Choctaw Nation citizens will vote on five potential amendments to the Choctaw Constitution during their July 12 general election, including one that asks voters to eliminate some of their own legal protections from the nation’s Bill of Rights.
In January, the Tribal Council passed legislation putting the five amendments on July’s ballot. While most of the amendments propose relatively minor changes, Amendment 2 proposes a major change that could affect a Choctaw Constitutional Court’s decision to legalize same-sex marriage and same-sex adoption under Choctaw law.
Amendment 2 would amend Article IV, Section 1 of the Choctaw Constitution, which is the first provision of the Choctaw Bill of Rights. Under Section 1, the nation’s laws are currently prevented from “diminish(ing) 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.”
By passing Amendment 2, voters would strike Article IV, Section 1’s references to Oklahoma and the United States to allow the Choctaw Nation to “diminish” rights that tribal citizens hold under state or federal law. The proposed amendment would also change Article XVII of the Choctaw Constitution, which stipulates the oath of office taken by elected or appointed tribal officials. The oath would be amended to delete the pledge to “support, obey and defend” the Oklahoma Constitution and the U.S. Constitution.
While the tribe’s official Q&A on Amendment 2 says it would “further strengthen the nation’s ability to make, amend, and be governed by its own laws,” the amendment removes the clause of the nation’s constitution that led to CC-23-02, Choctaw Nation v. Morrison, a decision by the Choctaw Constitutional Court in 2023 that legalized same-sex marriage and adoption in the Choctaw Nation.
While all state governments recognize same-sex marriage since the 2015 Obergefell v. Hodges decision, tribal nations throughout the United States are not bound by the U.S. Constitution and may continue to ban the recognition of same-sex couples within the tribe. In 2023, CC-23-02 held that the Choctaw Nation’s ban on recognizing same-sex marriage violated Article IV, Section 1 of the Choctaw Constitution based on the language that Amendment 2 would now strike.
“The central question is whether the [Choctaw Nation Marriage and Divorce Act] provisions prohibiting individuals of the same sex from marrying run afoul of the rights afforded Choctaw members in their Bill of Rights,” a three-judge panel wrote in CC-23-02. “The majority in Obergefell recognized that marriage is a fundamental right that all couples are entitled to under the Fourteenth Amendment of the Constitution of the United States, which provides for equal protection to all citizens under the law. It would be impossible to afford Choctaw members the rights afforded in the Choctaw Nation of Oklahoma Constitution while not recognizing the rights of those members afforded by the Constitution and laws of the United States of America. Based upon Obergefell, any attempt to prevent Choctaw couples of the same sex from marrying would be a violation of the rights afforded them by the Bill of Rights in their Constitution and it is the opinion of this Court that Sections 3 and 3.1 of the [act] are unconstitutional.”
In reaching its decision, the Choctaw Constitutional Court relied on the portion of Article IV, Section 1 that guarantees Choctaw citizens the rights all Americans have under federal law. Now, if voters approve Amendment 2 and strike that portion of the constitution, the cited legal basis for overturning the nation’s ban on recognizing same-sex marriage would be eliminated.
“A marriage between persons of the same gender performed in another tribe, a state, or in any other forum shall not be recognized as valid and binding in the Choctaw Nation of Oklahoma,” the currently invalidated Section 3.1 of the Choctaw Nation Marriage and Divorce Act reads.
While federal same-sex marriage and adoption protections may be the rights most immediately in jeopardy for Choctaw citizens if Amendment 2 is approved, its language could have broader implications on other rights guaranteed under Oklahoma and U.S. constitutional law but not by the Choctaw Constitution.
The second half of Amendment 2, which strikes the reference to Oklahoma and the United States from the nation’s oath of office, is more symbolic and does not appear to have a major legal effect.
‘Other ways of establishing the right’
Tanner Allread, a Choctaw citizen and the Richard M. Milanovich Fellow in Law at the UCLA School of Law, called the amendments a step “in the right direction.” While he acknowledged concerns that Amendment 2 could eliminate Choctaw citizens’ right to same sex marriage, he ultimately said there are other ways the court could reach its same conclusion that invalidated Section 3.1 of the Choctaw Nation Marriage and Divorce Act.
“There is a question of what this amendment would do for that kind of case, but to me it does draw into question some of the basis of that decision,” Allread said in an interview. “But there are other ways of establishing the right to same-sex marriage for the Choctaw citizens.”
Allread, who is in a same-sex marriage, argued other provisions in Choctaw law would allow the Choctaw Constitutional Court to reach the same legal conclusion. He cited the Choctaw Nation’s adoption of the Indian Civil Rights Act‘s protections, which includes an equal protection clause that the Choctaw Constitutional Court could also use to recognize same-sex marriage. While passage of Amendment 2 this month could create some uncertainty, Allread said Amendment 2 would be good for the nation’s sovereignty.
“And it will definitely be up to the Choctaws, the Choctaw courts, to decide what the protections [are],” Allread said.
He also stressed that Amendment 2 would not automatically repeal CC-23-02. Instead, he said the current decision would have to be challenged for the court to even consider rolling back the nation’s recognition of same-sex marriage. He said he is skeptical there will be a desire among the nation’s political branches — Chief Gary Batton’s administration and Tribal Council — to rollback recognition of same-sex marriages after two years of acceptance. Instead, Allread seemed optimistic the tribe’s constitutional court would uphold the right to same-sex marriage if it is challenged after the amendment passes.
Asked whether Amendment 2 is aimed at overturning any specific court ruling — like the Morrison decision on same-sex marriage — Choctaw Nation public relations manager Randy Sachs deferred comment to the official Q&A and election guide online because he said the Batton administration is only trying to push citizens to vote — not vote one way or the other.
“[Amendment 2 would] remove the reference to the state of Oklahoma and the federal government, as the nation is a separate and distinct sovereign which has the right to make its own laws and be governed by them,” the election guide states.
Meanwhile, a potential future Choctaw attorney currently attending the Sandra Day O’Connor College of Law at Arizona State, Crispin South, wrote a law review article published this spring that criticized the Morrison decision’s affirmation of same-sex marriage rights and proposed constitutional amendments as one route of reform. South suggested an amendment to include the addition of new rights to the Choctaw Constitution that could protect the rights of Oklahomans and Americans that Choctaw citizens would otherwise lose under Amendment 2’s passage.
“Perhaps the strongest possible solution to the incidental diminution problem would be an amendment to the Choctaw Nation Constitution enumerating rights which the people of the nation wish to protect from the political whims of external actors such as the Oklahoma state Legislature,” South wrote. “Should the nation choose to amend the constitution to specifically enumerate certain rights, there are a number of different models to which the nation could look. For example, many tribes simply restate the requirements of [the Indian Civil Rights Act] as their entire bills of rights. Others, like the Navajo Nation — which does not operate under a written constitution — enumerate rights through statute. Still others adopt functional equivalents to the rights set forth in ICRA and the U.S. Bill of Rights more broadly, quite similar to standard practices of state-level constitutional drafting.”
South argued that if the existing clause is left in the nation’s constitution, other state and federal rights could be incorporated into Choctaw law without input from Choctaw citizens.
Among rights potentially worth preserving for Choctaw citizens, South listed the right to a jury trial before the termination of parental rights under Oklahoma law, the right to bear arms under federal law, landlord-tenant rights under state law, the right to access abortion under state law, and Oklahoma’s “broad right to use deadly force in self-defense against unlawful intruders on private property and other assailants.”
Other Choctaw constitutional amendments propose minor changes
The four other Choctaw Constitutional amendments make relatively minor changes in comparison to Amendment 2, with Amendment 1 appearing to be the next most consequential. It replaces a description of the nation’s boundaries with a reference to the Choctaw Nation Reservation as described in “federal statutes and treaties,” as well as adding the clause “other lands as may hereafter be acquired by or for the Choctaw Nation.”
Amendment 1 is a substantive change that would extend the nation’s constitutional definition of its own lands, allowing land outside the originally described boundaries to be considered part of the nation. The most likely implication of this change is to clarify that the nation’s jurisdiction extends to areas like off-reservation land held in trust for the nation, which is legally Indian Country, but currently excluded from the nation’s constitutionally defined area.
The stated purpose of Amendment 1 in the official 2025 Choctaw election guide is to make the boundaries’ description “clearer and more readable.”
Amendment 3 would remove the description of Tribal Council district within the current constitution and clarify that the Tribal Council has the power to reapportion new districts. Since the council currently has the power to reapportion, the change is mostly procedural to clarify the document’s meaning.
The official purpose of Amendment 3 is to make “the Choctaw Constitution more accurate and clearer” since the Tribal Council already has the power to reapportion districts and the current district descriptions are inaccurate.
Amendment 4 would officially rename the capital of the Choctaw Nation from “Tuskahoma” to the traditional spelling “Tvshka Homma.” The change is procedural and does not have a substantive policy effect.
The official purpose of Amendment 4 is to exercise sovereignty, as well as promote “Choctaw culture by correctly referring to the Capitol of the Choctaw Nation by its Choctaw translation from ‘Red Warrior.'”
Amendment 5 would remove the Choctaw Constitution’s requirement that its amendments be approved by the United States secretary of interior, who is currently Doug Burgum.
Federal statute does give the secretary of interior the power to disapprove tribes’ constitutional amendments “contrary to applicable laws,” but federal policy has leaned toward not exercising that power and respecting tribal sovereignty. Removing the constitutional provision might set up an awkward legal scenario if the secretary of interior disapproved a constitutional amendment and all of the tribe’s branches of government maintained it were in effect, but given the rarity of a secretary’s disapproval of an amendment, that is unlikely to occur even if technically possible.
The official purpose of Amendment 5 is to enhance “the nation’s sovereignty by removing federal oversight” and enable “the Choctaw Nation to amend the Choctaw Constitution without federal interference or involvement.”
Read the 5 proposed Choctaw Constitution amendments
The full text of the sections of the Choctaw Constitution that would be affected by the proposed amendments appears below by amendment.
Existing provisions are presented in italic typeface, additions are underlined and in bold typeface, and removed words are struck through. Amendment 2 is the only amendment to alter multiple section of the constitution.
Amendment 1
Article 1, Section 2
Where in this Constitution the term “Choctaw Nation” or “the Nation” is used to denote a geographical area, it shall mean all lands within the exterior boundaries of the Choctaw Nation Reservation including those lands within the original boundaries of The Choctaw Nation Reservation as determined by federal statutes and treaties and to such other lands as may hereafter be acquired by or for The Choctaw NationÂ
the following areas in the State of Oklahoma, to wit: Beginning at the point on the Arkansas River, 100 paces east of Old Fort Smith, where the western boundary line of the State of Arkansas crosses the said River, and running thence due south to Red River; thence up Red River to the mouth of Island Bayou, where it empties into Red River, about 26 miles on a straight line below the mouth of False Washita; thence running a northwesterly course along the main channel of said Bayou to the junction of the three prongs of said Bayou, nearest the dividing ridge between Washita and Low Blue Rivers, as laid down on Capt. R. L. Hunter’s map; thence northerly along the eastern prong of Island Bayou to its source; thence due north to the Canadian River; thence down said River to its junction with the Arkansas River; thence down said River to the place of beginning as set forth in the Treaty of June 22, 1855 (11 Stat. 611).
Amendment 2
Article 4, Section 1
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.Article 17
All elected or appointed officials shall take the following oath:
“I, _______________, do solemnly swear (or affirm) that I will support, obey, and defend the Constitution of the Choctaw Nation of Oklahoma
, the State of Oklahoma, and the United States of Americaand will discharge the duties of my office with fidelity.I further swear (or affirm) that I will devote my best efforts toward the preservation of the heritage and tradition of the Choctaw Nation in order that all mankind may better understand, evaluate, and appreciate the history of its glorious past and enjoy it brilliant future, so help me God.”
Amendment 3
Article 8, Section 2
The Tribal Council shall consist of twelve (12) members, one (1) each to be elected from
that part of the followingtwelve (12) districts which lie within the boundaries set forth in Article I, Section 2 of this Constitution.Âprovided that theThe Tribal Council is responsible for determining the area embraced within each district and shall have the responsibility for reapportionment based on population when necessary.
District Number Area Embraced Within Each DistrictÂ
1 McCurtain County south of the north line of Township Six (6) South as established by the United States Geological Survey.
2 McCurtain County north of the north line of Township Six (6) South as established by the United States Geological Survey.Â
3 LeFlore County south of the north line of Township Four (4) North as established by the United States Geological Survey.Â
4 LeFlore County south of the north line of Township Four (4) North as established by the United States Geological Survey.Â
5 Haskell County
6 Latimer County
7 Pushmataha County
8 Choctaw County
9 Bryan County
10 Atoka CountyÂ
11 Pittsburg County
12 Coal County and that part of Hughes County South of the Canadian River.
Amendment 4
Article 8, Section 5
At the hour of twelve (12) noon on October 1, 1983, following the ratification of this Constitution, the successful candidates for Tribal Council shall meet with the elected Chief and the Choctaw Election Commission at the Capital at
Tuskahoma Tvshka Homma at which time and place the Chairperson/Arbitrator of the Commission will place twelve (12) slips of paper in a receptacle, six (6) of which will have the number four (4) on them and six (6) will have the number two (2) written on them. Each slip will be folded so that the number thereon cannot be seen. In the presence of each other and the elected Chief, each successful candidate shall draw one (1) of the slips from the receptacle and the number on the slip each of the successful candidates draws will be the number of years he shall serve during the first term.
Amendment 5
Article 18, Section 2
Adoption by not less than fifty-one percent (51%) of the total number of qualified voters of the Nation voting in the last Chief’s election shall be required to amend this Constitution.
Amendments shall be effective upon approval by the Secretary of the Interior.
