                                                                     FILED
                                                         United States Court of Appeals
                                                                 Tenth Circuit

                                                                June 14, 2013
                                    PUBLISH                 Elisabeth A. Shumaker
                                                                Clerk of Court
                     UNITED STATES COURT OF APPEALS

                                  TENTH CIRCUIT



 DAVID BRIAN MAGNAN,

          Petitioner-Appellant,

 v.                                                    No. 11-7072

 ANITA TRAMMELL, Warden,
 Oklahoma State Penitentiary *; E.
 SCOTT PRUITT, Attorney General,
 State of Oklahoma,

           Respondents-Appellees.


 SEMINOLE NATION OF
 OKLAHOMA,

           Amicus Curiae.


           APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE EASTERN DISTRICT OF OKLAHOMA
                   (D.C. No. 6:09-CV-00438-RAW-KEW)


Chad A. Readler of Jones Day, Columbus, Ohio, (Steven A. Broussard and
Michael J. Lissau of Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., Tulsa,
Oklahoma; and Gary Peterson, Oklahoma City, Oklahoma, with him on the
briefs), for Petitioner-Appellant.



      *
        Pursuant to Fed. R. App. P. 43(c)(2), Anita Trammell, who was appointed
Warden of Oklahoma State Penitentiary on February 28, 2013, is automatically
substituted for Randall G. Workman as Respondent in this case.
Seth S. Branham, Assistant Attorney General, (E. Scott Pruitt, Attorney General
of Oklahoma, and Jennifer L. Crabb, Assistant Attorney General, on the brief),
Oklahoma City, Oklahoma, for Respondent-Appellee.

Eugene K. Bertman and Jennifer Henshaw McBee of McCormick & Bryan, PLLC,
Edmond, Oklahoma, filed an amicus curiae brief on behalf of the Seminole Nation
of Oklahoma, Amicus Curiae.


Before BRISCOE, Chief Judge, KELLY and HARTZ, Circuit Judges.


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

                                          2
corpus filed pursuant to 28 U.S.C. § 2254, Magnan again asserted that the crimes

at issue occurred in “Indian country” and that the state trial court was without

jurisdiction. The district court denied Magnan’s petition but granted him a

certificate of appealability. Exercising jurisdiction pursuant to 28 U.S.C. § 1291,

we need only address the status of the surface estate to agree with Magnan that

the location where the crimes occurred was “Indian country” because the

requirements to extinguish the restrictions placed on Indian lands by Congress

were not met and that, as a result, the state trial court lacked jurisdiction over the

crimes. Consequently, we reverse the judgment of the district court and remand

with instructions to grant Magnan’s petition for writ of habeas corpus.

                                           I

      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.

                              The state trial proceedings

      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

                                           3
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

                                          4
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 term of life imprisonment on the shooting-with-intent-to-kill

count.” Id.

                             Direct review by the OCCA

      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

                                           5
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, 130 S. Ct. 276 (2009).

                       Magnan’s federal habeas proceedings

      Magnan initiated these federal habeas proceedings on November 13, 2009,

                                          6
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:

      The Petitioner is an Indian and an enrolled member of the Fort Peck
      Assiniboine and Sioux Tribes. The charged offenses occurred on a
      1.0123-acre tract of land in the E/2 of the NE/4 of the SW/4 of
      Section 3, Township 8 North, Range 5 East, Seminole County,
      Oklahoma. This tract is an Indian allotment having Indian title
      which has not been extinguished, because 80% of the surface estate
      and 80% of the mineral estate remain restricted from alienation.
      Jurisdiction over the charged offenses was thus exclusively federal
      under 18 U.S.C. § 1153(a). By convicting the Petitioner without
      jurisdiction, the Oklahoma courts violated § 1153(a) and the United
      States Constitution.

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 issued an order granting Magnan a certificate of appealability.

                                         II

      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




                                         7
the Indian Major Crimes Act, 18 U.S.C. § 1153. 1 Magnan further argues that the

OCCA’s “jurisdictional determination both turned on a clearly erroneous

interpretation of the factual record and contravenes established federal law and

Supreme Court precedent.” Aplt. Br. at 11. Consequently, Magnan argues, he is

entitled to federal habeas relief from his Oklahoma state convictions and

sentences. 2

                                 Standard of review

       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 AEPDA applies to § 2254 habeas petitions filed after its effective

       1
          The Indian Major Crimes Act provides, in pertinent part, that “[a]ny
Indian who commits against . . . another Indian or other person . . . the . . .
offenses [of] . . . murder, . . . assault with intent to commit murder, assault with a
dangerous weapon, [or] assault resulting in serious bodily injury, . . . shall be
subject to the same law and penalties as all other persons committing any of the
. . . offenses, within the exclusive jurisdiction of the United States.” 18 U.S.C. §
1153(a).
       2
         Magnan expressly notes that these federal habeas proceedings are not
intended to “question [his] guilt.” Aplt. Br. at 13. Instead, Magnan argues that
the “outcome [of this case] has life or death ramifications” because “the Seminole
Tribe . . . has not agreed to application of the death penalty in its territory.” Id.
As a result, he asserts, he “would not be eligible for the death penalty” if tried in
federal court under the Indian Major Crimes Act. Id. at 13-14. We find it
unnecessary to determine whether Magnan’s assertions in this regard are correct.

                                          8
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:

         An application for a writ of habeas corpus on behalf of a person in
         custody pursuant to the judgment of a State court shall not be granted
         with respect to any claim that was adjudicated on the merits in State
         court proceedings unless the 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).

         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 resolution.” Aplt. Br. at 16-17. In this situation, he asserts, “the federal

courts owe no deference to state court determinations,” and instead “must review

de novo both the facts and legal issues underlying this dispute.” Id. at 17 (italics

omitted).

         Fortunately, we need not address this difficult question, or any of the


                                            9
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.

                         The state trial court’s jurisdiction

      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.




                                         10
       a) History of ownership of the property

       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:

       A tract of land containing 1.0123 acres, more or less, more
       particularly described as follows: Beginning at a point 3,247.00 feet
       South along the North and South quarter section line and 300.00 feet
       West along a line parallel to the North line of the E/2 NE/4 SW/4 of
       Section 3 from the Northeast Corner of the Northwest Quarter of
       Section 3, Township 8 North, Range 5 East, thence 210.00 feet West
       along a line parallel to the North line of the E/2 NE/4 SW/4 of
       Section 3, thence 210.00 feet South along a line parallel to the East
       line of the E/2 NE/4 SW/4 of Section 3, thence 210.00 feet East
       along a line parallel to the North line of the E/2 NE/4 SW/4 of
       Section 3, thence 210.00 feet North along a line parallel to the East
       line of the E/2 NE/4 SW/4 of Section 3 to the point of beginning.

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, all of the interests inherited by Jimpsey’s heirs were restricted.


                                            11
      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:

          To have and to hold said described premises unto the said
      grantee, her heirs and assigns, forever, free, clear, and discharged of
      all former grants, charges, taxes, judgments, mortgages, and other
      liens and encumbrances of whatsoever nature, subject to the
      condition that no lease, deed, mortgage, power of attorney, contract

                                          12
      to sell or other instrument affecting the land herein described or the
      title thereto shall be of any force and effect, unless approved by the
      Secretary of Interior, or the restrictions are otherwise removed by
      operation of law.

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. 3

State Tr. of Hearing Exhibits (Dec. 13, 2007), Exh. 14 at 29-30. In turn, Kizzie

and her husband were obligated under the terms of the contract to make certain

monthly payments on the residence. Id. at 30. As part of this contract, on

February 20, 1970, Kizzie and her husband executed a warranty deed for the

surface rights to the Tract (while expressly reserving the mineral rights) in favor

of the Housing Authority. The deed contained an express condition precedent,

i.e., that the Housing Authority would, for the benefit of Kizzie and her husband,

build a house on the Tract within two years from the date of the deed.


      3
        According to its web site, the Housing Authority operates under the
Housing and Urban Development (HUD) programs authorized by the Native
American Assistance and Self Determination Act of 1996. See Housing Authority
of the Seminole Nation, http://www.hasnok.org/ (last visited May 20, 2013). The
Housing Authority utilizes funds from HUD’s Indian Housing Block Grants, and
its mission is to create affordable housing for members of the Seminole Nation.
Id. The Housing Authority, in contracting with Kizzie and her husband, was
acting pursuant to the terms of an Annual Contributions Contract entered into
between itself and the Secretary of HUD.

                                         13
      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 District Court of Seminole County

held a hearing on the petition. Kizzie and her husband appeared in person with

their attorney, James Groves. M. Dean Storts, a United States Trial Attorney

working for the Department of the Interior, and as a successor to the United

States Probate Attorney, also entered an appearance. 4 At the outset of the

hearing, Kizzie’s attorney stated that the “case involve[d] surface rights to” the

Tract. Id. at 28. Kizzie was briefly questioned by her attorney during the

hearing. No questions were posed of her by Storts.

      At the conclusion of the hearing, the District Court of Seminole County

issued a written order approving the deed. 5 That order recounted the history of

the Tract at issue and concluded, in pertinent part:

         The Court further finds that the benefits to be gained by the
      Grantors, Petitioners herein [Kizzie and her husband], under the
      terms of the said contract with the Housing Authority of the
      Seminole Nation of Oklahoma, are sufficient to cause the said deed
      dated February 20, 1970, from said Grantors to said Grantee to be in

      4
        On March 16, 1970, Storts filed a written acknowledgment of notice of
the pendency of the proceeding filed by Kizzie and her husband. State Tr. of
Hearing Exhibits (Dec. 13, 2007), Exh. 14, at 12. In that same written
acknowledgment, the Area Director of the BIA, successor to the Superintendent
of the Five Civilized Tribes, also acknowledged receipt of notice of the pendency
of the sale of the Tract. Id.
      5
         It appears the order was drafted by Kizzie’s attorney and signed by the
state district judge.

                                         14
       the best interest of these Petitioners and that said deeds should be
       ratified, confirmed and approved in the name of the said Grantee, the
       Housing Authority of the Seminole Nation of Oklahoma, without
       submitting the same at public auction.

          The Court further finds that M. Dean Storts, United States Trial
       Attorney, has joined with the said Petitioners and requested the Court
       to approve said deed without submitting the same at public auction
       and has agreed that said conveyance would be in the best interest of
       said Petitioners.

           IT IS THEREFORE ORDERED, ADJUDGED AND DECREED,
       by the Court, that said above described deed dated February 20,
       1970, executed by the Petitioners herein, conveying all of their right,
       title and interest in and to the above described land to the Housing
       Authority of the Seminole Nation of Oklahoma, be and the same is
       hereby ratified, confirmed and approved and for the purpose of
       identification the Court has endorsed upon the said deed the
       following, to-wit:

             “Examined and approved in open Court this 16th day of
             April, 1970.

                                        Frank H. Seay
                                        Judge of the District Court”

       and the said Petitioners and Grantors are hereby directed to deliver
       said deed to said Grantee as a valid approved deed by this Court
       conveying said above described land.

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

                                          15
Allen Woodcock).

      Kizzie died on September 23, 1991. Kizzie’s husband received a ½ interest

in the Tract. Kizzie’s nine children each received a 1/18th interest in the Tract.

At the time of Magnan’s crimes, the Tract remained in the possession of Kizzie’s

heirs and their successors.

      b) The definition of “Indian country”

      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 (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.

      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 (1984). The Court has also

held that “federal jurisdiction over the offenses covered by the Indian Major

                                           16
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 (1993).

      c) Congress’s treatment of Indian allotments

      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 (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. 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

                                          17
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:

      That no conveyance made by an Indian of the Five Civilized Tribes
      on or after April 26, 1931, and prior to the date of enactment of this
      Act, of lands purchased, prior to April 26, 1931, for the use and
      benefit of such Indian with funds derived from the sale of, or as
      income from, restricted allotted lands and conveyed to him by deed
      containing restrictions on alienation without the consent and approval
      of the Secretary of the Interior prior to April 26, 1931, shall be
      invalid because such conveyance was made without the consent and
      approval of the Secretary of the Interior: Provided, That all such
      conveyances made after the date of the enactment of this Act must
      have the approval of the Secretary of the Interior.

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:

      That all restrictions upon all lands in Oklahoma belonging to
      members of the Five Civilized Tribes, whether acquired by allotment,
      inheritance, devise, gift, exchange, partition, or by purchase with

                                         18
      restricted funds, of whatever degree of Indian blood, and whether
      enrolled or unenrolled, shall be, and are hereby, removed at and upon
      his or her death: Provided, (a) That except as provided in subsection
      (f) of this section [regarding the sales of the interests of minor and
      incompetent persons], no conveyance . . . of any interest in land
      acquired before or after the date of this Act by an Indian heir or
      devisee of one-half or more Indian blood, when such interest in land
      was restricted in the hands of the person from whom such Indian heir
      or devisee acquired same, shall be valid unless approved in open
      court by the county court of the county in Oklahoma in which the
      land is situated.

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:

      The order shall be issued if in the judgment of the Secretary the
      applicant has sufficient ability, knowledge, experience, and judgment
      to enable him, or her, to manage his, or her, business affairs,
      including the administration, use, investment, and disposition of any
      property turned over to such person and the income or proceeds

                                         19
      therefrom, with such reasonable degree of prudence and wisdom as
      will be apt to prevent him, or her, from losing such property or the
      benefits thereof.
Id.

      d) The OCCA’s analysis of the jurisdictional issue

      In addressing the jurisdictional issue raised by Magnan on direct review,

the OCCA began its analysis by stating that the 1945 and 1947 Acts, “[w]hen read

together, . . . appear to require that for the 1970 deed [from Kizzie to the Housing

Authority] to have removed restrictions on the property, two conditions must have

been met.” Magnan I, 207 P.3d at 403. “First,” the OCCA stated, “the 1945 Act

seems to require that the Secretary of the Interior have consented to the

conveyance of that portion of the surface property Kizzie Tiger Wolf had acquired

by inheritance (1/5th interest) from her father.” Id. “Second,” the OCCA stated,

“the 1947 Act seems to require that the conveyance must have been approved in

open court by the Oklahoma state court of the county in which the property was

located for that portion of the property Kizzie Tiger had acquired by conveyance

from her siblings.” 6 Id. at 403-404.


      6
         The OCCA clearly conflated the requirements of the 1945 and 1947 Acts.
As a result of this conflation, the OCCA presumably began its analysis of the
jurisdictional issue under the mistaken assumption that Kizzie needed the
Secretary of the Interior’s approval to convey only 1/5th of the Tract when, in
fact, Kizzie needed the Secretary’s approval to convey 4/5ths of the Tract.
       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
                                                                       (continued...)

                                         20
      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:

          The record shows that in 1970, Kizzie Tiger Wolf 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 property to the Seminole
      Nation Housing Authority. Notice of that proceeding was served on
      the Area Director of the Bureau of Indian Affairs and the United
      States Department of the Interior. Dean Storts, “Trial Attorney,
      United States Department of the Interior” acknowledged receipt on
      behalf of the Department of the Interior. Kizzie Tiger Wolf appeared
      at the hearing with her attorney, James Groves, and offered
      testimony. Mr. Storts appeared at the hearing for the Department of
      the Interior and entered no objection to the conveyance.

          ****

          In the evidentiary hearing held on our remand in this case, the
      district court concluded that the 1970 conveyance removed all
      restrictions on the surface estate. It did so by reasoning that the 1970
      deed purported to convey all of Kizzie Tiger Wolf’s surface rights to
      the Seminole Nation Housing Authority (including her 4/5ths interest
      requiring Secretary of the Interior approval under the 1945 Act), and
      that the participation of the Department of the Interior’s attorney in
      that proceeding, a proceeding in which he requested that the deed be
      approved by the Seminole County District Court, constituted the
      requisite approval of the Secretary of the Interior necessary for the
      lifting of restrictions on the 4/5ths surface interests Kizzie Tiger


      6
       (...continued)
OCCA’s initial conflation of the requirements had any impact on its ultimate
conclusion.

                                        21
      Wolf obtained by purchase from her siblings. With regard to Kizzie
      Tiger Wolf’s 1/5th inherited interest, the district court seemed to
      conclude that no Secretarial approval was required under the 1945
      Act, but that state court approval was required under the 1947 Act,
      and that approval was granted, as permitted by the Act, with entry of
      the Seminole County District Court’s Order approving the
      conveyance.

         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). We agree with the district court’s
      conclusion, therefore, that the 1970 conveyance extinguished all
      Indian lands restrictions that attached to surface estate of the
      property.

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:

         Magnan argues that even if Indian land restrictions to the surface
      were removed in their entirety by the 1970 conveyance, 4/5ths of the
      mineral interests remain restricted and by virtue of that remaining
      restricted fractional interest, the entire property (surface and mineral)
      retained its character as Indian allotment land. The 4/5ths figure
      Magnan relies on appears to be based on a title opinion contained in
      the supplemented record, an opinion which the district court found to
      be “a correct statement of the ownership interests of the title to this
      property.” While we defer to the district court’s finding that the title
      opinion correctly describes the allocation of ownership interests in
      the property, we assume only for the sake of argument the legal
      conclusion that the 4/5ths mineral interest remained restricted as
      Indian allotment property. FN1 Assuming, therefore, that 4/5ths of the
      mineral interests in the property remained restricted, we are
      confronted with the second potentially dispositive jurisdictional
      question in this case: i.e., whether a fractional interest in the mineral

                                         22
estate that is subject to restrictions on alienation as Indian allotment
property may burden the unrestricted surface estate in such a way to
cause the surface estate to be categorized as Indian Country.

      FN1 .On the record before us, it is not clear how the title
      expert arrived at this figure and we are not necessarily
      convinced that it is correct based on the chain of title
      evidence contained in the record. In any event,
      Magnan’s attorneys appear to concede that Kizzie Tiger
      Wolf’s 1/5th inherited interest in the mineral estate was
      exempt from Indian land restrictions, and as stated in the
      main text, we need not resolve this issue, because the
      quantum of the fractional interest is not dispositive in
      this case.

    This Court considered a similar question in Murphy v. State, 2005
OK CR 25, 124 P.3d 1198. In Murphy, a murder occurred on a state
road that at one time had been Indian allotted land. Over time, the
surface estate on which the road was located, and 11/12ths of the
mineral estate, had been conveyed to non-Indians. Applying a
contacts and interests analysis analogous to the familiar “minimum
contacts” test set out in International Shoe Co. v. State of
Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95
(1945), the Murphy court concluded that the Oklahoma’s [sic]
contacts and interests in the surface property overwhelmed any
fractional interest the Indian heir of the original allottee owned in the
unseen mineral estate. According to Murphy, that conclusion was
necessary because allowing an unobservable fractional interest to
control the enforcement of laws on the surface of a property would
lead to a checkerboard of alternating jurisdictions that would
seriously burden the administration of state and local governments.
Murphy, ¶¶ 42–43, 1206. Murphy held, therefore, that a fractional
interest in an unobservable mineral interest is a contact with the
surface estate that is insufficient to deprive the State of Oklahoma of
criminal jurisdiction. Id. ¶ 42, 1206.

   In this instance, although the restricted fractional interest is larger
(4/5ths vs. 1/12th), under Murphy’s contacts and interests rationale
even a 4/5ths fractional interest in the mineral estate is insufficient to
deprive the State of criminal jurisdiction over the surface of the
property at issue here. This result stems in large part from the

                                    23
unique circumstances of this particular property. Specifically,
evidence introduced at the evidentiary hearing shows that another
homicide had previously occurred on the property in 1998. In that
case, United States v. Woods, No. CR–98–26–B (E.D.Okla.), federal
authorities prosecuted the case as having occurred in Indian
Country. FN2 Unlike Magnan, however, the defendant in Woods
argued in federal district court that the property was not Indian
Country. The federal district court agreed and dismissed the case for
lack of jurisdiction. Key to the federal court’s determination that the
property was not Indian Country was its finding that Indian land
restrictions on the property had been extinguished by Kizzie Tiger
Wolf’s 1970 conveyance of the surface rights to a non-Indian (i.e.,
the Seminole Nation Housing Authority).

      FN2 .At the evidentiary hearing held on our remand, the
      district court admitted as evidence the record of certain
      portions of the proceedings of the United States District
      Court of the Eastern District of Oklahoma in the case of
      United States v. Woods, No. CR–98–26–B. The
      transcript of the federal court’s jurisdictional hearings
      and its minute order dismissing the case for lack of
      jurisdiction are therefore before us as part of the record
      on appeal. We rely on those documents for our
      understanding of the federal district court’s
      jurisdictional finding with regard to this property.

    In the Woods case, the federal district court found that the
Secretary of the Interior approved the lifting of restrictions on the
property through the participation of the Department of the Interior’s
attorney in the 1970 Seminole County District Court proceeding
where the Department’s attorney not only failed to lodge any
objection to the conveyance, but urged the court to approve it. Thus,
with the ruling of the federal district court in Woods that the property
at issue here was not Indian Country, the United States ceded
criminal jurisdiction over the property. Because the United States
District Court for the Eastern District of Oklahoma found this same
property not to be Indian Country for federal criminal jurisdictional
purposes, unless we likewise find the property to be non-Indian
Country, no sovereign entity will exercise criminal jurisdiction over
the property, thereby creating a jurisdictional void.


                                  24
         If Oklahoma has a sufficient interest to exert criminal jurisdiction
      over the surface of a property restricted by an unobserved fractional
      mineral interest in order to avoid creation of a checkerboard
      jurisdiction, it must have an even more compelling interest in
      avoiding the creation of a jurisdictional void within its contiguous
      territory. Therefore, as in Murphy, but to an even greater degree
      here, the State’s interest in exercising criminal jurisdiction over this
      property must overwhelm any fractional interest any Indian heirs of
      the original allottee may own in the unseen mineral estate. We
      agree, therefore, with the district court’s conclusion that the crimes
      committed in this case did not occur in Indian Country and we
      likewise conclude that criminal jurisdiction was proper.

Id. at 404-406 (internal paragraph numbers omitted).

      e) Magnan’s challenges to the OCCA’s ruling

      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


                                          25
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. 7 Indeed, the respondent concedes this point,

and the OCCA itself recognized that federal law required the Secretary’s approval

of the conveyance of Kizzie’s purchased interests in the Tract. We thus turn our

attention to the OCCA’s conclusion that the 1970 state court proceeding

effectively satisfied this Secretarial-approval requirement.

      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


      7
         To be sure, Magnan suggests in passing that the 1955 Act, “[a]s the most
recent law on the books in 1970,” may have governed the purported conveyance
of Kizzie’s 4/5 purchased interest in the Tract. Aplt. Br. at 27. We find no merit
to that suggestion. The 1945 Act provides that any conveyances of restricted
purchased lands must have the approval of the Secretary of the Interior. The 1955
Act, in contrast, permits an Indian holding any type of restricted land, whether
inherited or purchased, to apply to the Secretary for removal of the restrictions,
and such application is not dependent upon the existence of a planned or pending
conveyance. Thus, the OCCA did not, as implied by Magnan, err by ignoring the
1955 Act.

                                          26
Investment Co., 221 U.S. 286 (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. 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 deed to the

[defendants] certain of the said lands” for cash payments. Id. “[A]ll of these

conveyances were made without the approval of the Secretary of the Interior.” Id.

at 299. Marchie subsequently “offered to return the amounts paid by the

respective purchasers,” but those offers were refused. Id. Marchie then filed suit

in Oklahoma state court “to have the deeds in question canceled, and the claim set

aside as a cloud upon [his] title.” Id. “The supreme court of Oklahoma held the

conveyances valid and denied relief to [Marchie].” Id.

      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

                                          27
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. 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. 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.

      Nearly 100 years later, in United States v. Navajo Nation, 537 U.S. 488

(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. 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

                                          28
understood to be a significant component of the Government’s general trust

responsibility.” Id. at 516.

      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

neither of those cases addressed how Secretarial approval is to be obtained.

      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

                                         29
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

                                           30
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 States Department

of the Interior, successor to the United States Probate Attorney,” and expressly

                                         31
acknowledged “receipt of written notice of the pendency of this proceeding this

16th day of March, 1970, said notice being jurisdictional, under the Act of

Congress of August 4, 1947, ch. 458, 61 Stat. 731.” State Tr. of Hearing Exhibits

(Dec. 13, 2007), Exh. 14 at 12. In that same pleading, Harrington also

acknowledged receipt of the pendency of the sale, with “said notice being given

under Section 10 of the Act of Congress of August 4, 1947, ch. 458, 61 Stat. 731,

with respect to the Preferential Right of Purchase given the Secretary of the

Interior under Section 2 of the Act of Congress of June 26, 1936, ch. 831, 49 Stat.

1967.” Id. Importantly, these statutory references were to the 1947 Act, which,

as we have established, governs conveyances of restricted inherited lands.

Notably, no references were made by either Storts or Harrington to the 1945 Act,

which governed the conveyance of Kizzie’s restricted purchased interests in the

Tract.

         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

                                           32
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.

      f) De novo review of the jurisdictional issue

      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

                                          33
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 requirements of the 1945 Act. And, more importantly, nothing in

the language of the 1945 Act persuades us that the Secretarial approval

requirement was reasonably intended to be satisfied by way of a state court

proceeding.

      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:

         Application for the removal of restrictions and for approval of
      sales of lands must be made in triplicate on approved form Five
      Civilized Tribes, 5-484, and submitted to the superintendent for the
      Five Civilized Tribes or any field clerk. These forms will be
      furnished free of charge by the superintendent or field clerk.

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

                                          34
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. 8 See United States v.

Pelican, 232 U.S. 442, 447-449 (1914) (holding that, for purposes of criminal

jurisdiction, trust allotments retain during the trust period a distinctively Indian

character and thus constitute “Indian country”); id. at 449-451 (emphasizing that,

for purposes of determining the status of land as “Indian country,” there is no

significant difference between a trust allotment and a restricted allotment); see

also United States v. John, 437 U.S. 634, 654 (1978) (holding that Indian Major

Crimes Act provided a proper basis for federal prosecution of a crime occurring

on lands held in trust by the federal government for the benefit of the Mississippi



      8
        Because we conclude that the Secretarial approval requirement of the
1945 Act was not satisfied and that the Tract thus retained its status as “Indian
country” at the time of Magnan’s crimes, we need not address the alternative
arguments forwarded by Magnan or the arguments asserted by the Seminole
Nation in its amicus brief.

                                          35
Choctaw Indians).

                                           III

        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 (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 direct respondent to

release Magnan from custody upon issuance of the mandate. 9




        9
        Given the nature of the crimes and Magnan’s admitted guilt, we presume
that federal authorities will arrest and try Magnan following his release from State
custody.

                                           36
11-7072 - Magnan v. Workman

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:

      An application for a writ of habeas corpus on behalf of a person in
      custody pursuant to the judgment of a State court shall not be granted
      with respect to any claim that was adjudicated on the merits in State
      court proceedings unless the 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) (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 (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 (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 (2008) (Roberts, C.J., dissenting)

(quoting St. Cyr, 533 U.S. at 301); see id. at 844 (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. Bailey, 129 S.

                                         -2-
Ct. 2195, 2206 n.6 (2009); Kalb v. Feuerstein, 308 U.S. 433, 438–39 (1940).

Although the cited cases are civil disputes, not criminal prosecutions, res judicata

principles are certainly no weaker in habeas proceedings, which, after all, are

solely to set aside final judgments.

      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.




                                          -3-
