by Jacob T. Levy

Jeffrey Rosen's new piece"Three Perversities of Indian Law."U.S.Lara
Lara, after all, is a citizen of the United States. To hold that Congress can subject him, within our domestic borders, to a sovereignty outside the basic structure of the Constitution is a serious step. The Constitution is based on a theory of original, and continuing, consent of the governed. Their consent depends on the understanding that the Constitution has established the federal structure, which grants the citizen the protection of two governments, the Nation and the State. [...] Here, contrary to this design, the National Government seeks to subject a citizen to the criminal jurisdiction of a third entity to be tried for conduct occurring wholly within the territorial borders of the Nation and one of the States. This is unprecedented. There is a historical exception for Indian tribes, but only to the limited extent that a member of a tribe consents to be subjected to the jurisdiction of his own tribe.
'What'--they [the Indians] may say--'have we to do with the Federal Constitution, or the relations formed by it between the Union and its members? We were no parties to the compact and cannot be affected by it.' And as to a charter of the King of England,--is it not as much a mockery to them, as the bull of a Pope dividing a world of discovery between the Spaniards and Portugese, was held to be by the nations who disowned and disdained his authority?