Page:Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin.pdf/36

Rh “foreign or domestic government” as synonymous with “any government anywhere” rests on the premise that the terms are “two extremes,” so that—by invoking both—Congress meant to cover every part of an all-inclusive spectrum. The Court analogizes to the phrase “near and far,” which it argues sometimes means “all over the map.” Ante, at 5–6. But the premise here is faulty and the analogy inapt. “Near” and “far” may well be “two extremes”—one would not speak of a location being both near and far at the same time, for example. When it comes to sovereigns, however, the terms “foreign” and “domestic” do not share that same quality. Rather, as we have seen, an extensive tradition supports treating certain sovereigns—Tribes among them—as sui generis entities falling outside the foreign/domestic dichotomy. That tradition is fatal under the clear-statement rule.

How does respondent contend with this problem? At argument, he retreated from his briefing and relied instead on a provision of the Bankruptcy Code stating that, for purposes of that Code, “ ‘or’ is not exclusive.” Tr. of Oral Arg. 41 (citing §102(5)). From this, respondent reasoned, the Bankruptcy Code abrogates tribal immunity because everyone can agree at least that Tribes bear some qualities of both foreign and domestic governments.

The provision respondent cites simply does not do what he seems to think it does. In common usage, the term “or” can carry two meanings. The first is exclusive. It requires full satisfaction of one—and exactly one—listed condition. The second is inclusive. It requires full satisfaction of at least one listed condition. All §102(5) does is favor the latter meaning for purposes of the Bankruptcy Code. Sound complicated? Just look at an example. Suppose you tell your child that he can get a pet so long as it is “small or a dog.” The child can choose a small animal (like a hamster) or a large dog (like a mastiff). But can the child also choose a small dog? If the “or” is inclusive (as respondent argues