Murphy v. Royal (875 F.3d 896, 2017)

ORDER

These matters are before the court on the respondent’s Petition for Panel Rehearing or Rehearing En Banc. We also have responses from the petitioner and the United Keetoowah Band of Cherokee Indians, in addition to amici curiae briefs from the United States and The Muscogee (Creek) Nation. We also have several motions pending seeking to file additional am-ici curiae briefs.

Upon consideration, the request for panel rehearing is denied by the original panel members. For clarification, however, the panel has decided, sua sponte, to amend the original decision at pages 49-50. A copy of the amended decision is attached to this order, and the clerk is directed to reissue the opinion nunc pro tunc to the original filing date of August 8, 2017. In addition, Chief Judge Tymkovich has filed a concurrence to the denial of rehearing, and that concurrence is likewise attached.

The Petition, the responses, the amici filings and the amended opinion were also circulated to all the judges of the court in regular active service who are not recused. See Fed. R. App. P. 35(a). As no judge on the original panel or the en banc court requested that a poll be called the request for en banc review is denied.

Finally, the motions filed by the Oklahoma Independent Petroleum Association, the Oklahoma Municipal League, and the Oklahoma Oil and Gas Association, et al., seeking leave to file amici curiae briefs are granted. Those briefs will be shown filed as of the date of this order.

MATHESON, Circuit Judge.

TABLE OF CONTENTS

I. BACKGROUND... 904

A. Factual History.. .904

B. Procedural History.. .905

1. Trial... 905

2. Direct appeal... 905

3. First Application for State Post-Conviction Relief.. .906

4. Filing of First Application for Federal Habeas Relief.. .906

5. Second Application for State Post-Conviction Relief... 907

a. Evidentiary hearing.. .907

b. Appeal to the OCCA...908

c.. Atkins trial and appeal.. .909

6. Federal District Court Proceedings on First Federal Habeas Application,. .910

7. First Appeal to the Tenth Circuit ...910

8. Second Application for Federal Habe-as Relief,. .910

9. This Consolidated Appeal... 911

II: LEGAL BACKGROUND... 911

A. Standard of Review... 911

1. The Parties’ Dispute... 914

2. The AEDPA Standard... 912

a. Overview.. .912

b. The “contrary to” clause... 913

B. Indian Country Jurisdiction... 913

1. Reservations.. .914

2. The Major Crimes Act.. .915

3. Indian Country... 916

4. Reservation Disestablishment and Diminishment.. .917

a. Presumption against disestablishment and diminishment.. .918

b. The policy of allotment... 918

c. Solem factors... 920

III. DISCUSSION... 921

A. Clearly Established Federal Law.. .921

1. Solem—Clearly Established Law in 2005...921

2. The State’s Arguments... 923

B. The OCCA Decision—Contrary to Clearly Established Federal Law.. .923

1. The OCCA’s Merits Decision., .923

2. The OCCA’s Decision Was Contrary to Solem.. .926-

a. No citation to Solem...926

b. Failure to apply Solem.. .926

c. . The State’s arguments... 927 .

C. Exclusive Federal Jurisdiction... 928

1. Additional Legal Background... 930

a. Supreme, Court authority... 930

b. Tenth Circuit authority.. .931

2. Additional Factual , Background— Creek Nation History... 932

a. Original homeland and forced relocation.., 932

b. Nineteenth century diminishment...933

c. 1867 Constitution and government,,. 933

d. Early congressional regulation of modern-day Oklahoma.. .933

e. The push for allotment... 934

f. Allotment and aftermath... 934

g. Creation of Oklahoma... 935

h. Away from allotment...936

i. Public Law 280... 936

j. A new Creek Constitution.., 937

k. Our decision in Indian Country, U.S.A... .937

3. Applying Solem.. .937

a. Step One: Statutory Text.. .938

i. The statutes., .939

1) Act of March 3, 1893, ch. 209, 27 Stat, 612 (“1893 Act”)... 939

2) Act of June 10, 1896, ch. 398, 29 Stat. 321 (“1896 Act”)... 940

3) Act of June 7, 1897, ch. 3, 30 .Stat. 62 (“1897Act”)...940

4) “Curtis Act,” ch. 517, 30 Stat. 495 (June 28, 1898)... 941

5) “Original Allotment Agreement,” ch. 676, 31 Stat. 861 (March 1, 1901)...941

a) Allotment... 941

b) Town sites... 943

c) Lands reserved for tribal . purposes ...943

d) Future governance.. .943 •

6) “Supplemental Allotment Agreement,” ch. 1323, 32 Stat. 500 (June 30,' 1902)... 944

7) “Five Tribes Act,” ch. 1876, 34 Stat. 137, April 26,1906... 945

8) “Oklahoma Enabling Act,” ch. 3335, 34 Stat. 267 (June 16,1906).. .947

ii. Analysis... 948

1) No hallmarks of disestablishment' or diminishment., .948

2) Signs Congress continued to recognize the Reservation... 951

3) The State’s title and governance arguments ...951

a) Title...952

b) Governance.. .953

b. Step Two: Contemporary Historical Evidence... 954

i. The State’s evidence.. .954 ^

1) 1892 Senate debat.. .955

2) 1894 Senate committee report,...956

3) Other sources... 956

ii. Mr. Murphy’s and the Creek Nation’s evidence.. .957

1)1894 Dawes Commission records, . .957

2) 1895 Dawes letter.-. .957 •

3) 1900 Attorney General opinion... 957

4) Post-allotment evidence... 958

iii. Analysis .t.. 959

c. Step Three: Later History.. .-960

i. Treatment of the area... 960

1) Congress... 960

2) Executive.. .-961

3) Federal courts... 962

4) Oklahoma.. .963

5), Creek Nation.,. 964

ii. Demographics.-. .965

iii. Step-three concluding comment.. .966

IV! CONCLUSION... 966

Patrick Dwayne Murphy asserts he was tried in the wrong court. He challenges the jurisdiction of the Oklahoma state court in which he was convicted of murder and sentenced to death. He contends he should have been tried in federal court because he is an Indian and the offense occurred in Indian country. We agree and remand to the district court to issue a writ of habeas corpus vacating his conviction and sentence.

The question of whether the state court had jurisdiction is straightforward but reaching an answer is not. We must navigate the law of (1) federal habeas corpus review of state court decisions, (2) Indian country jurisdiction generally, (3) Indian reservations specifically, and (4) how a res-érvation can be disestablished or diminished. Our discussion on each of these topics reaches the following conclusions.

• First, we assume that- a federal habeas court must give deference to a' state court’s determination that it had jurisdiction.-Nonetheless, in this case, the Oklahoma court applied a rule that was contrary to clearly established Supreme Court law. We must apply the correct law.

Second, when an Indian is charged with committing a murder in Indian country, he or she must be tried in federal court. Mr. Murphy is a member of the Muscogee (Creek) Nation. Because the homicide charged against him was committed in Indian country, the Oklahoma state courts lacked jurisdiction to try him.

Third, Congress has defined Indian country broadly to include three categories of areas: (a) Indian reservations, (b) dependent Indian communities, and (c) Indian allotments. See 18 U.S.C. § 1151. The reservation clause concerns us here. All land within the borders of an Indian reservation—regardless of whether the tribe, individual Indians, or non-Indians hold title to a given tract of land—is Indian country unless Congress has disestablished the reservation or diminished its borders.

Fourth, only Congress may disestablish or diminish an Indian reservation. Applying the Supreme Court’s test to determine whether Congress has done so as to the Creek Reservation, we conclude it has not.

Mr. Murphy and the State agree that the offense in this case occurred within the Creek Reservation if Congress has not disestablished it. We conclude the Reservation remains intact and therefore the crime was committed in Indian country. Mr. Murphy, a Creek citizen, should have been charged and tried in federal court.

I. BACKGROUND

We begin with the facts of the crime as presented by the Oklahoma Court of Criminal Appeals (“OCCA”). We then discuss the procedural journey Mr. Murphy’s case has traveled.

A. Factual History

In August 1999, Mr. Murphy lived with Patsy Jacobs. Murphy v. State, 47 P.3d 876, 879 (Okla. Crim. App. 2002). Ms. Jacobs was previously in a relationship with the victim in this case, George Jacobs, and had a child with him, George, Jr. Id. at 879-80. Mr. Murphy had .an argument with her about Mr. Jacobs and said he was “going to get” Mr. Jacobs and his family. Id. at 879.

On August 28, 1999, Mr. Jacobs spent the day drinking with his cousin, Mark Sumka. Id. Around 9:30 p.m., Mr. Sumka was driving to a bar in Henryetta, Oklahoma, with Mr. Jacobs passed out in the back seat. Id. Mr. Murphy was driving on the same road in the opposite direction with two passengers—Billy Long and Kevin King. Id. After the cars passed each other, they stopped. Id. Mr. Murphy backed up and told Mr. Sumka to turn off the car, but Mr. Sumka drove off. Id.

Mr. Murphy and his passengers pursued and forced Mr. Sumka off Vernon Road, which runs through an area that is “remarkably rural [and] heavily treed ... without any sort of improvement ... except perhaps a rickety barbed wire fence.” Murphy v. State, 124 P.3d 1198, 1206 (Okla. Crim. App. 2005); see also 47 P.3d at 879.

Mr. Murphy exited the car and confronted Mr. Sumka. 47 P.3d at 879. Mr. Long and Mr. King began hitting Mr. Jacobs. Id. at 880. Mr. Murphy approached Mr. Jacobs, trading places with Mr. Long, who went over and hit Mr. Sumka. Id. at 880. Mr. Sumka briefly ran off but came back about five minutes later. Id

When he did, he saw Mr. Murphy throw a folding knife into the woods, and he saw Mr. Jacobs lying in a ditch along the road, barely breathing. Id. Mr. Murphy and his companions threatened to kill Mr. Sumka and his family if he said anything, and Mr. King struck Mr. Sumka in the jaw. Id

Following Mr. Murphy’s instructions, Mr. Sumka left the scene with the other men. Id. During the car ride away, they told Mr. Sumka they had cut Mr. Jacobs’s throat and chest and had severed his genitals. Id. The group later went to Mr. King’s home, where Mr. Jacobs’s son, George, Jr., was staying, in an apparent attempt to kill him. Id. Mr. King’s mother intervened and “thwarted [their] plan.” Id. Mr. King went inside, and the rest of the group left. Id.

A passerby found Mr. Jacobs in the ditch with his face bloodied and slashes across his chest and stomach. Id. His genitals had been cut off and his throat slit. Id. According to a state criminalist, Mr. Jacobs had been dragged off the road after his genitals were severed. Id. His neck and chest had been cut on the side of the road, where he bled to death over the course of four to twelve minutes, though it may have taken longer. Id.

After Mr. Murphy returned home and confessed to Ms. Jacobs, he was arrested. Id. The State of Oklahoma charged him with Mr. Jacobs’s murder and sought the death penalty.

B. Procedural History

A jury convicted Mr. Murphy of murder in Oklahoma state court and imposed the death penalty. His appeal and post-conviction proceedings have since moved through the Oklahoma and federal courts as recounted below.

Although the overall history of Mr. Murphy’s case is complex, the history of the jurisdictional claim we resolve here can be succinctly summarized. After Mr. Murphy’s conviction and death sentence were affirmed on direct appeal, he applied for state post-conviction relief in 2004, arguing the Oklahoma state courts had lacked jurisdiction to try him. The OCCA ordered an evidentiary hearing. Following the hearing, the state district court concluded Oklahoma’s jurisdiction was proper because the crime did not occur in Indian country. The OCCA affirmed that conclusion in 2005. Mr. Murphy then sought federal habeas relief, but the federal district court denied relief in 2007. Mr. Murphy now appeals.

In the interest of thoroughness, and because Mr. Murphy’s case has until now proceeded in a disjointed fashion, we provide a complete procedural history below.

1. Trial

In 2000, a jury in McIntosh County, Oklahoma, convicted Mr. Murphy of first degree murder under Okla. Stat. tit. 21 § 701.7(A) (1999). In the penalty phase, the jury found aggravating circumstances supported the death penalty. Murphy, 47 P.3d at 879. In accordance with the jury’s verdict, the trial court imposed a death sentence. Id

2. Direct appeal

Mr. Murphy raised a variety of trial issues in a direct appeal to the OCCA. On May 22, 2002, the OCCA affirmed his conviction. Id. at 888. The court also performed a statutorily mandated sentencing review in which the court considered the aggravating circumstances in light of the mitigating evidence, including Mr. Murphy’s “mild mental retardation,” and concluded his death sentence was “factually substantiated and appropriate.” Id. at 887-88.

3. First Application for State Post-Conviction Relief

On February 7, 2002, while his direct appeal was pending in the OCCA, Mr. Murphy filed his first application for state post-conviction relief. See Murphy v. State, 54 P.3d 556, 560 (Okla. Crim. App. 2002). He asked that his application be held in abeyance, id. at 566, uiitil the Supreme Court decided its then-pending case of Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), which addressed whether the Eighth Amendment prohibits the execution of “mentally retarded person's,” id. at 306, 122 S.Ct. 2242,

On June 20, 2002, about a month after the OCCA affirmed on direct appeal, the Supreme Court held in Atkins that the Eighth Amendment “places a substantive restriction on the State’s power to take the life of a mentally retarded offender.” Id. at 321, 122 S.Ct. 2242 (quotations omitted), Atkins “[left] to the States the task of developing appropriate ways to enforce the constitutional restriction.” Id. at 317, 122 S.Ct. 2242 (brackets and quotations omitted).

On September 4, 2002, .the OCCA denied relief on all of the'-issues Mr. Murphy had raised in his first application for state post-conviction relief except his Atkins claim. 54 P.3d at 570. The OCCA used Mr. Murphy’s case to adopt new, post-Atkins procedures to shield “mentally retarded” persons from. execution. See id. at 567-69. These procedures, the OCCA explained, would govern “until such time” as the Oklahoma legislature enacted an alternative framework. Id. at 568. The OCCA remanded to the state district court “for an evidentiary hearing on the sole issue of [Mr. Murphy’s] claim of mental retardation in accordance with” the OCCA’s newly announced procedures. Id. at 570.

On remand, the state district court concluded Mr. Murphy “had not raised sufficient evidence to create a fact question on the issue of mental retardation.” Murphy v. State, 66 P.3d 456, 458 (Okla. Crim. App. 2003). On March 21, 2003, the OCCA ruled this conclusion was “not clearly erroneous” and affirmed Mr. Murphy’s death sentence. Id. at 458, 461.

4. Filing of First Application for Federal Habeas Relief

On March 5, 2004, Mr. Murphy.filed a federal habeas application under 28 U.S.C. § 2254 asserting 13 grounds for relief.

On August 30, 2004, the U.S. District Court for the Eastern District of Oklahoma concluded Mr. Murphy’s application contained some claims that had not been exhausted in Oklahoma state court. The federal district court directed Mr. Murphy to. drop his unexhausted claims,

On September 10, 2004, Mr. Murphy did so by filing an amended application containing eight claims, all of which were exhausted. His amended application remained pending in- the federal district court while he pursued additional relief in state court.

5. Second Application for State Post-Conviction Relief

On March 29, 2004—shortly after he filed his original federal habeas application—Mr. Murphy returned to state court and filed a second application for post-conviction relief to exhaust claims he had dropped from his federal habeas application. His second application for state post-conviction relief alleged:

1. Oklahoma lacked jurisdiction because the Major Crimes Act gives the federal government exclusive jurisdiction to prosecute murders committed by Indians in Indian country.

2. The OCCA’s earlier denial of a jury trial on the issue of his “mental retardation” had violated his constitutional rights.

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

See Murphy, 124 P.3d at 1200, 1208-09. The OCCA ordered an evidentiary hearing on the jurisdictional claim. Id. at 1199.

a. Evidentiary hearing

The state district court held a one-day evidentiary hearing. Id. at 1201. Mr. Murphy argued Oklahoma lacked jurisdiction because the crime occurred in Indian country and 18 U.S.C. § 1153 provides for exclusive federal jurisdiction over murders committed by Indians in Indian country. The parties agreed that Mr. Murphy and Mr. Jacobs, both members of the Muscogee (Creek) Nation, were Indians, but they disputed whether the crime occurred in Indian country, a term defined in 18 U.S.C. § 1151:

[T]he term “Indian country” ,.. means

(a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, •

(b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and

(c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.

18 U.S.C. § 1151 (paragraph breaks added). An area qualifies as Indian country if it fits within any of these three categories. Mr. Murphy argued the crime occurred in Indian country under all three categories.

In December 2004, the state district court concluded state jurisdiction was proper because the crime had occurred on state land. See 124 P.3d at 1200, 1202. The court, however, addressed only one of Mr. Murphy’s three theories. Id. at 1207. It concluded the land was not an Indian allotment under § 1151(c), but it failed to address whether the location was (a) part of the Creek Reservation or (b) part of a dependent Indian community. See id. (noting the state 'district court failed to address these questions although the OCCA had “clearly asked” it to do so). Although the state district court -viewed these matters as outside the scope of the evidentiary hearing, it allowed Mr. Murphy to make an offer of proof on his other two theories. Id The court ultimately ruled the State’s exercise of criminal jurisdiction was proper and denied relief. Id. at 1202.

b. Appeal to the OCCA

Mr. Murphy appealed to the OCCA. On December 7, 2005, the OCCA denied relief on his jurisdictional and Eighth Amendment claims but granted limited relief on the Atkins claim. See id. at 1209.

On the jurisdictional issue, the OCCA found the record did not support some of the state district court’s determinations, but it affirmed the ultimate determination that Oklahoma’s jurisdiction was proper. Id. at 1201-08. The OCCA accepted the state district court’s findings regarding where the crime unfolded, but it rejected the court’s conclusion that Oklahoma owned the road and the ditch abutting it. Id. at 1202. Rather, the OCCA concluded, Oklahoma’s “interest in the area in question is in the nature of an easement or right-of way.” Id. The Creek Nation had long owned the land in question when, under a statute enacted in 1902, Oklahoma received the right to build a public highway. Id. at 1203. Tracing the history of the specific tract where the crime occurred, the OCCA concluded it had passed in the early twentieth century from the Creek Nation to Lizzie Smith, a member of the Creek Nation, and that all interest in the land—except for a restricted 1/12 mineral interest—had since been conveyed to non-Indians. See id. at 1204-06. The OCCA concluded this Indian interest was insufficient to qualify the land as an Indian allotment under § 1151(c): “A fractional interest in an unobservable mineral interest is insufficient contact with the situs in question to deprive the State of Oklahoma of criminal jurisdiction.” Id. at 1206.

The OCCA criticized the state district court for not addressing whether the crime was committed within the Creek Reservation or within a dependent Indian community, but it concluded the error was harmless because Mr. Murphy had been afforded a chance “to make an extended offer of proof.” Id. at 1207. The OCCA said that the evidence, had it been admitted, was “insufficient” to show “that the tract in question qualifies as a reservation or dependent Indian community.” Id.

With respect to the reservation theory, the OCCA acknowledged our decision in Indian Country, U.S.A., Inc. v. Oklahoma ex rel. Oklahoma Tax Commission, 829 F.2d 967 (10th Cir. 1987), cert. denied, 487 U.S. 1218, 108 S.Ct. 2870, 101 L.Ed.2d 906 (1988), where we recognized the Creek Reservation still exists but reserved the question whether its 1866 boundaries remain intact, 829 F.2d at 975-76. See 124 P.3d at 1207-08 (discussing Indian Country, U.S.A). The OCCA stated: “If the federal courts remain undecided on this particular issue, we refuse to step in and make such a finding here.” Id. at 1208.

As for the two non-jurisdictional issues Mr. Murphy. raised in his second post-conviction application, the OCCA granted limited relief on one and denied relief on the other. First, it reversed course on the Atkins issue and found Mr. Murphy had provided sufficient evidence to create a factual question for a jury on his “mental retardation claim.” Id. It therefore ordered the case remanded. Id. Second, the OCCA ruled Mr. Murphy had waived his Eighth Amendment challenge to Oklahoma’s lethal injection protocol by failing to raise it earlier. Id. at 1209.

In summary, the OCCA rejected the jurisdictional challenge and the Eighth Amendment claim, but it remanded for a jury trial on Mr. Murphy’s Atkins claim.

c. Atkins trial and appeal

Following a September 2009 trial in the state district court, a jury in McIntosh County rejected Mr. Murphy’s claim of “mental retardation.” Murphy v. State, 281 P.3d 1283, 1287 (Okla. Crim. App. 2012) (discussing jury trial). But the trial judge declared a mistrial based on an error of state law and reset the case for a new trial. Id.

Before the re-trial, the State moved to terminate further proceedings. A state statute had supplanted the OGCA’s Atkins procedures and provided that no defendant who received an intelligence quotient, (“I.Q.”) score of 76 or above could “be considered mentally retarded.” Okla. Stat. tit. 21 § 701.10b(C); see also 281 P.3d at 1287-89. Because Mr. Murphy had received an I.Q, score of 80 on one test and 82 on another, the trial court granted the State’s motion and terminated proceedings on January 27, 2011, 281 P.3d at 1288,

Mr. Murphy appealed and raised four propositions of error to the OCCA. Id. at 1287. On April 5, 2012, the OCCA ruled the district court had properly relied on the new state law. Id. at 1289. The OCCA rejected all of Mr. Murphy’s claims, thus concluding proceedings on the second post-conviction application. Id. at 1294.

6. Federal District Court Prpceedings on First Federal Habeas Application

On December 28, 2005, after the OCCA rejected his jurisdictional and Eighth Amendment claims but before the conclusion of the Atkins proceedings, Mr. Murphy moved to amend his federal, habeas application. The district court granted the motion and allowed Mr. Murphy to add two newly exhausted claims: (1) the challenge to Oklahoma’s jurisdiction, and (2) the Eighth Amendment lethal-injection challenge. These two claims were added to Mr. Murphy’s eight previously exhausted federal claims, which were still pending.

On August 1, 2007, the district court entered an opinion and order denying all ten claims in Mr. Murphy’s habeas application. Murphy v. Sirmons, 497 F.Supp.2d 1257, 1294-95 (E.D. Okla. 2007).

On the jurisdictional claim, Mr. Murphy argued the crime had occurred in Indian country under just two theories: (1) the land was part of the Creek Reservation under § 1151(a) and (2) the land was an Indian allotment under § 1151(c). Id. at 1288. Applying the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254(d), the district court ruled that the OCCA’s decisions against Mr. Murphy on these theories were neither contrary to nor an unreasonable application of clearly established federal law. See 497 F.Supp.2d at 1286-92.

The district court rejected Mr. Murphy’s other claims but granted him three certificates of appealability (“COA's”) 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.

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

Mr. Murphy appealed to tips court. On November 16, 2007, we abated the appeal to await resolution of Mr. Murphy’s then-pending Atkins claim in Oklahoma state court.

8. Second Application for Federal Ha-beas Relief

On April 26, 2012, following the OCCA’s final denial of his Atkins claim, Mr. Murphy filed a second § 2254 application in the Eastern District of Oklahoma that challenged the OCCA’s resolution of the Atkins issue. The district court denied relief. Murphy v. Trammell, No. CIV-12-191-RAW-KEW, 2015 WL 2094548, at *13 (E.D. Okla. May 5, 2015) (unpublished).

9. This Consolidated Appeal

Mr. Murphy sought to appeal from the district court’s denial of relief on his second § 2254 habeas application. We consolidated that appeal (No. 15-7041) with his appeal from the denial of his first habeas application (No. 07-7068) to form this case.

Mr. Murphy raises eight issues. Because he obtained COAs for each one, our jurisdiction is proper under 28 U.S.C. § 2253(a), (c)(1)(A).

As to one of the issues—whether Oklahoma or the federal government had jurisdiction over the murder case—we granted the motion of the Muscogee (Creek) Nation and the Seminole Nation of Oklahoma to file a joint amici brief. We likewise permitted the United Keetoowah Band of Cherokee Indians in Oklahoma to file an amicus brief. The Tribes also participated at oral argument.

II. LEGAL BACKGROUND

We conclude the crime occurred on the Creek Reservation and therefore the Oklahoma courts lacked jurisdiction. This section addresses the law applicable to the jurisdictional issue. We begin with (A) our standard of review and then address (B) the. substantive law of Indian country jurisdiction.

A. Standard of Review

The parties disagree over the, standard of review that should apply to Mr. Murphy’s jurisdictional claim. The State contends AEDPA’s deferential standard should apply. Mr. Murphy disagrees and argues we should review'his claim de novo. We begin by discussing this disagreement, but we choose not to resolve it because Mr. Murphy prevails even under AEDPA review. Because we assume the AEDPA standard applies, we then go on to describe it.

1. The Parties’ Dispute

As we discuss in greater detail below, AEDPA' generally requires federal habeas courts to defer to state court decisions. Mr. Murphy argues AEDPA does not apply when, as here, a state court denies a defendant’s challenge to the state court’s subject matter jurisdiction. AEDPA deference,- he maintains, “presupposes” the state court had jurisdiction to decide a given claim in the first place. Aplt. Br. at 26. Because the question of Indian country jurisdiction implicates tribal and federal sovereignty interests, he also contends that federal courts, unconstrained by AEDPA, must make the final determination over the jurisdictional issue. And he argues that applying AEDPA to jurisdictional claims would pose separation-of-powers and other constitutional probléms.

The State responds that nothing in AEDPA says subject matter jurisdiction claims should be reviewed de novo. It notes Mr. Murphy has failed to cite a case in support of his view that AEDPA does not apply to jurisdictional questions. It argues Mr. Murphy has waived any argument against AEDPA’s application because he supported the district court’s application of AEDPA below. The State also disputes his constitutional arguments.

We need not decide whether this issue is waivable, whether Mr. Murphy has waived it here, or even whether AEDPA is the appropriate standard. We choose to assume without deciding that AEDPA applies.

We took this approach in Magnan v. Trammell, 719 F.3d 1159 (10th Cir. 2013). Both sides agree Magnan left open the question of whether AEDPA applies to Indian country jurisdictional claims. Mag-nan concerned an Indian defendant whom an Oklahoma state court had sentenced to death. Id. at 1160-61. The defendant challenged the state court’s jurisdiction. Id. at 1163. We assumed without deciding that AEDPA applied and concluded that, even under AEDPA’s deferential standard, the OCCA had erred in concluding Oklahoma had jurisdiction over the case. Id. at 1160-61, 1164. We held the crime occurred in Indian country, making jurisdiction exclusively federal. We ordered Mr. Magnan released from state custody without resolving the “difficult question” of whether AEDPA constrains federal court review of a state court’s jurisdictional ruling regarding Indian country. Id. at 1164, 1176-77. As in Magnan, we can assume without deciding that AEDPA applies because Mr. Murphy is entitled to relief even under that formidable standard of review.

2. The AEDPA Standard

We first discuss AEDPA’s general framework and then focus on the statute’s “contrary to” clause because that provision guides our analysis.

a. Overview

“AEDPA erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court.” Burt v. Titlow, — U.S. —, 134 S.Ct. 10, 16, 187 L.Ed.2d 348 (2013). When a state court adjudicates a claim on the merits, AEDPA prohibits federal courts from granting habeas relief unless the state court’s adjudication of the claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d)(1)-(2). “If this standard is difficult to meet, that is because it was meant to be.” Harrington v. Richter, 562 U.S. 86, 102, 131 S.Ct, 770, 178 L.Ed.2d 624 (2011).

Section 2254(d) provides three ways to overcome AEDPA deference. Two appear in § 2254(d)(1), which provides that a state prisoner can qualify for habeas relief by showing a state court decision was (1) “contrary to” or (2) “involved an unreasonable application of’ federal law that was clearly established by the Supreme Court. 28 U.S.C. § 2254(d)(1); see Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002) (explaining the “contrary to” and “unreasonable application” clauses each carry “independent meaning”). The third way, in § 2254(d)(2), requires a state prisoner to show that a state court decision was based on an unreasonable factual determination. See 28 U.S.C. § 2254(d)(2). Thus, “[e]ach of AEDPA’s three prongs—contrary to clearly established federal law, unreasonable application of clearly established federal law, and unreasonable determination of the facts—presents an independent inquiry.” Budder v. Addison, 851 F.3d 1047, 1051 (10th Cir. 2017).

Mr. Murphy makes arguments based on all three, but because we need apply only § 2254(d)(1)’s “contrary to” provision to resolve this case, we restrict our discussion to that clause.

b. The “contrary to” clause

When a state court adjudicates a prisoner’s federal claim on the merits, review under § 2254(d)(l)’s “contrary to” clause proceeds in three steps.

First, we must decide whether there is clearly established federal law that applies to the claim. See House v. Hatch, 527 F.3d 1010, 1015 (10th Cir. 2008) (“Whether the law is clearly established is the threshold question under § 2254(d)(1)”). In discerning what law is “clearly established,” we must look only to the decisions of the Supreme Court, see Parker y. Matthews, 567 U.S. 37, 48-49, 132 S.Ct. 2148, 183 L.Edüd 32 (2012) (per curiam) (explaining circuit precedent “cannot form the basis for habeas relief under AEDPA”), and we must “measure state-court decisions against [the Supreme] Court’s precedents as of the time the state court renders its decision,” Greene v. Fisher, 565 U.S. 34, 38, 132 S.Ct. 38, 181 L.Edüd 336 (2011) (emphasis and quotations omitted). Within this set of cases, “ ‘clearly established Federal law’ for purposes of § 2254(d)(1) includes only the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions.” White v, Woodall, — U.S. -, 134 S.Ct. 1697, 1702,188 L.Edüd 698 (2014) (brackets and quotations omitted).

Second, if we can identify clearly established law, we then must assess whether the state court’s decision was “contrary to” that law. See 28 U.S.C. § 2254(d)(1); see also House, 527 F.3d at 1018. “The word ‘contrary’ is commonly understood to mean ‘diametrically different,’ ‘opposite in' character or nature,’ or ‘mutually opposed.’” Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (controlling opinion of O’Connor, J.) (quoting Webster’s Third New International Dictionary 495 (1976)). A state court, decision violates the “contrary to” clause if it “applies a rule that contradicts the governing law. set forth in [the Supreme Court’s] cases.” Id. If the state court identifies and applies “the correct legal rule,” its decision will not be “contrary to” federal law, but the state court’s application of the correct rule can still be evaluated under § 2254(d)(1)’s “unreasonable application” clause. Id. at 406, 120 S.Ct. 1495.

Third, if the state court rendered a , decision that was “contrary to” clearly established Supreme Court precedent by applying the wrong legal test, we do not necessarily grant relief; rather, we review the claim applying the correct law. Put differently, “it is ... a necessary prerequisite to federal habeas relief that a prisoner satisfy the AEDPA standard of review,” but habeas relief does not “automatically issue if a prisoner satisfies the AEDPA standard.” Horn v. Banks, 536 U.S. 266, 272, 122 S.Ct. 2147, 153 L.Ed.2d 301 (2002). By showing the state court decision was “contrary to” clearly established federal law, the prisoner surmounts-AEDPA, and the federal habeas court “must then resolve the claim without the deference AEDPA otherwise requires.” Panetti v. Quarterman, 551 U.S. 930, 953, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007); see also Williams, 529 U.S. at 406, 120 S.Ct. 1495 (explaining-that if “the state-court decision falls within” the “contrary to” clause, “a federal court will be unconstrained by § 2254(d)(1)”); Milton v. Miller, 744 F.3d 660, 670-71 (10th Cir. 2014) (concluding OCCA’s decision was “contrary to” clearly established federal standard and reviewing claim de novo).

As previously mentioned, we choose to assume that AEDPA supplies our standard of review and now turn to the substantive law governing Indian country jurisdiction.

B. Indian Country Jurisdiction

Understanding the Indian country-jurisdiction issue in this case requires background knowledge about (1) reservations, (2) the Major Crimes Act, (3) the meaning of “Indian country,” and (4) how a reservation can be disestablished or diminished. We address these topics-below.

1. Reservátions

The federal government began creating Indian reservations during the nineteenth century. See Felix S. Cohen’s Handbook of Federal Indian Law 60 (Nell Jessup Newton ed., 2012) [hereinafter “Cohen”]. “During the 1850s, the modern meaning of Indian reservation emerged, referring to land set aside under federal protection for the residence or use of tribal Indians, regardless of origin.” Id. at 190-91. “[T]he term [‘Indian reservation’] has come to describe federally-protected Indian tribal lands, meaning those lands which Congress has set apart for tribal and federal jurisdiction.” Indian Country, U.S.A., 829 F.2d at 973 (citation and quotations omitted). As we explain.further below, the term “Indian country” includes not only reservations but other lands as well.

2. The Major Crimes Act

The Major Crimes Act is the jurisdictional statute at the'heart of this case. It applies to enumerated crimes committed by Indians in “Indian country.” When the Major Crimes Act applies, jurisdiction is exclusively federal. See Negonsott v. Samuels, 507 U.S. 99, 103, 113 S.Ct. 1119, 122 L.Ed.2d 457 (1993) (“[Federal jurisdiction over the offenses covered by the Indian Major Crimes Act is exclusive of state jurisdiction,” (quotations omitted)); United States v. Sands, 968 F.2d 1058, 1062 (10th Cir. 1992) (“The State of Oklahoma does not have jurisdiction over a criminal offense committed by one Creek Indian against another in Indian country,”); Cravatt v. State, 825 P.2d 277, 279 (Okla. Crim. App. 1992) (“[Q]uite simply the State of Oklahoma does not have jurisdiction over crimes committed by or against an Indian in Indian Country.” (quotations omitted)). “The policy of leaving Indians free from state jurisdiction and control is deeply rooted in the Nation’s history.” Rice v. Olson, 324 U.S. 786, 789, 65 S.Ct. 989, 89 L.Ed. 1367 (1945) (citing Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 8 L.Ed. 483 (1832)).

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

Any Indian who commits against the person-or property of another Indian or other person any • of the following offenses, namely, murder .,. within, the Indian country, shall be subject to the same law and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States,

18 U.S.C. § 1153(a). If the Major Crimes Act applies to an Indian defendant, he or she “shall be tried in the same courts and in the same manner as are all other persons committing such offense within the exclusive- jurisdiction of the United States.” 18 U.S.C. § 3242.

The parties agree that Mr.' Murphy and Mr. Jacobs, both members of the Creek Nation, qualify as Indians for purposes of the Major Crimes Act. See 124 P.3d at 1200; see also Aplt. Br. at 20; Aplee. Br. at 11. Murder is among, the Act’s, enumerated offenses. See 18 U.S.C. § 1153(a). The dispute centers on whether the crime occurred, in Indian country, in particular on the Creek Reservation. Before we discuss the meaning of Indian country, we provide the following history of the Major Crimes Act because it aids our analysis. ; ,, •

In Ex parte Crow Dog, 109 U.S. 556, 3 S.Ct. 396, 27 L.Ed. 1030 (1883), the Supreme Court held that federal and territorial courts lacked jurisdiction to try an Indian for the murder of another Indian committed in Indian country. Id. at 572, 3 S.Ct. 396. In response, Congress passed the Major Crimes Act in 1885. See Act of Mar. 3, 1885, ch. 341, § 9, 23 Stat. 362, 385; Keeble v. United States, 412 U.S. 205, 209-10, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973) (discussing Ex parte Crow Dog and legislative response). As originally enacted, the Major Crimes Act provided:

[A]ll Indians, committing against the person or property of another Indian or other person any of the following crimes, namely, murder ... within any Territory of the United States, and either within or without an Indian reservation, shall be subject therefor to the laws of such Territory relating to said crimes ... ; and all such Indians committing any of the above crimes against the person or property of another Indian or other person within the boundaries of any State of the United States, and within the limits of any Indian reservation, shall be subject to the same laws, tried in the same courts and in the same manner, and subject to the same penalties as are all other persons committing any of the above crimes within the exclusive jurisdiction of the United States.

§ 9, 23 Stat. at 385. Thus, unlike the current law, which applies in “Indian country,” the original Act applied to crimes committed in federal territories and “within the boundaries of any State of the United States, and within the limits of any Indian reservation.” Id. (emphasis added); see also United States v. Kagama, 118 U.S. 375, 377-78, 383-85, 6 S.Ct. 1109, 30 L.Ed. 228 (1886) (discussing original Act and upholding its constitutionality).

In cases decided in the late nineteenth and early twentieth centuries, the Supreme Court explained that the Major Crimes Act applied to crimes committed within the boundaries of Indian reservations regardless of the ownership of the particular land on which the crimes were committed. See United States v. Celestine, 215 U.S. 278, 284-87, 30 S.Ct. 93, 54 L.Ed. 195 (1909); United States v. Thomas, 151 U.S. 577, 585-86, 14 S.Ct. 426, 38 L.Ed. 276 (1894). The Court explained in Celestine that reservation status depends on the boundaries Congress draws, not on who owns the land inside the reservation’s boundaries: “[W]hen Congress has once established a reservation, all tracts included within it remain a part of the reservation until separated therefrom by Congress.” 215 U.S. at 285, 30 S.Ct. 93. This understanding of reservations has continued. See Solem v. Bartlett, 465 U.S. 463, 470, 104 S.Ct. 1161, 79 L.Ed.2d 443 (1984) (“Once a block of land is set aside for an Indian Reservation and no matter what happens to the title of individual plots within the area, the entire block retains its reservation status until Congress explicitly indicates otherwise.” (citing Celestine, 215 U.S. at 285, 30 S.Ct. 93)).

3. Indian Country

In 1948, Congress amended the Major Crimes Act and codified the definition of “Indian country.” See Act of June 25, 1948, ch. 645, 62 Stat. 683, 757; see also Alaska v. Native Village of Venetie Tribal Gov’t, 522 U.S. 520, 528-30, 118 S.Ct. 948, 140 L.Ed.2d 30 (1998) (discussing term’s case-law origins); Cohen at 189-90 (discussing codification). Within the definition, Congress included the boundaries-based concept of reservations that had developed in the case law under the Major Crimes Act. Under 18 U.S.C. § 1151, “Indian country” means:

(a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation,

(b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and

(c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.

18 U.S.C. § 1151 (paragraph breaks added). If an area qualifies under any of these definitions, it is Indian country. See Okla. Tax Comm’n v. Sac & Fox Nation, 508 U.S. 114, 123, 113 S.Ct. 1985, 124 L.Ed.2d 30 (1993) (“Congress has defined Indian country broadly to include formal and informal reservations, dependent Indian communities, and Indian allotments, whether restricted or held in trust by the United States.”); see also Indian Country, U.S.A., 829 F.2d at 973 (“A formal designation of Indian lands as a ‘reservation’ is not required for them to have Indian country status.”). Id.

At the same time Congress enacted this definition of Indian country, it also amended the Major Crimes Act so that it would apply in Indian country as defined in the statute. See 62 Stat. at 758. Thus, the Major Crimes Act now applies in all of Indian country, see 18 U.S.C. § 1153(a), not only reservation land.

Within § 1151’s definition of Indian country, the § 1151(a) reservation clause concerns us here. Congress provided that “Indian country” includes “all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way 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.”

The Supreme Court confirmed this understanding in Seymour v. Superintendent of Washington State Penitentiary, 368 U.S. 351, 82 S.Ct. 424, 7 L.Ed.2d 346 (1962). In that case, an Indian sought federal habeas relief after being convicted in Washington state court of burglary, one of the Major Crimes Act’s enumerated offenses. See 18 U.S.C. § 1153(a); see also Seymour, 368 U.S. at 352 n.2, 82 S.Ct. 424. 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, 82 S.Ct. 424. The State of Washington argued that even though the crjme occurred on land within the reservation’s borders, the particular parcel was owned by a non-Indian. See id. at 357, 82 S.Ct. 424. Ruling for the Indian petitioner, the Supreme Court said Congress’s definition of Indian country in § 1151(a) “squarely put to rest” this argument. Id. “Since the burglary with which [the defendant] was charged occurred on property plainly located within the limits of [the] reservation, the courts of Washington had no jurisdiction to try him for that offense.” Id. at 359, 82 S.Ct. 424. Under § 1151(a), therefore, all lands within the boundaries of a reservation have Indian country status.

4. Reservation Disestablishment and Diminishment

Only Congress can disestablish or diminish a reservation. In Lone Wolf v. Hitchcock, 187 U.S. 553, 23 S.Ct. 216, 47 L.Ed. 299 (1903), the Supreme Coprt said Congress has the power to unilaterally abrogate treaties made with Indian tribes. Id. at 566, 23 S.Ct. 216. “Congress possesses plenary power over Indian affairs, including the power to modify or eliminate tribal rights;” South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 343, 118 S.Ct. 789, 139 L.Ed.2d 773 (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, 104 S.Ct. 1161 (explaining the Lone Wolf Court “decided that Congress could-diminish reservations unilaterally”). Because “only Congress can alter the term's of an Indian treaty by diminishing a reservation,” the Supreme Court has said the “touchstone” ' of whether a reservation’s boundaries have been altered is congressional purpose. Yankton Sioux Tribe, 522 U.S. at 343, 118 S.Ct. 789; see also Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 588 n.4, 97 S.Ct. 1361, 51 L.Ed.2d 660 (1977) (“The focus of our inquiry is congressional intent.”).

Having recognized Congress’s power to disestablish.and diminish Indian reservations, the Supreme Court also has developed a framework to determine whether Congress has exercised its power with respect to a given reservation. We next discuss (a) the presumption against disestablishment and diminishment, (b) Congress’s pursuit of a policy called allotment aiid its relationship to reservation borders, and (c) the Supreme Court’s three-part Solem test for determining whether Congress has altered a reservation’s boundaries.

. a. Presumption against disestablishment and diminishment

Courts do not lightly infer that Congress has exercised its power to disestablish or diminish a reservation See DeCoteau v. Dist. Cty. Court for the Tenth Judicial Dist., 420 U.S. 425, 444, 95 S.Ct. 1082, 43 L.Ed.2d 300 (1975) (“[The Supreme] Court does not lightly conclude that an Indian reservation has been terminated.”). Indeed, the Supreme Court has said courts must approach these issues with a “presumption” that Congress did not intend to disestablish or diminish a reservation. Solem, 465 U.S. at 481, 104 S.Ct. 1161; see also Absentee Shawnee Tribe v. Kansas, 862 P.2d 1415, 1417 (10th Cir. 1988) (“With-regard to acts of Congress subsequent-to the establishmetit of the reservation, the courts adopt an inter-pretational policy against diminishing an Indian reservation.”). Congress can do so, but its intent “must be ‘clear and plain.’ ” Yankton Sioux Tribe, 522 U.S. at 343, 118 S.Ct. 789 (quoting United States v. Dion, 476 U.S. 734, 738-39, 106 S.Ct. 2216, 90 L.Ed.2d 767 (1986)); see also Solem, 465 U.S. at 470, 104 S.Ct. 1161 (explaining Congress must “clearly evince an intent to change boundaries before diminishment will be found” (quotations omitted)); id. at 476, 104 S.Ct. 1161 (discussing a statute’s lack of “explicit expression of congressional intent to diminish” and finding reservation preserved); DeCoteau, 420 U.S. at 444, 95 S.Ct. 1082 (“[The Supreme Court] requires that the congressional determination to terminate ... be expressed on the face of the Act or be clear from the surrounding circumstances and legislative history.” (ellipsis in original) (quotations omitted)).

b. The policy of allotment

The Supreme Court’s test, discussed below, for determining whether Congress intended to disestablish or diminish a reservation developed after Congress pursued a policy known as allotment.

Following decades of setting aside “large sections of the western States and Territories ... for Indian reservations,” Congress in the late nineteenth century adopted “the view that the Indians tribes should abandon their nomadic lives orí the communal reservations and settle into an agrarian economy on privately-owned parcels of land.” Solem, 465 U.S. at 466, 104 S.Ct. 1161. This policy involved Congress dividing, or “allotting,” communal Indian lands into individualized parcels for private ownership by tribal members. Not incidentally, the policy also “open[ed] up unallotted lands for non-Indian settlement,” allowing these “surplus” lands to be sold to non-Indians. Id. at 467, 104 S.Ct. 1161. Laws designed “to force Indians onto individual allotments carved out of reservations and to open up unallotted lands for non-Indian settlement” are often referred to as “surplus land acts.” Id.

Allotment on its own does not disestablish or diminish a reservation. See Mattz v. Arnett, 412 U.S. 481, 497, 93 S.Ct. 2245, 37 L.Ed.2d 92 (1973) (explaining allotment can be “completely consistent with continued reservation status”). But Congress, in passing surplus land acts, has altered the boundaries of some reservations. See Solem, 465 U.S. at 469, 104 S.Ct. 1161 (“[S]ome surplus land acts diminished reservations, and other surplus land acts did not.” (citations omitted)).

Congress pursued the allotment policy on a national scale in the 1887 General Allotment Act. See Act of Feb. 8, 1887, ch. 119, 24 Stat. 388. That law, however, did not affect all Indian tribes and reservations. The Creek Nation was not included in the General Allotment Act. See § 8, 24 Stat. at 391. By the early twentieth century, “Congress was dealing with the surplus land question on a reservation-by-reservation basis, with each surplus land act employing its own statutory language, the product of a unique set of tribal negotiation and legislative compromise,” Solem, 465 U.S. at 467, 104 S.Ct. 1161.

During the allotment era, Congress-“anticipated the imminent demise” of reservations. Id. at 468, 104 S.Ct. 1161; see also id. (“[M]embers of Congress voting on the surplus land acts believed to a man that within a short time—within a generation at most—the Indian tribes 'would enter traditional American society and the reservation system would cease to exist.”); see also Yankton Sioux Tribe, 522 U.S. at 343, 118 S.Ct. 789 (explaining Congress “assumed that the reservation system would fade over time”).

The Supreme Court has said this general hostility to reservations and Indian communal life does not establish that a particular reservation was disestablished:

Although the Congresses that passed the surplus land acts anticipated the imminent demise of the reservation and, in fact,, passed the acts partially to facilitate the process, we have never been willing to extrapolate from this expectation a specific congressional purpose of diminishing reservations with the passage of every surplus land act. Rather, it is settled law that some surplus land acts diminished reservations, and other surplus land acts did not.

Solem, 465 U.S. at 468-69, 104 S.Ct. 1161 (citations omitted); see also Pittsburg & Midway Coal Mining Co. v. Yazzie, 909 F.2d 1387, 1395 (10th Cir. 1990) (explaining congressional -belief “that all reservations would be temporary is irrelevant in determining whether the boundaries of a specific reservation were being diminished by the language of a given statute”). Whether there was “a specific congressional purpose” to disestablish or diminish a particular reservation “depends on the language of the act and the circumstances underlying its passage.” Solem, 465 U.S. at 469, 104 S.Ct. 1161. To distinguish congressional acts that changed a reservation’s borders from those “that simply offered non-Indians the opportunity to purchase land within established reservation boundaries,” the Supreme Court has developed a three-part framework. Id. at 470, 104 S.Ct. 1161.

c. Solem factors

In Solem v. Bartlett, a member of the Cheyenne River Sioux Tribe sought habeas relief after a state court in South Dakota convicted him of attempted rape. Id. at 465, 104 S.Ct. 1161; see also id. at 465 n.2, 104 S.Ct. 1161 (explaining offense fell within Major Crimes Act). The defendant argued the state court lacked jurisdiction because the crime occurred on the reservation. Id. The Supreme Court developed and applied its three-part framework to assess whether the reservation had been diminished. See id. at 470-80, 104 S.Ct. 1161. It concluded the reservation had not been diminished and granted habeas relief because the federal government had exclusive jurisdiction. Id. at 481, 104 S.Ct. 1161. Solem’s three factors are as follows:

First, Solem instructs courts to examine the text of the statute purportedly disestablishing or diminishing the reservation. Statutory language is “[t]he most probative evidence of congressional intent.” Id. at 470, 104 S.Ct. 1161. “Explicit reference to cession or other language evidencing the present and total surrender of all tribal interests strongly suggests that Congress meant to divest from the reservation all unallotted opened lands.” Id. When such language is combined with language committing Congress to compensate the tribe for its land with a fixed sum, Congress’s intent to diminish a reservation is especially clear. Id. at 470-71, 104 S.Ct. 1161. No “particular form of words,” however, is necessary to diminish a reservation. Hagen v. Utah, 510 U.S. 399, 411, 114 S.Ct. 958, 127 L.Ed.2d 252 (1994).

Second, Solem requires courts to consider “events surrounding the passage” of the statute. 465 U.S. at 471, 104 S.Ct. 1161. Even when the statutory language “would otherwise suggest reservation boundaries remained unchanged,” the Court has been willing to find that Congress altered the borders if evidence at step two “unequivocally reveal[s] a widely-held, contemporaneous understanding that the affected reservation would shrink as a result of the proposed legislation.” Id. Step-two contemporary historical evidence includes “the manner in which the transaction was negotiated with the tribes ... and the tenor of legislative reports presented to Congress.” Id.

Third, Solem considers, though “[t]o a lesser extent,” “events that occurred after the passage” of the relevant statute. Id. This evidence can include “Congress’s own treatment of the affected areas” as well as “the manner in which the Bureau of Indian Affairs and local judicial authorities dealt with unallotted open lands.” Id. Later demographic history—evidence of “who actually moved onto opened reservation lands”—also offers a “clue as to what Congress expected would happen once land on a particular reservation was opened to non-Indian settlers.” Id. at 471-72, 104 S.Ct. 1161.

In conducting this three-part inquiry, “[t]here are ... limits to how far” courts can “go to decipher Congress’s intention in any particular surplus land act.” Id. at 472, 104 S.Ct. 1161. “Throughout the inquiry,” courts must “resolve any ambiguities in favor of the Indians” and remember that disestablishment and diminishment are not to be lightly found. Hagen, 510 U.S. at 411, 114 S.Ct. 958. The “rule by which legal ambiguities are resolved to the benefit of the Indians” is applied to its “broadest possible scope” in disestablishment and diminishment cases. DeCoteau, 420 U.S. at 447, 95 S.Ct. 1082. Absent “substantial and compelling evidence” courts are “bound by ... traditional solicitude for the Indian tribes” to conclude “that the old reservation boundaries survived.” Solem, 465 U.S. at 472, 104 S.Ct. 1161.

* * * *

Having addressed AEDPA, the substantive law of Indian country jurisdiction, and reservation disestablishment and diminishment, we turn now to our analysis.

III. DISCUSSION

Our analysis addresses three issues:

(A) Whether there was clearly established federal law as determined by the Supreme Court when the OCCA addressed Mr. Murphy’s jurisdictional claim. We conclude the Solem framework constituted clearly established law.

(B) Whether the OCCA rendered a decision contrary to this clearly established law when it resolved Mr. Murphy’s jurisdictional claim. We conclude that it did because the OCCA failed to apply the Solem framework and took an approach incompatible with it.

(C)Whether the federal government has exclusive jurisdiction over Mr. Murphy’s case. We conclude that it does because, under the Solem framework, Congress has not disestablished the Creek Reservation.

Because the crime occurred in Indian country, Oklahoma lacked jurisdiction. We therefore reverse the district court’s denial of habeas relief and remand with instructions to grant Mr. Murphy’s application for a writ of habeas corpus, under 28 U.S.C. § 2254.

A. Clearly Established Federal Law

Our first inquiry under § 2254(d)(1) is whether clearly established federal law governed Mr. Murphy’s claim. See House, 527 F.3d at 1015. The OCCA issued its jurisdictional decision on December 7, 2005. See Murphy, 124 P.3d 1198. Our survey of clearly established federal law is therefore limited to decisions of the Supreme Court before that date. See 28 U.S.C. § 2254(d)(1); Greene, 565 U.S. at 38, 132 S.Ct. 38. We conclude the three-part Solem framework supplied the OCCA with clearly established federal law to decide Mr. Murphy’s claim.

1. Solem—Clearly Established Law in 2005

The Supreme Court decided Solem in 1984, more than two decades before the OCCA decided Mr. Muiphy’s case. Even in 1984, the Solem Court recognized the three-part framework it applied was not a new development in the law. The Solem Court explained its precedent had already “established a fairly clean analytical structure” for deciding whether Congress altered a reservation’s borders. 465 U.S. at 470, 104 S.Ct. 1161. 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, 97 S.Ct. 1361 (reservation diminished); DeCoteau, 420 U.S. at 427-28, 95 S.Ct. 1082 (reservation disestablished); Mattz, 412 U.S. at 505, 93 S.Ct. 2245 (reservation not disestablished); Seymour, 368 U.S. at 359, 82 S.Ct 424 (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 óf cases construing the dimensions of ‘Indian country.’ ” (citation omitted)).

Between 1984 when Solem was decided and 2005 when the OCCA issued its decision in Mr. Murphy’s case, the Supreme Court did nothing to call Solem into doubt. Rather, it reaffirmed Solem’s three-part framework and applied it to other reservations in the 1990s. See Yankton Sioux Tribe, 522 U.S. at 333, 344, 118 S.Ct. 789 (discussing three factors and concluding reservation was diminished); Hagen, 510 U.S. at 410-11, 421, 114 S.Ct. 958 (conclud