Page:Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin.pdf/34

Rh it came to the Tribes.

Respondent has no real answer to any of this. He cites some cases in which this Court reprised the “domestic dependent nations” language from Cherokee Nation. See Brief for Respondent 21 (citing cases). But as we have seen, that language actually stands for a view of Tribes flatly inconsistent with the “domestic government” characterization. Taking away those examples leaves respondent with thin gruel. He directs us to United States v. Coxe, 18 How. 100, 103 (1856). But that case observed only that “Cherokee territory” counts as “domestic territory.” Ibid. (emphases added). The decision thus plainly used the term “domestic” only in its spatial sense. The same goes for Blatchford v. Native Village of Noatak, 501 U. S. 775 (1991). There, this Court recognized that Tribes are only “in some respects” “more like States than foreign sovereigns.” Id., at 782. Read with this context in mind, its statement that “[t]hey are, for example, domestic,” referred only to their spatial location. Ibid. Confirming this point, the rest of the paragraph contrasted the Tribes’ physical “domesticity” with features of their political relationship with the United States. Ibid.

More fundamentally, even granting respondent these examples would not do him any good. Just think of the balancing task we would face. On one side of the scale, we would have a couple of scattered quotes (cherry-picked from over two centuries of Indian-law jurisprudence) bandying about the word “domestic” when describing certain features of Tribes. On the other side of the scale, we would have the text and history of the Constitution, supported by more (and better) examples of this Court’s jurisprudence fashioning rules of law treating Tribes as sui generis. Faced with all that countervailing authority, the best respondent could realistically hope for is that we declare §101(27) a jump ball. And under our clear-statement rule, a jump ball is as good as a possession arrow favoring the party opposing the