Gorsuch, J., dissenting
Tribes.” Art. I, §8, cl. 3. The inclusion of that third Commerce Clause power suggests that Tribes were not reachable either by Congress’s foreign commerce power or by its domestic (interstate) commerce power. More obscure but no less probative is the Constitution’s exemption from the apportionment formula of all “Indians not taxed.” Art. I, §2, cl. 3; Amdt. 14, §2. That choice recognizes that Tribes are not fully “domestic” to the United States, and instead stand “separate from the polity.” Price 670.
These provisions, too, reflected a widely shared understanding about the sovereign status of Tribes at the founding. As Secretary of War Henry Knox put it in a letter to President Washington, the Tribes were in many ways akin to “foreign nations,” and not part “of any particular [S]tate.” Letter to G. Washington (July 7, 1789), in 3 Papers of George Washington: Presidential Series 134, 138 (D. Twohig ed. 1989). Consistent with this understanding, before 1871 the United States (and, prior to that, Great Britain) chiefly managed tribal relations by way of treaty. Entering into those treaties “admit[ted]” that the Tribes “rank among those powers who are capable of making treaties.” Worcester, 6 Pet., at 559. Governments do not normally deal with politically “domestic” authorities in that manner. See, e.g., Ex parte Crow Dog, 109 U. S. 556, 572 (1883) (linking Tribes’ “ ‘capacity to make treaties’ ” with their unique “ ‘semi-independent’ ” status, allowing them to control “ ‘their domestic government’ ” (quoting United States v. Joseph, 94 U. S. 614, 617 (1877))); The Cherokee Tobacco, 11 Wall. 616, 622 (1871) (Bradley, J., dissenting) (similar).
This Court’s earliest Indian-law jurisprudence offers more evidence along the same lines. In Cherokee Nation v. Georgia, “three distinct views of tribal sovereignty emerged” on the question whether, “for purposes of Article III,” the Cherokee Nation was a “foreign nation.” R. Tsosie, Tribalism, Constitutionalism, and Cultural Pluralism: Where Do Indigenous Peoples Fit Within Civil Society?, 5
