Page:Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin.pdf/33

10 need not abide by the Bill of Rights or the Fourteenth Amendment. See Oliphant v. Suquamish Tribe, 435 U. S. 191, 194, n. 3 (1978) (citing Talton v. Mayes, 163 U. S. 376 (1896)). Instead, they are governed by unique regimes of civil and criminal jurisdiction involving overlapping “federal, tribal, and state authorities” unlike those employed anywhere else. Oklahoma v. Castro-Huerta, 597 U. S. ___, ___, and n. 3 (2022) (, dissenting) (slip op., at 15, and n. 3). And their unique character makes their brand of sovereign immunity “not congruent” with the immunity other sovereigns enjoy. Three Affiliated Tribes, 476 U. S., at 890.

Nor are Tribes alone in standing outside the foreign/domestic dichotomy. Take the Court’s treatment of the so-called Insular Territories. It depends entirely on the idea that those Territories are neither foreign nor domestic, but instead unique entities “foreign to the United States, in a domestic sense.” Downes v. Bidwell, 182 U. S. 244, 341 (1901) (White, J., concurring); see also C. Burnett & B. Marshall, Between the Foreign and the Domestic: The Doctrine of Territorial Incorporation, Invented and Reinvented 30, n. 3, in Foreign in a Domestic Sense: Puerto Rico, American Expansion, and the Constitution (2001) (noting that the Court has “unanimously and expressly adopted” that view). No one could accuse me of having fondness for the Insular Cases. See United States v. Vaello Madero, 596 U. S. ___, ___ (2022) (, concurring) (slip op., at 1). But their existence is fatal for respondent’s theory. After all, the Insular Territories are a close comparator to Tribes and many have considered “both [T]ribes and [T]erritories [to] share the same status as ‘ “foreign to the United States, in a domestic sense.” ’ ” H. Babock, A Possible Solution to the Problem of Diminishing Tribal Sovereignty, 90 N. D. L. Rev. 13, 57 (2014). Tellingly, too, Congress expressly abrogated any immunity Territories may enjoy under the Bankruptcy Code. §101(27). Yet it did no such thing when