Cite as: 522 U. S. 520 (1998)
Opinion of the Court
flected in the text of § 1151(b): The federal set-aside requirement ensures that the land in question is occupied by an "Indian community"; 6 the federal superintendence requirement guarantees that the Indian community is sufficiently "dependent" on the Federal Government that the Federal Government and the Indians involved, rather than the States, are to exercise primary jurisdiction over the land in question.7
in Cherokee Nation v. Georgia, 5 Pet. 1 (1831), and Worcester v. Georgia, 6 Pet. 515 (1832), the Tribe argues that the term refers to political dependence, and that Indian country exists wherever land is owned by a federally recognized tribe. Federally recognized tribes, the Tribe contends, are "domestic dependent nations," Cherokee Nation v. Georgia, supra, at 17, and thus ipso facto under the superintendence of the Federal Government. See Brief for Respondents 23-24.
This argument ignores our Indian country precedents, which indicate both that the Federal Government must take some action setting apart the land for the use of the Indians "as such," and that it is the land in question, and not merely the Indian tribe inhabiting it, that must be under the superintendence of the Federal Government. See, e. g., United States v. McGowan, 302 U. S. 535, 539 (1938) ("The Reno Colony has been validly set apart for the use of the Indians. It is under the superintendence of the Government. The Government retains title to the lands which it permits the Indians to occupy"); United States v. Pelican, 232 U. S. 442, 449 (1914) (noting that the Federal Government retained "ultimate control" over the allotments in question).
6 The federal set-aside requirement also reflects the fact that because Congress has plenary power over Indian affairs, see U. S. Const., Art. I, § 8, cl. 3, some explicit action by Congress (or the Executive, acting under delegated authority) must be taken to create or to recognize Indian country.
7 Although the Court of Appeals majority also reached the conclusion that § 1151(b) imposes federal set-aside and federal superintendence requirements, it defined those requirements far differently, by resort to its "textured" six-factor balancing test. See 101 F. 3d 1286, 1293 (CA9 1996). Three of those factors, however, were extremely far removed from the requirements themselves: "the nature of the area"; "the relationship of the area inhabitants to Indian tribes and the federal government"; and "the degree of cohesiveness of the area inhabitants." Id., at 1300-1301. The Court of Appeals majority, however, accorded those factors virtually
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