Page:Haaland v. Brackeen.pdf/69

Rh tribal and foreign sovereigns. Art. I, §8, cl. 3 (emphases added). This language suggests a shared framework for Congress’s Indian and foreign commerce powers and a different one for its interstate commerce authority. See R. Monette, A New Federalism for Indian Tribes: The Relationship Between the United States and Tribes in Light of Our Federalism and Republican Democracy, 25 U. Toledo L. Rev. 617, 629, n. 82 (1994). More than that, the term “with” suggests that Congress has the authority to manage “all interactions or affairs … with the Indian [T]ribes” and foreign sovereigns—wherever those interactions or affairs may occur. Balkin 23. By contrast, the term “among” found in the Interstate Commerce Clause most naturally suggests that Congress may regulate only activities that “extend in their operation beyond the bounds of a particular [S]tate” and into another. Id., at 30. All this goes a long way toward explaining why “Congress’s powers to regulate domestic commerce are more constrained” than its powers to regulate Indian and foreign commerce. Id., at 29.

For another thing, as nouns, “States” and “Indian Tribes” are not alike—and they were not alike at the founding. “States” generally referred then, as it does today, to a collection of territorial entities. Not so “Tribes.” That term necessarily referred to collections of individuals. See C. Green, Tribes, Nations, States: Our Three Commerce Powers, 127 Pa. St. L. Rev. 643, 649, 654–669 (2023) (Green); see also 1 W. Crosskey, Politics and the Constitution in the History of the United States 77 (1953). Want proof? Dust off most any founding-era dictionary and look up the definition of “Tribe.” See, e.g., 2 J. Ash, The New and Complete Dictionary of the English Language (1775) (“[a] family, a body of the people distinguished by family or fortune”); 2 S. Johnson, A Dictionary of the English Language (4th ed. 1773) (“[a] di[s]tinct body of the people as divided by family or fortune, or any other characteri[s]tick”); T. Dyche, A New General English Dictionary (14th ed. 1771) (“the particular