Crispin South has posted “Transplanted Rights in the Choctaw Nation: Threats to Sovereignty and Potential Solutions,” forthcoming in the Texas Journal on Civil Liberties & Civil Rights, on SSRN.

Here is the abstract:

The constitutions of Federally Recognized Indian Tribes are varied, but nearly all contain a bill of rights. The Choctaw Nation’s Constitution, like that of several other Tribes, rather than specifically enumerating rights, instead contains a single catch-all provision, protecting the same rights available to citizens of the State of Oklahoma. Recently, the Choctaw Nation’s Constitutional Court adopted a broad interpretation of this provision, potentially allowing non-Tribal sovereigns, like the State of Oklahoma, to indirectly control the laws and public policy of the Tribe. This is a serious threat to the Tribe’s sovereignty, touching on issues of transplanted law raised by Indian Law scholars Elmer Rusco and Wenona Singel. To address this threat, the Choctaw Nation, and other Tribal Nations with similar constitutional provisions, ought to adopt a practice of selectively incorporating rights. Under this approach, only those rights fundamental to the Tribal structure of liberty and democracy would be incorporated, thus preserving the Tribe’s right to be different from the State, and the United States. Little has been written regarding these “transplanted rights” provisions in Tribal constitutions, and nearly nothing has been published proposing judicial and legislative solutions to the problems raised by these provisions. This note fills this gap in the literature by proposing judicially focused solutions, legislative solutions, and solutions involving constitutional reform.