Testing McGirt
Open accessAbstract
McGirt v. Oklahoma (2020) and Oklahoma v. Castro-Huerta (2022) reallocated criminal jurisdiction across federal, state, and tribal governments in eastern Oklahoma on a scale unmatched in modern American history. Three testable predictions framed the debate around these landmark decisions: (1) that the federal courts would be inundated and incapacitated (the Deluge Hypothesis); (2) that concurrent state jurisdiction over General Crimes Act cases under Castro-Huerta would either strengthen or undermine enforcement (the Dual Sovereignty Hypotheses); and (3) that Indian country defendants would face harsher or more lenient sentences in federal court than in state court (the Disparity Hypotheses). We test these predictions against a novel dataset of over 140,000 Oklahoma state criminal sentences and nearly 1,500 federal Indian country prosecutions hand-collected from PACER. Four findings emerge. State sentences imposed on American Indian defendants in the McGirt reservation counties fell by roughly 78%, while sentences elsewhere held steady or rose. The federal deluge was real but short-lived, consistent with the Oklahoma Court of Criminal Appeals' 2021 decision against retroactive application in Matloff v. Wallace. Federal General Crimes Act filings collapsed after Castro-Huerta, supporting the warning that concurrent state jurisdiction would result in federal underenforcement. However, the increase in state prosecutions in the affected counties apparently subsumed the decline in federal prosecutions. And across every offense category we examine, federal sentences are equal to or lighter than their state counterparts. These empirical findings should inform the future of federal Indian law and policy. The restoration of reservation status triggers serious consequences for federal, state, and tribal courts, and these consequences can be managed without sacrificing the rule of law. McGirt challenged the federal courts but did not break the system. Courts can wield criminal procedural rules to limit the fallout of major jurisdictional change. Our findings also show that concurrent jurisdiction results in significant effects on criminal practice. For better or for worse, Castro-Huerta produced a substantial return of General Crimes Act cases to the state system. And despite their strained capacity, federal courts tasked with adjudicating Indian country crimes sentenced consistently throughout the surge, at levels at or below those of Oklahoma-one of the most punitive states in the Union.
Integrity signals
Registry
Cites
Statistics
Claims the paper makes
Cites
Crime and Governance in Indian Country
RIley, A. R. (2017) · doi:10.31228/osf.io/3gks7 · Cited by 11 · see citing works
Injustices: Applying the Sentencing Guidelines and Other Federal Mandates in Indian Country
Kornmann, C. B. (2000) · Federal Sentencing Reporter · doi:10.2307/20640316 · Cited by 4 · see citing works
Causes and Consequences of Policy Uncertainty: Evidence from McGirt vs. OklahomaPreprint
Johnston, S., & Parker, D. P. (2022) · SSRN Electronic Journal · doi:10.2139/ssrn.4124658 · Cited by 2 · see citing works
McGirt v. Oklahoma: The Indian Law BombshellPreprint
Miller, R. J. (2020) · SSRN Electronic Journal · doi:10.2139/ssrn.3732406
Untitled work
Id (n.d.)
UnresolvedUntitled work
Id (n.d.)
UnresolvedSimilar transfers of jurisdiction have occurred when states have been admitted to the Union. However, McGirt involves the much rarer shift of cases out of existing state jurisdiction and into federal jurisdiction. Reconstruction, the extraordinary imposition of federal power onto the former Confeder
William, M. (1969) · The Reconstruction of Federal Judicial Power
UnresolvedUntitled work
Reese, E. (n.d.) · Welcome to the Maze: Race, Justice, and Jurisdiction in McGirt v. Oklahoma, U. CHI. L. REV. ONLINE (2020) (describing how Oklahoma vastly overstated the disruptive consequences of McGirt, and predicting instead that little would change)
UnresolvedUntitled work
See, E. N. B. (n.d.) · Judicial Discretion Across Jurisdictions: McGirt's Effects on Indian Offenders in Oklahoma, 107 CORNELL L. REV. 2095 (2022) (examining racial bias in sentencing in both Oklahoma state courts and federal
UnresolvedUntitled work
(1886) · The power of the General Government over these remnants of a race once powerful, now weak and diminished in numbers, is necessary to their protection, as well as to the safety of those among whom they dwell. It must exist in that Government, because it never has existed anywhere else
UnresolvedUntitled work
Cohen (n.d.) · S HANDBOOK � 11
UnresolvedUntitled work
C, U. S. (1153) · United States v. Ruiz
UnresolvedUntitled work
(2026) · 24-7030) (recommending that the 10 th Circuit find that for any federal defendant prosecuted for a Major Crimes Act offense for which the federal government can prove beyond a reasonable doubt that the victim was an Indian and that the offense occurred in Indian country
UnresolvedUntitled work
Reina, D. V. (1990)
UnresolvedAgain, the Court indulged in disparaging language implying that tribal justice systems would be unfair to outsiders. 43 Department of Defense Appropriations Act
Id (2004) · Pub. L
UnresolvedUntitled work
(2013) · Violence Against Women Reauthorization Act
UnresolvedUntitled work
Id (n.d.)
UnresolvedTribes & Trilateral Federalism: A Study of Criminal Jurisdiction, 56 ARIZ. ST
Id, ;. (2024) · L. J
UnresolvedThe new provisions even entertain (very) limited tribal jurisdiction over offenses involving non-Indian offenders and non-Indian victims, in crimes of obstruction of justice and assault of tribal justice personnel
(2016) · 25 U.S.C. � 1304)
UnresolvedUntitled work
(n.d.) · As Maggie Blackhawk described, McGirt was legally obvious yet simultaneously unthinkable. Id
UnresolvedUntitled work
(n.d.)
UnresolvedUntitled work
(n.d.) · Historically known to the United States as "the Five Civilized Tribes
UnresolvedChoctaw History
(n.d.) · INTER-TRIBAL COUNCIL OF THE FIVE CIVILIZED TRIBES
UnresolvedFor an exhaustive list of treaties, see Tribal Treaties Database
(n.d.) · Treaty with the Cherokee, 7 Stat. 93 (1805); Treaty with the Chickasaw, 7 Stat. 89 (1805); Treaty with the Choctaw, 7 Stat. 98 (1805)
UnresolvedUntitled work
(2021) · Okla. Crim. App
UnresolvedUntitled work
State, S. V. (2021) · Okla. Crim. App
UnresolvedUntitled work
State, G. V. (2021) · Okla. Crim. App
UnresolvedUntitled work
State, M. V. (2021) · Okla. Crim. App
UnresolvedUntitled work
Adair, A. (n.d.) · The forty counties of McGirt Indian country are
UnresolvedUntitled work
Lawhorn, S. V. (2021) · Okla. Crim. App
UnresolvedUntitled work
(2023) · Okla. Crim. App
Unresolved112 State v
Id (2024) · Okla. Crim. App
Unresolvedno-decision-yet-on-reconsideration
Herrera, A. (2022) · Supreme Court Lets Ruling Stand on
UnresolvedUntitled work
(2022) · The Court certified only the first question, declining to reconsider McGirt itself. 136 Brief for the Petitioner at 44-45
UnresolvedUntitled work
Id (2022) · The City of Tulsa, writing as amicus curiae, added that requiring state officers to ascertain the victim's Indian/non-Indian status in every crime seriously impaired the police's effectiveness. Brief of the City of Tulsa as Amicus Curiae at 3-6
UnresolvedUntitled work
(n.d.) · The Castro-Huerta majority embraced this prediction, commenting that "[s]tate prosecution would supplement federal authority, not supplant federal authority
UnresolvedUntitled work
(2022) · Brief for the National Congress of American Indians as Amicus Curiae at 18
UnresolvedUntitled work
Id (1975) · (describing how upon enaction, Public Law 280 states largely neglected to meet their obligations
UnresolvedUntitled work
Goldberg-Ambrose, C. (n.d.) · Public Law 280 and the Problem of Lawlessness in California Indian Country, 44 UCLA L. REV. 1405, 1418 (1997) (observing that Public Law 280 "has itself become a source of lawlessness on reservations
UnresolvedUntitled work
(n.d.) · Brief for the National Congress of American Indians, supra note 139
UnresolvedUntitled work
Id (n.d.)
UnresolvedBrief for Former United States Attorneys Michael Cotter et al. as Amici Curiae at 13, Oklahoma v. Castro-Huerta
Crepelle, S. A. (2022) · L. REV
UnresolvedUntitled work
Oklahoma, E. (2022) · The Implications of the Supreme Court's Ruling on Tribal Sovereignty: Hearing Before the H. Subcomm. for Indigenous Peoples of the U.S., 117 th Cong
UnresolvedUntitled work
(n.d.)
UnresolvedUntitled work
Timothy, S. (2008) · Correcting Native American Sentencing Disparity Post-Booker, 91 MARQ. L REV
UnresolvedUntitled work
Jeffery, T. (2006) · See also, Kevin K. Washburn, Federal Criminal Law and Tribal Self-Determination, 84 N. CAROLINA L. REV
UnresolvedUntitled work
(2024) · See generally U.S. Sent'g Comm'n, Guidelines Manual
UnresolvedUntitled work
Sent, U. S. (n.d.) · g Comm'n, Mandatory Minimum Penalties in the Federal Criminal Justice System (2017) (cataloguing the scope and effect of mandatory minimums)
Unresolved� � 211-239, 98 Stat. 1837, 1987-2040 (abolishing parole for federal offenders sentenced for offenses committed after Nov. 1, 1987); see also Michael Tonry
Petersilia, J. (1984) · Sentencing in the United States: Setting the Stage, in The Oxford Handbook of Sentencing and Corrections
UnresolvedUntitled work
See, U. S. (n.d.) · Sent'g Comm'n, Demographic Differences in Federal Sentencing (2023) (documenting persistent unexplained sentencing differences by race and ethnicity)
UnresolvedUntitled work
Starr, S. B. (n.d.) · Mandatory Sentencing and Racial Disparity: Assessing the Role of Prosecutors and the Effects of Booker
UnresolvedUntitled work
Yale, L. J. (2013)
UnresolvedUntitled work
Franklin, T. W. (2013) · But see Ulmer & Bradley, supra note 146, at 775 (finding that Native American defendants in federal court were not sentenced more harshly overall than other federal defendants)
UnresolvedUntitled work
Harwell (n.d.)
UnresolvedUntitled work
(2020) · ) and United States v. Budder, 601 F. Supp. 3d 1105 (E.D. Okla. 2022), concerning an Indian and a non-Indian
UnresolvedUntitled work
(1977) · United States v. Antelope, 430 U.S
UnresolvedUntitled work
Id (2018) · First Step Act of
UnresolvedUntitled work
Appendix, S. I. (n.d.) · Based on our calculations, 17 of the 45 Oklahoma provisions listed in Table A as analogous to or implicated in the Major Crimes Act are 85% crimes under Oklahoma law
UnresolvedUntitled work
See, B. (n.d.) · CRIM. L. & PROC. WITH FORMS � �
UnresolvedUntitled work
Castro-Huerta (n.d.)
UnresolvedUntitled work
(2020) · filings accelerated as the Oklahoma Court of Criminal Appeals recognized the reservations of eastern Oklahoma one by one. 194 It appears that Matloff v. Wallace was the little Dutch boy who held off the flood. 195 The Oklahoma Court of Criminal Appeals' decision against the retroactive application of McGirt coincided neatly with the sudden decline of filings. To achieve this effect, the Oklahoma Court of Criminal Appeals recast McGirt as a new procedural rule and applied the Teague non-retroactivity doctrine, 196 barring retroactive effects for post-conviction proceedings. 197 This reasoning raises troubling questions, beyond the usual critiques of Teague non-retroactivity. 198 Was McGirt a procedural rule? And was it new? 199 In Matloff, the Oklahoma Court of Criminal Appeals found that McGirt only affected the "manner of determining the defendant's culpability" rather than whether any specific conduct was criminal, and therefore McGirt was "clearly a procedural ruling
UnresolvedUntitled work
State, G. V. (n.d.) · d 250 (Okla. Crim. App. 2021). The Chickasaw Nation Reservation joined the list in November of 2021
UnresolvedLike the little Dutch boy who plugged the leaking dike with his finger
(2021) · State ex rel
UnresolvedUntitled work
Lane, T. V. (1989)
Unresolvedthe Supreme Court clarified that Teague's non-retroactivity rule is not binding on state courts, and that state courts may fashion their own rules governing the retroactive application of new federal procedural rules
Matloff, D. V. (2008) · 552 U.S
UnresolvedUnderstanding Teague v. Lane, 18 NYU REV
John, S. (1990) · L. SOC. CHANGE
UnresolvedTeague and Death: The Impact of Current Retroactivity Doctrine on Capital Defendants, 19 HASTINGS CONST
David, R. (1991) · L.Q
UnresolvedUntitled work
Joseph, L. (1990) · Retroactivity and the Great Writ: How Congress Should Respond to Teague v. Lane, 1990 B.Y.U. L. REV
UnresolvedNothing We Say Matters
Meyer, L. (1994) · Teague and New Rules, 61 U. CHI. L. REV
UnresolvedUntitled work
Jeffrey, G. (2021) · Note, Finality, Comity, and Retroactivity in Criminal Procedure: Reimagining the Teague Doctrine After Edwards v. Vannoy, 73 STAN. L. REV. 1551
UnresolvedUntitled work
(2023) · These novel questions have been addressed sparingly thus far in the literature. See Andrew Case, Note, State ex rel Matloff v. Wallace: Reversing Course on Subject Matter Jurisdiction, 47 AM
UnresolvedUntitled work
Suzanne, L. (2023) · Textualism and Another Broken Promise: Retroactivity and McGirt v. Oklahoma, 32 S. CAL. REV. L. & SOC
UnresolvedUntitled work
Gibson, B. (2022) · Lessons from McGirt v. Oklahoma's Habeas Aftermath
UnresolvedUntitled work
Matloff (n.d.)
UnresolvedUntitled work
(n.d.) · McGirt, 591 U.S. at 970-71 (quoting Murphy v. Royal)
UnresolvedUntitled work
Okla (2023) · Congress has chosen to exercise its authority over a particular territory (Indian Country) and over a particular people (Indians), not a type of controversy, at most preempting Oklahoma's territorial and personal jurisdiction over Indians in Indian country."). In Matloff, the Oklahoma Court of Criminal Appeals admitted that it had at first treated Indian country claims as "non-waivable challenges to criminal subject matter jurisdiction
UnresolvedUntitled work
(n.d.) · And not subject to the exceptions in Oklahoma's rule against retroactivity
UnresolvedUntitled work
Matloff (n.d.)
UnresolvedUntitled work
Id (n.d.)
UnresolvedUntitled work
(n.d.) · Matloff was correctly decided. More importantly, Matloff had extremely positive impacts on communities and eliminated the fear that the 'wrong person will get out of jail and do something horrific
UnresolvedUntitled work
Castro-Huerta (n.d.)
UnresolvedAccording to a 2010 GAO Report, USAOs declined to prosecute 50% of the Indian country criminal cases referred to them from 2005-2009. Declinations of Indian Country Matters, GAO-11-167R
Riley, S. (1913) · Indian Country Investigations and Prosecutions, U.S. DEPT JUSTICE
UnresolvedUntitled work
(n.d.) · 209 The ability of the federal prosecutors to keep up with the rising volume of cases is in turn affected by the Federal Bureau of Investigations' capacity to investigate the new cases
UnresolvedUntitled work
(2023) · DEPT JUSTICE
UnresolvedUntitled work
Robertson (n.d.)
UnresolvedUntitled work
Rose, F. (2022) · One hypothesis is that this decline was brought about by a movement for criminal justice reform, involving ballot initiatives, statutes, a campaign for the commutation of excessive sentences, and local innovations
UnresolvedUntitled work
Rose, S. &. (n.d.) · Stat. �
UnresolvedUntitled work
1792, H. B. (2024) · Oklahoma Sentencing Modernization Act of 2024
UnresolvedUntitled work
(n.d.) · Another possible explanation is the lack of federal sentencing guidelines for child sexual abuse offenses, which a recent study by Professor Samuel Merchant found were associated by sentences significantly longer than in the first six months of 2020, the Muscogee District Court had 16 felonies and 14 misdemeanors in total-about 3 felonies and 2 misdemeanors per month. 233 In 2021, the tribal district court received on average 119 felonies and 82 misdemeanors per month. 234 In the year following McGirt, Judge Bigler was holding 80-120 hearings a day, three days week, to accommodate the massive transfer from the state. 235 Just like the federal courts, this flood was most dramatic in the period between McGirt and Matloff, when the state transferred thousands of offenders into tribal courts. 236 In its brief for Oklahoma v. Castro-Huerta, the Muscogee Nation reported prosecuting 2,771 criminal cases in the fifteen months following McGirt. 237 These results occurred in the middle of the Covid-19 pandemic, so all the governmental actors involved were struggling to adapt to virtual procedures. 238 The Cherokee Nation judiciary saw a similar influx of filings in the wake of McGirt. The Cherokee Nation district court experienced on average six criminal prosecutions per month prior to McGirt. The Oklahoma Court of Criminal Appeals recognized the Cherokee Nation Reservation on March 11, 2021, in Hogner v. State. By June 2021, the Nation reported its 1000 th criminal case post-Hogner. 239 Like the Muscogee Nation, Cherokee Nation contains part of Tulsa and its many urban residents. The Choctaw Nation Reservation is located south of the Muscogee and Cherokee Reservations. The Choctaw Reservation is the largest of the McGirt reservations, covering nearly 11,000 square miles. Unlike the Muscogee and Cherokee Reservations, the Choctaw Reservation does not contain any major cities like Tulsa. The Choctaw judiciary also adapted to an incredible influx of cases after McGirt. The Oklahoma Court of Criminal Appeals recognized the Choctaw Reservation on April 1, 2021
UnresolvedMcGirt v. Oklahoma
Bigler, G. (2021) · American Indian Justice Conference
UnresolvedUntitled work
Id (n.d.) · The Nation had 5-6 hours to open the new files, create complaints, secure arrest warrants, and prepare to pick up the inmates. Despite this challenging working relationship, very few offenders were released and not transferred to tribal court. Of the thousands released, only 21 defendants were not picked up by the Tribe. Interview with Judge Gregory Bigler. 237 Brief for the Muscogee (Creek) Nation as Amicus Curiae at 16
UnresolvedUntitled work
(n.d.) · Interview with Gregory Bigler, supra
UnresolvedUntitled work
(2021) · Cherokee Nation files 1,000 th case in tribal court following McGirt rulings, CHEROKEE PHOENIX
UnresolvedUntitled work
Pierce, A. J. (2024) · All of these figures come from a presentation by Choctaw Nation District Court Judge Amy Pierce
UnresolvedUntitled work
Table, A. (n.d.) · Federal Major Crimes Act Offenses and Their Oklahoma State-Law Equivalents � 1153 offense Oklahoma state-law equivalent
UnresolvedUntitled work
Murder, U. S. C. (n.d.) · 1111 (first-degree murder)
UnresolvedUntitled work
(n.d.) · 1111 (second-degree murder)
Unresolved7 -Murder in the First Degree
(n.d.) · Okl. Stat
Unresolved8 -Murder in the Second Degree
(n.d.) · Okl. Stat
UnresolvedUntitled work
Okl (n.d.) · 711 -First Degree Manslaughter
UnresolvedUntitled work
(n.d.) · Okl. Stat. 716 -Second Degree Manslaughter
UnresolvedUntitled work
Okl (n.d.) · 745 -Extortionate Kidnapping
UnresolvedUntitled work
Maiming (n.d.)
Unresolved751 -Maiming (85%) Felony under Chapter 109A (Aggravated Sexual Abuse
Okl (n.d.) · Sexual Abuse
UnresolvedUntitled work
Okl (n.d.) · 1111 -Rape
UnresolvedUntitled work
Okl (n.d.) · 1111.1 -Rape by Instrumentation 21 Okl. Stat. 1114 -First and Second Degree Rape
Unresolved(E)-(I) -Child Sexual Abuse and Child Sexual Exploitation
(n.d.) · Okl. Stat
UnresolvedUntitled work
(n.d.) · -Incest Felony Assault under 18 U.S.C. 113 (assault with intent to commit murder (a)(1); assault with intent to commit a felony (a)(2); assault with a dangerous 21 Okl. Stat. 644(B) -Assault and Battery 21 Okl
UnresolvedDomestic Abuse by Strangulation 21 Okl. Stat. 646, 647 -Aggravated Assault and Battery
(n.d.) · Okl. Stat
UnresolvedUntitled work
Okl (n.d.) · 1401 -Arson in the First Degree
UnresolvedUntitled work
Okl (n.d.) · 1402 -Arson in the Second Degree 21 Okl. Stat. 1403 -Arson in the Third Degree 21 Okl. Stat. 1404 -Arson in the Fourth Degree Burglary 21 Okl
UnresolvedUntitled work
Okl (n.d.) · 1435 -Burglary in the Second and Third Degree 21 Okl. Stat. 1436 -Penalty for Burglary Robbery 21 Okl
UnresolvedUntitled work
Okl (n.d.) · 797 -Robbery in the First and Second Degree 21 Okl
UnresolvedUntitled work
(n.d.) · Okl. Stat. 799 -Second Degree Robbery -Punishment
UnresolvedUntitled work
(n.d.) · Okl. Stat. 800 -Conjoint Robbery
UnresolvedUntitled work
Okl (n.d.) · 1701 -Definition of Larceny 21 Okl. Stat. 1703 -Degrees of Larceny 21 Okl
Unresolved
Flagged first, then by citations
112 of the 117 references couldn’t be matched to a known paper.
- Authors
- Fay, A., Galoob, S., Thomas, W. R., & Zhang, J. Y.
- Affiliations
- University of Tulsa (US)
- University of Michigan (US)
- Corresponding author
- Fay, Alexandra
- Venue
- SSRN Electronic Journal
- Publisher
- Elsevier BV
- Published
- 2026
- ISSN
- 1556-5068 (ISSN-L)
- OpenAlex
- W7172032853
- Cited by
- 0
- References
- 117
- Type
- posted content
- Open access
- green
- doi.org
- Locations
- SSRN Electronic Journal (acceptedVersion)
- Topics
- Social Sciences › Sociology and Political Science › Criminal Law and Policy
- Social Sciences › Sociology and Political Science › Criminal Justice and Corrections Analysis
- Social Sciences › Economics, Econometrics and Finance › Economics and Econometrics › Law, Economics, and Judicial Systems
- Keywords
- McGirt v. Oklahoma, federal Indian law, tribal jurisdiction, concurrent jurisdiction, retroactive application, criminal procedure
About these checks
Registry, retraction, Cites and statistics results are computed, not judged, with one exception: a printed reference that no index lists is read once by a model before it counts as a citation error. Claims are extracted by a model and kept only when their quote appears verbatim in the text; each cited source is then checked, with a model’s help, for whether it says what the claim relies on. Those verdicts can be wrong — read the claim’s quote and the cited source before relying on one.
Statistics and arithmetic are recomputed, not judged.
Confidence bands are shown only for fields calibrated on our annotated test set. None is calibrated yet, so no band is shown.
What counts as a claim ›How we measure confidence ›How we check this ›
Are you an author, or do you see a problem with this page? Request a review
