Unlike the first three articles of the Constitution which create the three branches of the federal government, Article IV establishes a set of rules to police the actions of states and knit them together into a single union. Notably absent from Article IV is any mention of the tribal sovereign. Concomitantly, there has been no comprehensive academic discussion thinking about how the tribal sovereign complicates the purposes of Article IV. This piece advances a completely new understanding of Article IV and its implications in federal Indian law. It suggests that where Article IV advances rights to individual citizens (i.e. a citizen’s right to enforce a court judgment or their claim to the protection of the Privileges and Immunities Clause) then states may not use their connection to any tribal sovereign as an excise to deny them the protections of those rights. In contrast, where Articles IV speaks to rules designed to ensure states treat each other respectfully (i.e. requests for extradition, claims under the Equal Footing Doctrine, or any attempt to enforce the Guarantee Clause) then Article IV’s rules do not permit states to abridge, abrogate, modify, or erode the inherent rights of tribal nations. As the Court has recently opined, tribal governments themselves were absent from the Constitutional Convention and so constitutional limitations on the inherent powers of sovereigns do not extend to tribal governments.

Twenty years ago the Supreme Court misread its precedents and took a short cut to do what was “simpler” instead of what was right. It determined that tribal courts are not courts of general jurisdiction without examining the origins of tribal judicial power. Writing for the majority in Nevada v. Hicks, Justice Scalia concluded that in order to find that tribal courts were able to interpret federal law the Court would have to “attribute to tribal courts jurisdiction that is not apparent.” But power often exists even if it is not apparent at first glance. Unwilling to do even a cursory examination to determine whether tribal courts might nonetheless possess general jurisdiction, the Court decided that it would be “surely [ ] simpler… to conclude that tribal courts cannot entertain” claims arising under federal law. This article objects to the legal principle that tribes cannot exercise their inherent sovereign powers because it would “simpler” for the Supreme Court.

In Hicks, the Court abdicated its responsibility by not engaging in an analysis of the origins of the judicial power exercised by tribal courts. Under the principles of inherent sovereignty it is the tribal sovereign and not the Supreme Court that controls the jurisdiction of tribal courts. If a tribal government vests in its judicial department the authority to interpret federal law, then the tribal court maintains that power until withdrawn by the tribal sovereign. This article further argues that the Court in Hicks exceeded its Article III exercise of the judicial power to attempt to limit – against the will of the tribal sovereign – the general jurisdiction of tribal courts. It concludes by encouraging tribal governments to decide for themselves whether they want their courts to interpret federal law. If the tribal sovereign assigns that power to its courts, then tribal courts should begin affirmatively exercising general jurisdiction despite the Hicks precedent.

Among the most basic principles of our federal courts is that they are courts of limited jurisdiction, exercising only those powers delegated to them in Article III. In 1985 the Supreme Court inexplicably created an exception to this constitutional tenant, and unilaterally declared a plenary judicial power to review the exercise of an Indian tribe’s inherent sovereign authority. This exception is unmoored from all other Supreme Court precedent outside Indian law, and unjustifiably assumes the judicial power in direct contrast to the Court’s ordinarily thoughtful jurisprudence on Article III and deference to the separation of powers.

This article concludes that the Supreme Court was wrong in 1985 when it assumed a plenary judicial power over Indian affairs. The consequences are profound, and suggest a reconceptualization of the entire field of Indian law. Canon creating cases like Oliphant, Montana, and Cabazon should never have been decided because the exercise of a tribe’s inherent authority does not create a federal question conferring subject matter jurisdiction on the federal courts. The inherent power of Indian tribes to criminally prosecute or civilly regulate non-Indians in Indian country should not subject them to the judicially imposed limits set by the Supreme Court, because the Court lacks subject matter jurisdiction to decide those cases. Until a treaty or statute creates an affirmative basis for federal court review, an Indian tribe’s inherent powers are subject to the checks and balances imposed by tribal government and no others.

In June of 2022 the Supreme Court reversed two-hundred years of precedent and held in a 5-4 opinion that states have concurrent criminal jurisdiction over crimes committed by non-Indians against Indians in Indian country. Oklahoma v. Castro-Huerta. In conducting the preemption analysis Justice Kavanaugh’s majority opinion reasoned that while states have a strong interest in prosecuting crimes in Indian country in order to keep the community safe, tribes had functionally no interest because they generally lack criminal jurisdiction over non-Indians. The court then reasoned that the lack of a tribal interest could not preempt the state interest. This article suggests, despite the general prohibition on tribes asserting criminal jurisdiction over non-Indians that was discovered by the Supreme Court in 1978’s Oliphant opinion, tribes can assert criminal jurisdiction over non-Indians who consent to the jurisdiction in tribal court. The argument extends to both affirmative and implied consent and draws its authority from both pre-Oliphant scholarship and precedent as well as from recent development by the Court, Congress, and dicta from the Ninth Circuit. If tribes are able to regularly assert some criminal jurisdiction over non-Indians, then when lower courts apply Castro-Huerta in the future there will be a strong tribal interest to preempt state criminal jurisdiction in Indian country.

While the Supreme Court regularly decides cases defining the limits of the criminal jurisdiction of tribal courts, when it heard United States v. Cooley in 2021 it had not decided a case about the procedural powers of tribal law enforcement in more than a century. Across more than five decades lower courts at all levels struggled to decide whether the inherent criminal powers of tribal law enforcement are coterminous with the jurisdiction of tribal courts or whether tribal officers may have their own set of inherent powers distinct from the power to prosecute. This Article examines the inconsistent split in authority that existed before Cooley and anticipates the future misreading of inherent criminal power by lower courts. It argues that now that the Court has divorced the inherent criminal power of tribal law enforcement from the criminal jurisdictional power of tribal courts, tribal officers may stop, detain, search, and investigate anyone whose criminal conduct poses a danger to the health and welfare of the tribal community. The Article bolsters its application by using the first cases decided by lower courts in the post-Cooley era as artifacts to examine the full implications of the recognition of inherent criminal power exercised by tribal law enforcement.

This article looks at the enforceability of the Extradition Clause in the federal courts of the United States. In 1861 the Supreme Court held in Dennison that the federal courts could not be used to enforce a request made by one state governor to another state governor for the extradition of a suspected criminal under Article IV Section 1. In 1987 the Supreme Court reversed the Dennison decision and for the first time since the Civil War held that the federal judicial power includes the power to enforce the Extradition Clause. This article takes the position that federal judicial power is limited to cases where the state governor has both territorial and personal jurisdiction over the accused. When an individual is on an Indian reservation, even Article IV does not authorize the governor of a state to enter the reservation and return the accused subject to an extradition request. Article IV’s Extradition Clause provides a constitutional duty for the executive of one state to remit to the power of a sister state someone 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. Indian country lies outside the general jurisdictional power of the states. States may not enter Indian country and remove persons found there absent cooperation with or permission from the Tribe. Doing so infringes upon the Tribe’s right to make its own laws and be governed by them.