 Justice Clarence Thomas wrote a concurring opinion stating that it was time to re @-@ examine the entire concept of tribal sovereignty . He noted that doubtful precedents stated that Congress , and not another part of the government had the power to regulate everything that a tribe could or could not do , which renders tribal sovereignty a " nullity . " Thomas did not believe that Congress has the constitutional authority to set the " <unk> and bounds of tribal sovereignty . " He noted that such authority was not in the Indian Treaty Clause nor the Indian Commerce Clause . " In [ his ] view , the tribes either are or are not separate sovereigns , and our federal Indian law cases <unk> hold both positions simultaneously . " Thomas further questioned the law ending the practice of making treaties with the tribes , noting that this was the one clear constitutional provision that provides for dealing with other sovereigns . Thomas noted that a delegation of prosecutorial power is always to an executive branch and that the tribes are not part of any executive branch of the Federal government . Therefore , the case hinges on the tribes ' inherent sovereignty , and based on precedent , the tribes possess that power . 
