Abstract

Excerpted From: Grant Christensen, Article IV and Indian Tribes, 110 Iowa Law Review 629 (January, 2025) (261 Footnotes) (Full Document)

Wayne Turtle, Sr., a Cheyenne Indian, was wanted by the State of Oklahoma on charges of second-degree forgery. Because he was living with his Navajo wife on the Navajo Reservation, the State of Oklahoma asked the Navajo Nation to extradite Turtle to Oklahoma to stand trial. The Navajo Nation refused. The tribal court explained “that Navajo tribal law provided for extradition only to the three neighboring states of Arizona, New Mexico and Utah.” Turtle was accordingly released by the tribal court.

The Governor of Oklahoma then made a request to the Governor of Arizona pursuant to Article IV of the U.S. Constitution. Article IV Section 2 provides that a governor may “Demand” the governor of another state “deliver [] up” a person charged with “Treason, Felony, or other Crime.” Arizona's Governor Williams issued a writ of extradition, and Edgar Merrill, sheriff of Apache County, entered the Navajo Reservation and executed the warrant by arresting Turtle. Before Oklahoma authorities arrived to take custody of him, Turtle filed a writ of habeas corpus with the federal court in Arizona. The federal court granted the writ “on the ground that the Arizona authorities had exceeded their jurisdiction in arresting appellee on the Navajo Reservation.” The Ninth Circuit affirmed, holding that “Arizona has no authority, and hence no duty, to exercise extradition jurisdiction over Indian residents of the Navajo Reservation.” The U.S. Supreme Court denied certiorari.

Turtle is an excellent example of how the U.S. Constitution was drafted without thinking about the tribal sovereign. Article IV's Extradition Clause provides a constitutional duty for the “executive authority” (i.e., governor) of one state to remit, to a sister state, someone charged with a crime, located within its borders, and subject to its jurisdiction. “Critical to the exercise of this power is the dual understanding that the individual sought must be both within the state territory and subject to the state's jurisdiction.” State jurisdiction over Indians ends at the reservation's border. “States may not enter Indian country and remove persons found there absent cooperation with or permission from the Tribe.” In effect, the existence of a tribal sovereign nullified a constitutionally mandated obligation.

While the first three articles of the U.S. Constitution delegated power from the separate state sovereigns to create the three branches of the federal government, Article IV prohibits state discrimination and sets some basic controls on interstate relations, essentially focusing on the “'horizontal’ relationships between states within the federal Union.” As Professor Seth Kreimer explained, “[t]he Constitution was framed on the premise that each state's sovereignty over activities within its boundaries excluded the sovereignty of other states.” Absent from this consideration of sovereign relations was any discussion of Indian tribes. As Professor Judith Resnik has observed, “[t]o the extent Indian tribes are discussed in the Constitution, they seem to be recognized as having a status outside its parameters.” The tension between the Navajo Nation and the State of Arizona in Turtle illustrates how the omission of tribes from Article IV has raised some difficult questions regarding the role of the tribal sovereign in modern American federalism.

This Article recognizes that Indian tribes “did not take part in the Constitutional Convention and did not join in the federation of powers” but argues that precisely because of this absence, the interpretation of Article IV is more complicated when Indians are involved. Part I of this Article explores the origin and purposes of Article IV, looking at how the Framers intended to forestall interstate conflict by creating a basic set of rights that prevent state discrimination of other states' citizens. Part II introduces the tribal sovereign into this narrative of federalism. It articulates why Indian tribes are not bound by the U.S. Constitution and firmly establishes that tribal governments exercise sovereign rights that, at times, alter federal-state relations. It lays the foundation for the argument that follows, separating Article IV's treatment of individuals from its treatment of sovereigns.

Part III then examines each of the four sections of Article IV and discusses how the proper interpretation of each is affected by the existence of a tribal sovereign. It argues that states ought to treat tribal court opinions as entitled to full faith and credit even if tribal courts are not reciprocally bound; that Indian people are entitled to the protection of the Privileges and Immunities Clause like any other citizen; that governors may not avail themselves of the Extradition Clause when the suspected criminal is an Indian located in Indian country; that the Equal Footing Doctrine does not allow states to usurp the inherent powers of tribal government; and that tribes are exempt from the Guarantee Clause's obligation that the United States ensure a Republican form of government. The Article concludes by offering a unifying theory of Article IV's application to Indian tribes.

Taken together, this Article argues forcefully that tribal sovereigns and their exercise of inherent power must be considered when interpreting Article IV, specifically when it comes to the behavior of states which often wish to discriminate against them. The Supreme Court has even recognized states as the “deadliest enemies” of tribal governments. While Indian tribes remain absent from the text of Article IV, it is impossible to understand and interpret the Article without their consideration, particularly when the rights, powers, duties, and obligations of the tribal sovereign are at the forefront of the judicial inquiry.

Ultimately, this Article advances a more nuanced understanding of the ““horizontal” versus “vertical” federalism inherent in Article IV. Where Article IV's provisions extend vertically down from sovereign states to individual citizens, they duly encompass rights which apply to all persons, and thus, Article IV may be used to force the recognition of individual rights like the right to enforce a judgment from a tribal court or the right to the same privileges and immunities enjoyed by citizens of the state. Where, however, Article IV's provisions extend “horizontally” and create obligations between sovereigns, Indian tribes are exempt. Not having given up any of their inherent powers at the Constitutional Convention, they are sovereigns which may not now be obligated under a document they have never ratified.

[. . .]

Unlike the first three articles, Article IV was designed, not to create the branches of the federal government, but to knit the states together as a cohesive whole. The tribal sovereign was largely omitted from the Constitution and is completely absent from the text of Article IV. Indian tribes, however, live in the penumbra of the Article. If the goal of Article IV was to ameliorate conflict between the various domestic sovereigns of the United States, then tribes, as independent nations within her exterior borders, must be accounted for in its interpretation.

Shockingly, there has been virtually no scholarship about Indian tribes and Article IV despite the fact that courts routinely grapple with issues like whether to recognize tribal court judgments and how to extradite Indians from Indian country. This Article is the first to comprehensively engage with tribal sovereigns and consider how the rights and obligations in Article IV may apply to the various structures of Indigenous government.

Tribes are not states. Tribal land is largely beyond the jurisdictional control of the state sovereign, and tribal governments were intended to be left to their own self-government. As such, Indian tribes are not subject to the obligations placed on states by the federal government. The Extradition Clause does not permit states to enter Indian territory to arrest and remove Native persons found there. The Equal Footing Doctrine does not permit states to reach into tribal lands and interrupt the exercise of treaty rights or the ability of the tribe to make rules governing its land and its members. The Guarantee Clause does not create an obligation for the federal government to dictate the form or function of tribal governments. Precisely because tribal governments are separate sovereigns, excluded from the continental congresses, Article IV does not articulate limitations on the inherent authority of Indian tribes.

Article IV was designed to unify the nation into one cohesive whole. While it does not permit states to interfere in tribal self-government and does not impose a constitutional basis for federal interference in tribal affairs-- it is designed to ensure the uniform treatment of citizens. When a person, regardless of their Indian status, wins a judgment from tribal court, that person should be able to enforce that judgment in any state court of the United States. Similarly, states may not discriminate against Indian persons in the provision of fundamental services based upon their enrollment as a member of an Indian tribe. The goal of Article IV was to ensure a uniformity for American citizens when interacting with the structures of the state. A state attempting to deny any person those protections has violated its obligations under Article IV.

Associate Professor of Law at Stetson University College of Law and formerly Professor of Law and Affiliated Professor of American Indian Studies at the University of North Dakota. Also formerly Associate Justice on the Supreme Court of the Standing Rock Sioux Tribe. Professor Christensen earned his JD from Ohio State and his LLM in Indigenous Peoples Law and Policy from the University of Arizona.