Page:Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin.pdf/37

14 it is here), the answer is “yes.” If it is exclusive, the answer is “no.” Critically, however, neither reading covers a medium-sized aardvark. Such an animal may be somewhat small and somewhat doglike, but two near misses do not add up to a hit. This is a simple point but an important one. Regardless of whether “or” is used inclusively or exclusively, one of the input conditions must be satisfied.

With this point in mind, respondent’s reading collapses. To see why, consider another example. Suppose you are a houseguest, and your host invites you to “help yourself to the chocolate or vanilla ice cream in the freezer.” Upon opening the freezer, you find three tubs—vanilla, chocolate, and Neapolitan. For argument’s sake, too, let’s say the last tub also has a sticky note: “Do not eat without clear permission.” Which ice cream can you take? If the host meant “or” exclusively, you may take either chocolate or vanilla, not both. If the host meant it inclusively, you may scoop some of each. In neither event, however, would you have permission to take the Neapolitan ice cream—especially given the cautionary note. As a unique composite, it does not clearly satisfy either of the necessary conditions. So too here. Tribes may have some features of both domestic and foreign governments, but they do not clearly qualify as either, and they have some features found in neither. Accordingly, §102(5) does nothing to rescue respondent’s cause.

If anything, §102(5) only sheds light on what the catchall term “other foreign or domestic government” does cover. That phrase sweeps up, as Chief Judge Barron explained in dissent below, certain “otherwise excluded, half-fish, half-fowl governmental entities like authorities or commissions that are created through interstate compacts” (“ ‘other … domestic government[s]’ ”) and “the joint products of international agreements” (“ ‘other foreign … government[s]’ ”). 33 F. 4th, at 615. Without the catchall, entities of these sorts could potentially fall through the cracks. Tribes, by contrast, are among the most significant entities wielding