BRISCOE, Chief Judge.
Petitioner David Magnan pleaded guilty in Oklahoma state court to three counts of murder in the first degree and one count of shooting with intent to kill. Magnan was sentenced to death for each of the murder convictions and to a term of life imprisonment on the remaining conviction. Magnan argued on direct review that the crimes occurred in "Indian country," 18 U.S.C. § 1151, and that, as a result, the state trial court lacked jurisdiction over the crimes. The Oklahoma Court of Criminal Appeals (OCCA) held, however, that a 1970 conveyance to the Housing Authority of the Seminole Nation of Oklahoma extinguished all Indian lands restrictions that had previously attached to the surface estate of the property where the crimes occurred. The OCCA further held that, even assuming that restrictions remained on 4/5ths of the mineral estate, such interest was unobservable and insufficient to deprive the State of Oklahoma of criminal jurisdiction over the surface property at issue. In a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254,
In the early morning hours of March 3, 2004, James Howard and Karen Wolf were shot to death at a house in rural Seminole County, Oklahoma. Two other people, Lucilla McGirt and Eric Coley, were shot and wounded at the house. McGirt died approximately two weeks later from complications of her gunshot wounds. Coley survived his injuries. All of the victims, except for Howard, were enrolled members of the Seminole Nation of Oklahoma.
On March 12, 2004, Magnan, an enrolled member of the Fort Peck Assiniboine and Sioux Tribes, was charged by felony information in the District Court of Seminole County with conspiracy to commit the crime of murder in the first degree (Count I), two counts of shooting with intent to kill (Counts II and V), and two counts of murder in the first degree (Counts III and IV). On March 26, 2004, following the death of McGirt, an amended felony information was filed that charged Magnan with conspiracy to commit the crime of murder in the first degree (Count I), one count of shooting with intent to kill (Count II), and three counts of murder in the first degree (Counts III, IV, and V).
On July 22, 2004, the State filed a bill of particulars alleging the existence of five aggravating circumstances: (1) Magnan was previously convicted of a felony offense involving the use or threat of violence to the person (arson); (2) Magnan knowingly created a great risk of death to more than one person; (3) the murders were especially heinous, atrocious, or cruel; (4) the murders were committed by Magnan while serving a sentence of imprisonment on a conviction of a felony; and (5) the existence of a probability that Magnan would commit future criminal acts of violence that would constitute a continuing threat to society.
On May 10, 2005, Magnan appeared before the state trial court and pleaded guilty to Counts II through V of the amended information, i.e., one count of shooting with intent to kill and three counts of murder in the first degree. The State, in response, agreed to dismiss Count I of the amended information which, as noted, charged Magnan with conspiracy. "Before accepting [Magnan's] pleas, the [state trial court] received the results of a psychological competency evaluation and conducted an in-court competency inquiry in which [it] found Magnan competent to enter the pleas." Magnan v. State, 207 P.3d 397, 401 (Okla.Crim.App.2009) (Magnan I).
On July 6, 2005, Magnan appeared before the state trial court for sentencing. "Magnan stipulated to the aggravated circumstances pled in the State's bill of particulars, stated he had nothing to present in mitigation, waived any direct appeal, and asked to be sentenced to death for the murders." Id. The state trial court "sentenced Magnan to death on each of the murder counts and sentenced him to a
Magnan filed an appeal brief with the OCCA asserting seven propositions of error. The OCCA concluded that Magnan had waived his right to direct appeal. But the OCCA proceeded to review what it described as "two non-waivable issues" in the case. Id. First, the OCCA "consider[ed] whether th[e] crime[s] occurred in Indian [c]ountry and so [were] beyond the jurisdiction of the State of Oklahoma." Id. Second, the OCCA "conduct[ed] [its] statutorily required sentence review under [Okla. Stat. tit. 21, § 701.13] and Rule 9.4, Rules of the Oklahoma Court of Criminal Appeals." Id.
With respect to the jurisdictional issue, the OCCA "granted Magnan's attorneys' request for a remand to the [state trial] court for an evidentiary hearing." Id. at 402. On remand, the state trial court "heard evidence on Magnan's Indian status, the Indian status of the victims, the precise location of the property on which the murders occurred, and the title status of that property." Id. Although all of the witnesses who testified at the hearing agreed that the location of the murders qualified as Indian country under federal law, the state trial court nevertheless "concluded on remand that the property was not Indian [c]ountry and the State properly exercised jurisdiction over the crimes charged." Id. When the case returned to the OCCA, the majority of the court "agree[d] ... with the [state trial] court's conclusion that the crimes committed in th[e] case did not occur in Indian [c]ountry and ... that criminal jurisdiction was proper." Id. at 406. Judge Chapel filed a dissenting opinion disagreeing with both of these conclusions. Id. at 414-15.
As for the sentence review, the OCCA unanimously concluded "that the sentence imposed was based upon aggravating circumstances supported by the evidence and not under the influence of passion, prejudice, or any other arbitrary factor." Id. at 413.
Magnan filed a petition for writ of certiorari with the United States Supreme Court. On October 5, 2009, the Supreme Court denied Magnan's petition. Magnan v. Oklahoma, 558 U.S. 906, 130 S.Ct. 276, 175 L.Ed.2d 185 (2009).
Magnan initiated these federal habeas proceedings on November 13, 2009, by filing a motion for appointment of counsel and a motion for leave to proceed in forma pauperis. Those motions were granted and, on August 2, 2010, Magnan's appointed counsel filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition alleged the following ground for relief:
ROA, Vol. I, at 13-14.
On August 23, 2011, the district court issued an opinion and order denying Magnan's petition. The district court also that day entered judgment in the case and
Magnan argues on appeal, as he did below, that his crimes were committed in Indian country. More specifically, Magnan argues that the tract of land where the crimes occurred was an "Indian allotment[], the Indian titles to which ha[d] not been extinguished." 18 U.S.C. § 1151(c). Therefore, Magnan argues, the federal government has exclusive criminal jurisdiction over his crimes pursuant to the Indian Major Crimes Act, 18 U.S.C. § 1153.
It is undisputed that Magnan's habeas petition was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Consequently, Magnan concedes, as he must, that "this case arises under the ... Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254." Aplt. Br. at 16; see Snow v. Sirmons, 474 F.3d 693, 696 (10th Cir.2007) (holding that AEDPA applies to § 2254 habeas petitions filed after its effective date).
Generally speaking, AEDPA mandates that we apply a highly deferential standard of review to any claim addressed on the merits by the state courts. In particular, our standard of review of such claims is typically governed by 28 U.S.C. § 2254(d), which provides as follows:
28 U.S.C. § 2254(d).
Magnan argues, however, that "the typical standard of review set out in AEDPA does not apply" here "because this case turns on jurisdictional questions, specifically, whether the controversy is one reserved solely to the federal courts for
Fortunately, we need not address this difficult question, or any of the specific arguments forwarded by Magnan in support of his position, because we conclude that, even under the deferential standards of review outlined in AEDPA, the OCCA erred in concluding that the State of Oklahoma possessed criminal jurisdiction over the tract of land where the crimes at issue were committed. Thus, we shall simply assume, without deciding, that AEDPA's deferential standards of review apply to the OCCA's review of the jurisdictional issue raised by Magnan.
We now turn to the critical issue raised by Magnan in this federal habeas proceeding, i.e., whether the property where his crimes occurred constituted "Indian country" under 18 U.S.C. § 1151. In addressing this issue, we begin by describing in detail the background of the property at issue. We then review the definition of "Indian country," as outlined in § 1151, and the various federal statutes bearing on the question of whether the property at issue fell within that definition at the time of Magnan's crimes. In turn, applying the AEDPA standards of review, we explain how the OCCA erred in its assessment of this jurisdictional issue. Lastly, applying de novo review due to the OCCA's error, we conclude that the property remained "Indian country" at the time of Magnan's crimes, and that, consequently, the State of Oklahoma lacked jurisdiction over the crimes.
The crimes to which Magnan pleaded guilty occurred on a 1.0123 acre tract of land (the Tract) in rural Seminole County, Oklahoma. The legal description of the Tract, to the extent it is relevant, is as follows:
State ROA at 113 (State Dist. Ct's Findings of Fact and Conclusions of Law, Jan. 2, 2008).
The Tract was part of a 200-acre property allotted in the early 20th century to Jimpsey Tiger (Jimpsey), a full-blooded member of the Seminole Nation. Jimpsey died on January 1, 1944, and left as his heirs: his second spouse Lena Tiger (Lena); his son George William Tiger (George); and daughters Corina Tiger (Corina), Mandy Tiger (Mandy), and Kizzie Tiger (Kizzie). Each of these five heirs received a 1/5th surface interest and a 1/5 mineral interest. Pursuant to the provisions of the Act of Congress of August 4, 1947 (the 1947 Act), ch. 458, 61 Stat. 731,
In 1950, George purchased from Lena her interest in the surface of the Tract. In doing so, George used restricted funds held in trust by the United States of America for his benefit. Later that same year, Kizzie used similar restricted funds held in trust for her benefit to purchase from George, Corina, and Mandy their interests in the surface of the Tract. The County Court of Seminole County, Oklahoma, acting pursuant to the provisions of the 1947 Act, approved the conveyances of these inherited interests to Kizzie. And, as required by the Act of Congress of May 27, 1908 (the 1908 Act), 35 Stat. 312, the Department of Interior, Bureau of Indian Affairs (BIA), approved the conveyance of the 1/5th purchased interest from George to Kizzie. As a consequence of these conveyances, Kizzie owned all the surface interests in the Tract, with a 1/5th interest having been inherited by her from her father, and the remaining 4/5ths interests having been purchased with funds held in trust by the BIA for her benefit. Kizzie also owned a 1/5th inherited interest in the minerals (i.e., the 1/5th interest that she inherited from her father).
The following restrictive clause was placed in the deed to the Tract noting that Kizzie could not convey or alienate the Tract without the approval of the Secretary of the Interior:
State ROA at 120.
In early 1970, Kizzie and her husband, Redmond Wolf, entered into a contract with the Housing Authority of the Seminole Nation of Oklahoma (Housing Authority) under the terms of which the Housing Authority agreed to construct a residence on the Tract for the benefit of Kizzie and her husband.
Following the execution of the warranty deed, Kizzie and her husband filed a petition in the District Court of Seminole County, Oklahoma, seeking approval of the warranty deed. On April 16, 1970, the
At the conclusion of the hearing, the District Court of Seminole County issued a written order approving the deed.
Id. at 3-4.
The Housing Authority proceeded to build a house on the Tract (the house where the crimes at issue in this case occurred). And, in turn, Kizzie and her husband apparently made the requisite payments to the Housing Authority. In 1981, the Housing Authority executed a quit claim deed conveying its interest in the Tract back to Kizzie and her husband. Tr. of Evid. Hr'g at 50 (testimony of Allen Woodcock).
Kizzie died on September 23, 1991. Kizzie's husband received a ½ interest in the Tract. Kizzie's nine children each received
The term "Indian country," for purposes of criminal jurisdiction, is defined in 18 U.S.C. § 1151. See DeCoteau v. Dist. Cnty. Court for Tenth Judicial Dist., 420 U.S. 425, 427 n. 2, 95 S.Ct. 1082, 43 L.Ed.2d 300 (1975) ("While § 1151 is concerned, on its face, only with criminal jurisdiction, the Court has recognized that it generally applies as well to questions of civil jurisdiction."). Section 1151 provides, in relevant part, that "the term `Indian country' ... means ... (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(c). Section "1151(c) contemplates that isolated tracts of `Indian country' may be scattered checkerboard fashion over a territory otherwise under state jurisdiction." DeCoteau, 420 U.S. at 429 n. 3, 95 S.Ct. 1082.
The Supreme Court has held, citing to this definition of "Indian country," that "Federal and tribal courts have exclusive jurisdiction over those portions of the opened [Indian reservation] lands that were and have remained Indian allotments." Solem v. Bartlett, 465 U.S. 463, 467 n. 8, 104 S.Ct. 1161, 79 L.Ed.2d 443 (1984). The Court has also held that "federal jurisdiction over the offenses covered by the Indian Major Crimes Act[, which include murder and assault with intent to commit murder,] is `exclusive' of state jurisdiction." Negonsott v. Samuels, 507 U.S. 99, 103, 113 S.Ct. 1119, 122 L.Ed.2d 457 (1993).
A series of federal statutes pertaining to Indian allotments bears on the status of the Tract at the time of the crimes at issue. To begin with, "the General Allotment Act [of 1887] provided for the division of tribal land into fee simple parcels owned by individual tribal members." Plains Commerce Bank v. Long Family Land and Cattle Co., 554 U.S. 316, 331, 128 S.Ct. 2709, 171 L.Ed.2d 457 (2008). Specifically, the General Allotment Act provided that each allotted parcel would be held in trust by the United States for a "period of twenty-five years ... for the sole use and benefit of the Indian to whom such allotment" was made. 25 U.S.C. § 348. The General Allotment Act further provided that, at the end of that twenty-five year period, the United States would "convey the same by patent to said Indian... in fee, discharged of said trust and free of all charge or incumbrance whatsoever." Id.
The 1908 Allotment Act, 35 Stat. 312, "released particular Indian owners from the[] restrictions [imposed by the General Allotment Act] ahead of schedule, vesting in them full fee ownership." Plains Commerce, 554 U.S. at 331, 128 S.Ct. 2709. But it also provided, in relevant part, that parcels of land allotted to tribal members with at least 3/4 Indian blood could not be alienated until April 26, 1931, unless the restrictions were removed by the Secretary of the Interior. See Act of May 27, 1908, ch. 199, § 1, 35 Stat. 312. In 1928, Congress extended for an additional twenty-five years, or until April 26, 1956, the restrictions on alienation imposed by the 1908 Act. See Act of May 10, 1928, ch. 517, § 1, 45 Stat. 495.
On July 2, 1945, Congress passed a law (the 1945 Act) providing, in pertinent part:
Act of July 2, 1945, ch. 223, § 1, 59 Stat. 313, 313-14 (emphasis in original). As the testimony presented at Magnan's state evidentiary hearing made clear, the 1945 Act was intended by Congress to "cure" all of the conveyances of purchased interests that had occurred prior to that time and that may not have otherwise complied with the requirements of prior acts. But the 1945 Act also made plain that, subsequent to its enactment, any conveyances of purchased interests had to have the approval of the Secretary of the Interior.
On August 4, 1947, Congress passed a law (the 1947 Act) addressing, in pertinent part, conveyances of inherited interests in allotments:
Act of Aug. 4, 1947, ch. 458, § 1, 61 Stat. 731 (emphasis in original).
Lastly, the Act of August 11, 1955 (Act of 1955) extended, "for the lives of the Indians who own such lands subject to such restrictions on the date of this Act," the restrictions on alienation originally imposed by the 1908 Act. See Act of Aug. 11, 1955, ch. 786, § 1, 69 Stat. 666, 667. The Act of 1955 also provided that "[a]ny Indian of the Five Civilized Tribes may apply to the Secretary of the Interior for an order removing restrictions," and it outlined procedures for doing so. Id. § 2. In particular, the Act of 1955 contemplated that an Indian would file an "application" with the Secretary, and that the Secretary would "either issue the order or disapprove the application" within ninety days. Id., § 2(a). The 1955 Act set forth a specific standard for the Secretary to apply in ruling on such an application:
Id.
In addressing the jurisdictional issue raised by Magnan on direct review, the
In turn, the OCCA concluded that "[t]he record of the 1970 Seminole County District Court proceeding in which Kizzie Tiger Wolf sought approval of the conveyance of the surface rights from her and her husband to the Seminole County Housing Authority shows that the requirements of both Acts were met during the course of the proceeding." Id. at 404. In support, the OCCA stated:
Id. (internal paragraph numbers omitted).
The OCCA also rejected Magnan's argument that the Tract remained Indian land because of the character of the mineral interest:
Id. at 404-406 (internal paragraph numbers omitted).
Magnan argues that, contrary to the conclusion reached by the OCCA, "the 1970 conveyance to the Housing Authority was invalid, and thus `null and void, 35 Stat. 312, § 5, because Kizzie ... never obtained approval of the Secretary of [the] Interior, as federal law required her to do, to remove the alienability restrictions on her purchased Indian allotment." Aplt. Br. at 14. In support, Magnan asserts that "[t]he 1970 court proceeding ... was structured to satisfy the separate statutory requirement for inherited property only; it made no reference to the statutes governing conveyance of purchased property, in particular the Secretarial-approval requirement." Id. Thus, Magnan asserts, although Kizzie's "1/5 ownership interest received by inheritance was governed by the 1947 Act," and "the state court's approval of the 1970 conveyance met the requirements of the 1947 Act and validly authorized the transfer of [that] 1/5 inheritance interest in the property," "[t]he same is not true ... for her 4/5 purchased interest, which is governed by other laws." Aplt. Br. at 26.
It is indisputable that the 1945 Act governed the conveyances of Kizzie's purchased interests in the Tract and required Kizzie and her husband to obtain the approval of the Secretary of the Interior before she could convey those purchased interests to the Housing Authority.
Employing the AEDPA standards of review, we first address whether the OCCA's conclusion "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). Magnan argues that the OCCA's conclusion was, indeed, contrary to the principles announced in Tiger v. Western Investment Co., 221 U.S. 286, 31 S.Ct. 578, 55 L.Ed. 738 (1911). At issue in Tiger was "the validity of conveyances [of land] made by Marchie Tiger, ... a full-blood Indian of the Creek tribe, to" an investment company and related individuals. Id. at 298, 31 S.Ct. 578. The lands at issue "were located in the Indian territory, were allotted under certain acts of Congress,... and were inherited by Marchie Tiger during the year 1903 from his [siblings], [all of whom were] members of the Creek nation, and allottees of the lands which were passed by inheritance to Marchie Tiger." Id. In the summer of 1907, Marchie "sold and conveyed by warranty
The United States Supreme Court granted Marchie's petition in error in order to address the question of whether "a full-blood Creek Indian, on and after the 8th day of August, 1907, [could] convey the lands inherited by him from his relatives, who were full-blood Creek Indians, which lands had been allotted to them, so as to give a good title to the purchaser, although the conveyance was made without the approval of the Secretary of the Interior[.]" Id. And the Court ultimately concluded that, under the provisions of the Act of April 26, 1906, ch. 1876, 34 Stat. 145, Congress created "a comprehensive system of protection as to" allotted lands held by Indians of the Five Civilized Tribes, that included a requirement that conveyances of those lands had "to be approved by the Secretary of the Interior." Id. at 306, 31 S.Ct. 578. In other words, the Court held "that the act of April, 1906, while it permitted inherited lands to be conveyed by full-blood Indians, nevertheless intended to prevent improvident sales by this class of Indians, and made such conveyance valid only when approved by the Secretary of the Interior." Id. at 309-310, 31 S.Ct. 578. And, because the conveyances at issue in the case before it had not been approved by the Secretary of the Interior, the Supreme Court reversed the judgment of the Oklahoma Supreme Court holding the conveyances to be valid. Id. at 317, 31 S.Ct. 578.
Nearly 100 years later, in United States v. Navajo Nation, 537 U.S. 488, 123 S.Ct. 1079, 155 L.Ed.2d 60 (2003), the Supreme Court noted, with a citation to and brief discussion of Tiger, that "[t]he protective purpose of the Secretary's approval power has appeared in our discussion of ... statutes governing Indian lands over the years." 537 U.S. at 515, 123 S.Ct. 1079. In Tiger, the Court noted, it recognized "that the requirement of prior approval [by the Secretary] was supposed to satisfy the National Government's trust responsibility to the Indians." Id. Indeed, the Court noted, "[t]he Secretary's approval power," which was intended to protect Indians against those who would attempt to obtain their property for inadequate compensation, "was understood to be a significant component of the Government's general trust responsibility." Id. at 516, 123 S.Ct. 1079.
Magnan does not explain how the OCCA's analysis in his case is contrary to, or an unreasonable application of, the holdings in Tiger or Navajo Nation. As we read Magnan I, the OCCA recognized that, pursuant to federal statute, the Secretary's approval was a prerequisite to the conveyance of restricted purchased lands. That recognition, in our view, is consistent with the general principles outlined in Tiger and Navajo Nation, i.e., that Secretarial approval of conveyances is part of the federal government's general trust responsibility to the Indians of the Five Civilized Tribes. To the extent the OCCA went on to conclude that the unique characteristics of the 1970 court proceeding satisfied the Secretarial approval requirement, that conclusion is neither contrary to, nor an unreasonable application of, Tiger or Navajo Nation for the simple reason that
We next address whether the OCCA's conclusion "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)(2). As we proceed to explain, the OCCA made two unreasonable determinations of fact, at least one of which clearly impacted its conclusion.
In assessing whether the requirements of the 1945 and 1947 Acts had been met, the OCCA stated: "The record shows that in 1970, Kizzie ... and her husband petitioned the Seminole County District Court for removal of restrictions and approval of the deed purporting to convey their entire interest in the surface rights in the [Tract] to the ... Housing Authority." Magnan I, 207 P.3d at 404 (emphasis added). According to the state evidentiary record, however, Kizzie and her husband initiated the 1970 state court action by filing what was styled as a "PETITION FOR APPROVAL OF WARRANTY DEED." State Tr. of Hearing Exhibits (Dec. 13, 2007), Exh. 14 at 5. Nowhere in its body did this petition use the phrase "removal of restrictions," nor did it ask the state district court to remove all restrictions from the Tract. Instead, the petition asked the state district court only to waive competitive bidding and approve the warranty deed; steps that would have been consistent with attempting to satisfy the requirements of the 1947 Act with respect to restricted inherited interests. Thus, the OCCA's finding that Kizzie and her husband filed a petition for removal of restrictions in the 1970 state court proceeding was an "unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2).
To be sure, it is unclear precisely what impact this unreasonable determination of facts had on the OCCA's ultimate determination that the 1970 state court proceeding satisfied the requirements imposed by federal law for removing the restrictions on the Kizzie's purchased interests in the surface of the Tract. That is because the OCCA stated: "It is clear from this record, that regardless of whether the 1970 proceeding in Seminole County District Court was intended to do so or not, it was in effect a combined proceeding that satisfied the requirements of both the 1945 and 1947 Acts (i.e., the 1945 Act requiring secretarial approval for conveyance of property acquired by deed, and the 1947 Act requiring Oklahoma State court approval for property acquired by inheritance)." Magnan I, 207 P.3d at 404. In other words, the OCCA appears to have concluded that, regardless of whether or not Kizzie and her husband intended for the 1970 court proceeding to operate as a vehicle for meeting the Secretarial approval requirement of the 1945 Act, the appearance of attorney Dean Storts at that proceeding, and his failure to voice any objections to the conveyance, operated as Secretarial approval for purposes of the 1945 Act.
That conclusion, however, necessarily had to rest on a finding that Storts possessed authority to act on the Secretary's behalf, for purposes of the 1945 Act, in approving the conveyance of Kizzie's purchased interests in the Tract. But that finding amounts to an unreasonable determination of the facts, for purposes of § 2254(d)(2), in light of the evidence presented at the state evidentiary hearing regarding the jurisdictional issue. During that hearing, copies of the pleadings filed in the 1970 court proceeding were introduced into evidence. Included among those pleadings was an "Acknowledgment of Notice" filed jointly by Storts and Virgil Harrington, the Area Director of the BIA. In that pleading, Storts stated that he was appearing as "Trial Attorney, United
And, significantly, the only testimony presented at the state evidentiary hearing regarding Storts' authority was directly contrary to the OCCA's finding that Storts had authority to act on behalf of the Secretary of the Interior for purposes of approving the conveyance of Kizzie's purchased restricted interest under the 1945 Act. At the state evidentiary hearing, Monta Sharon Blackwell was recognized by the court as an expert in Indian law, particularly with regard to Five Civilized Tribe restricted Indian allotments. Blackwell testified that she was employed by the Department of Interior for more than twenty-five years, and in 2000 was appointed as the Deputy Commissioner of Indian Affairs. Blackwell testified that staff attorneys from the Field Solicitors Office, such as Storts, appeared in state district courts pursuant to the specific authority granted in Section 1 of the 1947 Act regarding inherited restricted property, and that, in turn, their responsibility in such cases was limited to representing the restricted inherited interest. Relatedly, Blackwell testified that Storts, in entering an appearance in the 1970 state court proceeding, could not have been responsible for determining, on behalf of the Secretary of the Interior, whether the restrictions on Kizzie's purchased interests in the Tract should be, or had been, properly removed. Instead, she testified, it would have been the responsibility of the purchaser of the Tract, i.e., the Housing Authority, to make sure that Secretarial approval for the conveyance of Kizzie's purchased interests was obtained.
Because the OCCA's resolution of the jurisdictional issue "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)(2), we are obligated to review the jurisdictional issue de novo, see Fairchild v. Workman, 579 F.3d 1134, 1158-1159 (10th Cir. 2009); Wilson v. Workman, 577 F.3d 1284, 1303 (10th Cir.2009); Brown v. Uphoff, 381 F.3d 1219, 1225 (10th Cir.2004).
As we have previously noted, it is undisputed that the 1945 Act required Secretarial approval of the conveyance of Kizzie's purchased interests in the Tract. The 1945 Act does not, however, describe what procedures Kizzie or the Housing Authority should have taken to obtain such approval. Although respondent continues to suggest that the 1970 state court proceeding could reasonably operate to satisfy the Secretarial approval requirement, we have already explained why there is no basis in the record to support a finding that Storts possessed authority to act on the Secretary's behalf for purposes of satisfying the
Any doubts on this score, we believe, are removed by examining the relevant federal regulations in place at the time of the 1970 state court proceeding. At that time, there was a federal regulation in place, 25 C.F.R. § 121.34, that mandated the submission of a specific application form in order to obtain Secretarial approval for sales of restricted lands. Section 121.34, entitled "Removal of restrictions, application," provided as follows:
25 C.F.R. § 121.34 (1970). Although this regulation did not expressly reference the 1945 Act, it clearly appears to have been intended to encompass sales of purchased interests in allotments. Notably, there is no suggestion by respondent, nor any evidence in the record indicating, that Kizzie or the Housing Authority complied with this regulation by filing an application for approval of the sale of the Tract to the Housing Authority.
For these reasons, we conclude that the Secretarial approval requirement of the 1945 Act was not met and that Kizzie's purchased interests in the Tract were never conveyed to the Housing Authority. In turn, we conclude that the Tract, at the time of Magnan's crimes, was "Indian country," and that exclusive jurisdiction over those crimes rests with the United States.
Because jurisdiction over Magnan's crimes rests exclusively with the United States, rather than the State of Oklahoma, Magnan is "in custody in violation of the... laws ... of the United States." 28 U.S.C. § 2254(a); see generally O'Neal v. McAninch, 513 U.S. 432, 446, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995) (holding that § 2254(a) "requires a causal link between the violation and the custody"). Consequently, we are obligated to grant federal habeas relief in favor of Magnan pursuant to § 2254.
The judgment of the district court is REVERSED and the case REMANDED to the district court with instructions to grant Magnan's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 and
HARTZ, Circuit Judge, concurring:
I join fully the opinion of Chief Judge Briscoe. I write separately only to explain why I think that there is substantial merit to Magnan's argument that we need not defer under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) to the Oklahoma court's jurisdictional ruling.
AEDPA provides:
28 U.S.C. § 2254(d) (emphasis added). The question is whether a claim "was adjudicated on the merits in State court" if the state court had usurped (albeit in good faith) the exclusive jurisdiction of federal courts in prosecuting the case.
The language of § 2254(d) does not explicitly address the issue. Given the overall thrust of AEDPA to limit federal-court interference in state-court prosecutions, one could be tempted to construe the provision broadly as requiring deference in federal habeas proceedings to state-court rulings on jurisdiction. But there are fundamental background principles at play that counsel caution.
First, the trial court's jurisdiction has historically been the core consideration of habeas proceedings. It is apparently undisputed that in 1789 the common law granted courts the authority to provide habeas relief if the committing court lacked jurisdiction. See INS v. St. Cyr, 533 U.S. 289, 344, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (Scalia, J., dissenting) ("`Once a person had been convicted by a superior court of general jurisdiction, a court disposing of a habeas corpus petition could not go behind the conviction for any purpose other than to verify the formal jurisdiction of the committing court.'" (quoting Oaks, Legal History in the High Court — Habeas Corpus, 64 Mich. L.Rev. 451, 453 (1966)) (brackets omitted)); Wright v. West, 505 U.S. 277, 285, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992) (Thomas, J.). And in construing the Suspension Clause, U.S. Const. art. I, § 9, cl. 2 ("The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."), the justices of the Supreme Court agree that "`at the absolute minimum,' [it] protects the writ `as it existed in 1789.'" Boumediene v. Bush, 553 U.S. 723, 815, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008) (Roberts, C.J., dissenting) (quoting St. Cyr, 533 U.S. at 301, 121 S.Ct. 2271); see id. at 844, 128 S.Ct. 2229 (Scalia, J., dissenting) ("The nature of the writ of habeas corpus that cannot be suspended must be defined by the common-law writ that was available at the time of the founding.").
Second, federal courts do not defer to a state court's determination of jurisdiction when the state assumed jurisdiction in violation of a grant of exclusive jurisdiction to the federal courts. See Travelers Indem. v.
I do not suggest that these background considerations are dispositive. The Supreme Court has not resolved whether the Suspension Clause has any application to the States. And it may be enough that a state prisoner can seek review of a state court's jurisdictional ruling by petitioning for a writ of certiorari in the Supreme Court. But as a matter of statutory interpretation of § 2254(d), one may question whether Congress has required the federal courts to defer to a state-court ruling rejecting a claim that the federal courts were the exclusive jurisdiction for prosecuting criminal charges against the defendant. Certainly the comity considerations that animated AEDPA do not apply to prosecutions that usurped exclusive federal jurisdiction.
As we note below, however, the OCCA ultimately recognized, at the end of its discussion, that the 1945 Act applied to purchased interests and that the 1947 Act applied to inherited interests. Consequently, it is unclear whether the OCCA's initial conflation of the requirements had any impact on its ultimate conclusion.
