement. Turner , 248 U.S. at 356. But, as th e Court later reco gnized, 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 trib al governmental powers is distinct from reservation boundaries, but the Creek Nation pe rsuasively argues these clear errors are an “indication of just how shaky such judicial assumptions were” in the decades after allotment. Creek Na tion Br. at 32-33. Scattered dicta in later court decisions do not justify a conclu sion 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 “w hether the exterior boundaries of the 1866 Creek Nation have been disestablished”). 4) Oklahoma The Creek Nation acknowle dges the State “asserts c onsiderable governmental authority over the Creek reservation.” Cr eek 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 Nati on 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 allotm ent. 61 P.2d 1139, 1141-42 (Okla. Crim. App. 1936), overruled by Klindt , 782 P.2d 401. The defendant argued the federal district cour t had exclusive jurisdiction. Id. at 1143. The OCCA- 121 - concluded state jurisdiction was proper and sa id Congress had failed to reserve federal jurisdiction for crimes committed within the form er Indian Territory. Id. at 1154, 1156. 68 Since then, however, the st ate courts have changed course. In 1989, the OCCA concluded Nowabbi had erred in holding Oklahoma ha d jurisdiction to prosecute an Indian defendant for a murder commi tted on an Indian allotment. See Klindt , 782 P.2d at 404 (“There is ample eviden ce 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 ha s shifted away from its earlier position that there is no Indian country in the former Indian Territory. The State has not provided us with ot her examples of Oklahoma prosecuting Indians for murders committed within the Creek Reservation, 69 but such cases would be

68 The Oklahoma Attorney General similarly conclude d in 1979 that Oklahoma has jurisdiction over the former Indian Te rritory: “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 ‘Indi an 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 atte mpt 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 re servation 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 . . .- 122 - of little value because the Supreme Court has e xplained that even when a state’s exercise of jurisdiction goes unquestione d, 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 St ate’s exercise of jurisdiction proper: [The State argues] that since 1830 the Choctaws residing in Mississippi have become fully assimila ted into the political and social life of the State, and that the Federal Government long ago abandoned its supervisory authority over these Indians. Becaus e of this abandonment, and the long lapse in the federal recognition of a tr ibal organization in Mississippi, the power given Congress “to regulate Comme rce . . . 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 wo uld 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 affa irs of other Indian groups. Neither the fact that the Choctaws in Mississi ppi 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 b een continuous, destroys the federal power to deal with them. Id. at 652-53 (bracket s and footnot e omitted); see also Indian Country, U.S.A. , 829 F.2d at 974 (“[T]he past failure to challenge Okla homa’s jurisdiction over Creek Nation lands, or to treat them as reservation lands, doe s not divest the federal government of its exclusive authority over relations with the Cr eek Nation or negate Congress’ intent to protect Creek tribal lands and Creek govern ance with respect to those lands.”). Indian country.” Id. at 1061. We rejected the argum ent and affirmed the defendant’s federal conviction. Id. at 1061-63, 1067.- 123 - Oklahoma’s exercise of jurisdiction within the Creek Reservation is not a proper basis for us to conclude that Congr ess disestablished the Reservation. 5) Creek Nation The Creek Nation has maintained a signifi cant and continuous presence within the Reservation. The tribal government, whic h was never extinguished, saw many of its powers restored when Cong ress 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 Constitutio n, which was approve d by the United States Department of the Interior.” Id. at 970. Today, the tribal gove rnment maintains a capital complex in Okmulgee and provides extens ive services within the Creek Nation’s borders. See Creek Nation Br., App’x D (maps reflecting Trib e’s capital complex and locations of community centers, medical centers, and em ergency response teams throughout the Reservation). The Creek Nation further contends it applies its traffic laws throughout the territory and supports traditional churches an d ceremonial grounds on the Reservation. Id. at 37. 70 Mr. Murphy also observes the Cr eek Nation has entered into deputation agreements for law enforcem ent services “within the ex terior boundaries of the Muscogee (Creek) Nation.” Aplt. Br., Attach. F. The Creek Nation’s continued presence and activity provides a much stronger ca se for reservation continuation than in Parker ,

70 See also The Muscogee (Creek) Nation, ht tp://www.mcn-nsn.gov/services/# (providing overview of tribal services including, among others, language programs, environmental services, family violence pr evention programs, historical and cultural preservation programs, senior services, and education a nd transportation programs) [https://perma.cc/Q82C-ZVZY].- 124 - where the Supreme Court held a reservation was intact notwithstanding the fact that “the Tribe was almost entirely abse nt from the disputed territory for more than 120 years.” 136 S. Ct. at 1081. The value of this eviden ce 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. Re p. No. 59-496, at 10 (1906)). In 2000, the year Mr. Murphy was conv icted in McIntosh County, 72 the census determ ined 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-thr ee materials in the form of reports and legislative history criticizing the Okla homa 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, how ever, cover more than McIntosh County.

73 See United States Census Bureau, “A merican FactFinder,” Profile of General Demographic Characteristics: 2000 [https://perma.cc/LH7M-32WX].- 125 - 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 territo ry.” 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 conti nue to live within th e 1866 borders of the Reservation. The demographic evidence does not over come 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” earlie r 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 de mographic 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 ta ke 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 compe lling evidence of a congressional intention to diminish Indian lands,” courts must accord “traditional solicitude” to Indian tribes and conclude “the old reservation bounda ries” remain intact.- 126 - Solem , 465 U.S. at 472. Such is the case here. None of the step-three evidence allows us to conclude that Congress disest ablished the Creek Reservation.
IV. CONCLUSION Applying Solem , we conclude Congress has not disestablished the Creek Reservation. Consequently, th e crime in this case occurred in Indian country as defined in 18 U.S.C. § 1151(a). Because Mr. Mur phy is an Indian and because the crime occurred in Indian country, the federal court has exclusive jurisdicti on. 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 ju risdiction, and the district court erred by concluding the OCCA’s decision wa s 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 co rpus 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 Re servation remain with Congress.