Gorsuch, J., dissenting
provisions to not apply to Canada-born “American” Indians); Akins v. Saxbe, 380 F. Supp. 1210, 1218–1222 (Me. 1974) (similar). Evidently, our neighbor to the north has encountered similar difficulties. See R. v. Desautel, 2021 SCC 17 (analyzing traditional cross-border hunting rights).
Focusing only on the spatial meaning of “domestic,” however, would miss an obvious point. When it comes to the status of governments, this Court has long recognized that geography takes a backseat. Whether a government qualifies as “domestic” instead usually depends on “the political relation in which one government or country stands to another”; the term has “no relation to local, geographical, or territorial position.” Cherokee Nation v. Georgia, 5 Pet. 1, 55 (1831) (Thompson, J., dissenting); see also id., at 16–20 (Marshall, C. J., for the Court). At minimum, this line of thinking leaves open a reasonable possibility that Congress in §101(27) meant the term “domestic” in its political (not geographic) sense. Accordingly, for respondent’s primary argument to succeed, he must show that the political relationship between Indian Tribes and the United States is such that the term “domestic government” clearly covers them.
That is a burden respondent cannot carry. Properly understood, Indian Tribes “occupy a unique status” that is neither politically foreign nor domestic. National Farmers Union Ins. Cos. v. Crow Tribe, 471 U. S. 845, 851 (1985). Significant evidence supports this understanding. Start with the text of the Constitution. Its terms appear to “place Indian [T]ribes in an intermediate category between foreign and domestic states.” Z. Price, Dividing Sovereignty in Tribal and Territorial Criminal Jurisdiction, 113 Colum. L. Rev. 657, 670 (2013) (Price). At least two provisions illustrate as much. One is the Commerce Clause, which gives Congress the power to regulate “Commerce” “with foreign Nations,” “among the several States,” and “with the Indian
