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in its judicial department the authority to interpret federal law, then the tribal court maintains that power until withdrawn by the tribal sovereign.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.

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.