Gorsuch, J., dissenting
U. Pa. J. Const. L. 357, 360–361 (2003). In the lead opinion for the Court, Chief Justice Marshall emphasized that “[t]he condition of the Indians in relation to the United States is perhaps unlike that of any other two people in existence.” 5 Pet., at 16. For the limited purposes of Article III, Chief Justice Marshall rejected the view that the Tribes could, “with strict accuracy, be denominated foreign nations.” Id., at 17 (emphasis added). Instead, he suggested, “[t]hey may, more correctly, perhaps, be denominated domestic dependent nations.” Ibid. (emphasis added). But notably, he did not describe the Tribes as “domestic” for all purposes. To the contrary, he deliberately chose the term nations, stressing also that “[i]n the general, nations not owing a common allegiance are foreign to each other.” Id., at 16. In that way, he said, “the relation of the Indians to the United States is marked by peculiar and cardinal distinctions which exist no where else.” Ibid. Read in context, the term “domestic dependent nations” is really a term of art meant to capture Tribes’ “hybrid position” between “foreign and domestic states.” Price 670.
The remaining opinions in Cherokee Nation underscore this message. Justice Johnson, concurring, rejected the moniker “foreign state.” 5 Pet., at 27. But he also thought it “very clear that the [C]onstitution neither speaks of” Tribes “as [S]tates or foreign states, but as just what they were, Indian [T]ribes; an anomaly unknown to the books.” Ibid. Justice Baldwin, also concurring, rejected the idea that Tribes were “states, foreign or domestic.” Id., at 43 (emphasis added). And Justice Thompson, joined by Justice Story, dissented on the grounds that he thought the Cherokee had a chiefly “foreign character,” all things considered. Id., at 55. All told, this Court split sharply as to the best way to characterize the legal status of Tribes in relation to the United States. But if there is one thing all Members of the Court could have agreed on, perhaps it would be this:
