Bottom Line Up Front: Amendment #2 is intended to protect Choctaw Nation’s sovereignty, but does so at the expense of Tribal Members’ most fundamental rights. Until we also have an amendment on the ballot for a more robust Choctaw Bill of Rights, I encourage everyone to VOTE NO on Amendment 2.

On July 12, Tribal Citizens of the Choctaw Nation will go to the polls for our next general election. In addition to voting for Tribal Council candidates, there are also several proposed Constitutional Amendments on the ballot. Among them is Amendment 2, which is intended to remedy some of the issues I raised in Transplanted Rights in the Choctaw Nation. If the Tribal Council had also included a revamped Bill of Rights as part of this proposed amendment, I would wholeheartedly support it. Unfortunately, they’ve chosen to set this amendment for a vote without remedying our wholly inadequate Bill of Rights, setting the stage for the fundamental rights of Tribal Members to be woefully unprotected. In this post, I explain what Amendment 2 is trying to do, and how its dangers outweigh the benefits in the current moment.

Amendment 2 has 2 parts. First, it removes references to the federal government and the State of Oklahoma from the oaths of office that our Tribal leaders take. I have no issue with this part and think it is an important symbolic gesture promoting our sovereignty. The second part removes references to the federal government and the State of Oklahoma from the Choctaw Bill of Rights.

At the most basic level, that second part of Amendment 2 is trying to solve a real problem. It is amending Article IV, Section 1 of the Choctaw Constitution, which currently provides as follows:

“Nothing in this Constitution shall be interpreted in a way which would diminish the rights and privileges that tribal members have as citizens of this Nation, the State of Oklahoma, the United States of America or under any Act of the Congress of the United States.”

The Choctaw Constitutional Court has interpreted this provision to require that the Choctaw Nation respect all the rights that Tribal Members have as citizens of the United States and the State of Oklahoma. In many cases, this works out alright. For example, because the U.S. Constitution gives everyone the right to remain silent and the right to bear arms, the Choctaw Nation also must honor those rights. Those rights are so fundamental that most of us would already expect the Tribe to protect those rights.

However, when we go into more detail, things get complicated. What if Oklahoma law says you have a right to a jury of 12 people, but Choctaw law only provides for a jury of 6 people? Is the Choctaw law suddenly invalid because it conflicts with Oklahoma law? Under a broad reading of Article IV, Section 1, the Oklahoma law might actually override the Choctaw law. The issue of jury size is just one example among hundreds of policy choices where Choctaw law may be forced to yield to Oklahoma law. That is unmistakably bad for our sovereignty, and we should absolutely put an end to it.

Amendment 2 tries to protect the Nation’s sovereignty by eliminating the references to the State of Oklahoma and the United States, so that our Choctaw law doesn’t take a back seat. That’s a very noble goal. But in the context of the rest of the Choctaw Constitution, making this change comes with serious dangers.

If you look at Article IV of the Choctaw Constitution—the Choctaw Bill of Rights—you’ll notice that there are only 5 sections. We’ve already discussed Section 1 above. Section 2 prohibits religious tests as a qualification to hold public office. Section 3 protects the right of Tribal Members to speak, write, or publish their opinions on matters relating to the Choctaw Nation. Section 4 protects the right of the Members to assemble and petition the Tribal Government for redress of grievances (the right to protest). Finally, Section 5 protects the individual property rights of Tribal Members.

Compared to the Bills of Rights found in the Oklahoma and United States Constitutions, this is an extremely short list of rights. It does not include a right against double jeopardy, a right against unreasonable searches and seizures, a right to remain silent, a right to marry, a right to bear arms, a right to speedy trial, or a right to equal protection of the law. Even in comparison to past Choctaw Constitutions, this is a very short Bill of Rights. The 1860 Choctaw Constitution contained a whopping 21 sections in its Bill of Rights.

Because the current Choctaw Bill of Rights is so short, Article IV, Section 1 has been successfully used to protect the fundamental rights that were left out. If we amend it without also rebuilding our Bill of Rights, we’ll be removing the very provision of Choctaw Law that protects most of our fundamental liberties.

There are some federal law protections that can serve as a backstop, but these can be difficult to enforce outside of challenging a criminal conviction through a federal habeas corpus petition. It’s also worth noting that these federal protections do not protect the right to bear arms at all, which I know would be a serious issue for a lot of folks who live on the Reservation. Using these federal law protections also brings us right back to the same problem that Amendment 2 intends to solve because it makes us more reliant on laws that the Choctaw people did not pass.

The bottom line is that while Amendment 2 is intended to protect Choctaw Nation’s sovereignty, it unacceptably does so at the expense of every Tribal Member’s most fundamental rights. I encourage Choctaw voters to vote no on Amendment 2 until we have a robust Choctaw Bill of Rights. I’d also encourage everyone to contact their council members and tell them that they should immediately begin working with their constituents to craft a new, stronger Choctaw Bill of Rights through an open and transparent process. Yakoke.