Same-sex marriage under United States tribal jurisdictions

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The individual laws of the various United States federally recognized Native American tribes set the limits on same-sex marriage under their jurisdictions. Most, but not all, Native American jurisdictions have no special regulation for marriages between people of the same sex or gender. Same-sex marriage is possible in the Coquille Tribe (Oregon) since 2008, the Mashantucket Pequot (Connecticut) since at least 2011, the Suquamish tribe (Washington) since 2011, the Confederated Tribes of the Colville Reservation (Washington), the Leech Lake Band of Ojibwe (Minnesota), Little Traverse Bay Bands of Odawa Indians (Michigan), Pokagon Band of Potawatomi Indians (Michigan), and Santa Ysabel Tribe (California) since 2013, and the Puyallup (Washington) since 2014. The Cheyenne and Arapaho Tribes were granting marriage licenses to same-sex couples by 2013, without any change to their marriage laws. These marriages were first recognized by the federal government in 2013 after section 3 of the Defense of Marriage Act (DOMA) was declared unconstitutional in United States v. Windsor. Under Section 2 of DOMA, individual states are explicitly free not to recognize same-sex marriages.

Nations that provide legal recognition[edit]

Cheyenne and Arapaho Tribes[edit]

Marriage law of the Cheyenne and Arapaho Tribes, a united tribe in Oklahoma, makes no specification of the gender of the participants. Based on that, Darren Black Bear and Jason Pickel applied for and received a marriage license on 18 October 2013.[1] Theirs was the third such license issued by the Tribes.[2]

Confederated Tribes of the Colville Reservation[edit]

The Confederated Tribes of the Colville Reservation in the state of Washington voted for same-sex marriage recognition on September 5, 2013. The vote passed the council without objection.[3]

Coquille Tribe[edit]

In 2008 the Coquille Tribe legalized same-sex marriage, with the law going into effect in May 2009.[4] The law approving same-sex marriage was adopted 5-2 by the Coquille Tribal Council and extends all of the tribal benefits of marriage to same-sex couples. To marry under Coquille law, at least one of the spouses must be a member of the tribe.[5] In the 2000 Census, 576 people defined themselves as belonging to the Coquille Nation.

Although the Oregon voters approved an amendment to the Oregon Constitution in 2004 to prohibit same-sex marriages, the Coquille are a federally recognized sovereign nation, and thus not bound by the Oregon Constitution.[6] On May 24, 2009, the first same-sex couple—Jeni and Kitzen Branting—married under the Coquille jurisdiction.[7]

Iipay Nation of Santa Ysabel[edit]

On June 24, 2013, the Iipay Nation of Santa Ysabel announced their recognition of same-sex marriage, becoming the first tribe in California to do so.[8]

Leech Lake Band of Ojibwe[edit]

On November 15, 2013, the first same-sex marriage took place among the Leech Lake Band of Ojibwe. The band has the most populous reservation in the state of Minnesota, which had legalized same-sex marriage at the state level earlier in the year.[9]

Little Traverse Bay Bands of Odawa Indians[edit]

The Little Traverse Bay Bands of Odawa Indians tribal council voted to recognize same-sex marriages on March 5, 2013.[10] The Tribal chairman signed into law the legislation on March 15, 2013,[11] and a male couple was married that day. Same-sex marriages entered into by the sovereign tribe will not be recognized by Michigan, the state where the Little Traverse Bay Bands are based.[12]

Section 13.102C of the Tribal Code states "Marriage means the legal and voluntary union of two persons to the exclusion of all others. [13]

Mashantucket Pequot[edit]

The Connecticut-based Mashantucket Pequot Tribal Nation's law states that "Two persons may be joined in marriage on the Mashantucket Pequot Reservation" without specifying gender.[14] This was a change from the 2008 code, which specified that "A man and a woman may be joined in marriage on the Mashantucket Pequot Reservation".[15]

Pokagon Band of Potawatomi Indians[edit]

The Pokagon Band of Potawatomi Indians announced on March 9, 2013, that recognition for same-sex marriages would enter into force on May 8, 2013.[16] They issued their first such marriage certificate to a male couple on June 20, 2013.[17]

The Puyallup Tribe of Indians[edit]

On July 9, 2014, the Puyallup Tribe of Indians in the state of Washington legalized same-sex marriage. [18]

Suquamish Tribe[edit]

The Suquamish tribe of Washington legalized same-sex marriage on August 1, 2011, following a unanimous vote by the Suquamish Tribal Council. At least one member of a same-sex couple has to be an enrolled member of the tribe to be able to marry in the jurisdiction.[19]

Nations that might have recognition[edit]

The federally recognized Native-American Tribes in this section have not shown signs to officially recognize same-sex couples married elsewhere. But their legislation about recognition of out-of-jurisdiction marriages is neutrally worded and so could leave the possibilities open to such a recognition. In parallel, the wording of their marriage conditions within jurisdiction is frequently not explicitly excluding same-sex marriages but a few elements of it contains reference to heterosexual marriage such as "husband and wife". But the wording may also forbid it explicitly.

Bay Mills Indian Community[edit]

Section 1401 of the Tribal Code for the Bay Mills Indian Community states : "The Bay Mills Indian Community shall recognize as a valid and binding marriage any marriage between a man and a woman formalized or solemnized in compliance with the laws of the jurisdiction in which such marriage was formalized or solemnized. Section 1404.B.1. requires for the issuance of a marriage licence that "The parties are a man and a woman (...)".[20]

Burns Paiute Tribe of the Burns Paiute Indian Colony[edit]

  • Section 5.1.31(1) of the Tribal code of Burns Paiute Tribe of the Burns Paiute Indian Colony of Oregon (Harney County, Oregon) states : "All marriages performed other than as provided for in this Chapter, which are valid under the laws of the jurisdiction where and when performed, are valid within the jurisdiction of the Tribe." .
  • Section 5.1.34 Marriage Ceremony states: "No particular form of marriage ceremony is required. However, the persons to be married must declare in the presence of the person performing the ceremony, that they take each other as husband and wife, and he must thereafter declare them to be husband and wife.[21]

Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians[edit]

Section 4-7-6 (c) of the Tribal code of the Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians (Coos Bay, Oregon) forbids same-sex marriage : "No marriage shall be contracted between parties of the same gender." But section 4-7-13 shows a marriage from another jurisdiction could be recognized : "A marriage contracted outside the territory of the Tribes that would be valid by the laws of the jurisdiction in which the marriage was contracted is valid within the territory of the Tribes.".[22]

Confederated Tribes of the Umatilla Reservation, Oregon[edit]

The Family Law Code of the Confederated Tribes of the Umatilla Reservation, Oregon (Umatilla County, Oregon) states:[23]

  • Section 2.04 Marriage contract; age of parties : "Marriage is a civil contract entered into by persons at least 18 years of age, who are otherwise capable, and solemnized in accordance with section 2.06."
  • Section 2.07 Form of solemnization : "No Particular Form Required. In the solemnization of a marriage no particular form is required except that the parties thereto shall assent or declare in the presence of the person solemnizing the marriage and in the presence of at least two witnesses, that they take each other in marriage."
  • Section 2.03(A) Other Jurisdictions : "All marriages performed other than as provided for in the Family Law Code, which are valid under the laws of the jurisdiction where and when performed, are valid within the jurisdiction of the Confederated Tribes, provided further that they are not also in violation of section 2.08(A) (=consanguinity) or 2.08(B) (=bigamy). This includes marriages performed in accordance with other Tribe’s customs and traditions provided that the Tribe whose customs and traditions are asserted as the basis for a finding of marriage recognizes the marriage as valid."

Confederated Tribes of the Warm Springs Reservation of Oregon[edit]

  • Section 331.160 Marriages Consummated in Other Jurisdictions of the Tribal Code Book of the Confederated Tribes of the Warm Springs Reservation of Oregon states : "For the purposes of this Chapter a marriage that is valid and legal in the jurisdiction where consummated shall be valid and legal within the jurisdiction of the Tribal Court."
  • Section 331.150 Form of Solemnization - Witnesses states : "In the solemnizing of a marriage, no particular form is required, except the parties thereto shall assent or declare in the presence of the minister, priest, or Judge solemnizing the same and in the presence of at least two attending witnesses that they each take the other to be husband and wife." [24]

Grand Traverse Band of Ottawa and Chippewa Indians[edit]

Section "10 GTBC § 501 (e)" of the Tribal Code for the Grand Traverse Band of Ottawa and Chippewa Indians states that “Marriage means the legal union of one (1) man and one (1) woman as husband and wife for life or until divorced”. Section "10 GTBC § 505(a). Recognition of Marriages" of the same code states that "The Grand Traverse Band of Ottawa and Chippewa Indians shall recognize as a valid and binding marriage any marriage between a man and a woman, formalized or solemnized in compliance with the laws of the jurisdiction in which such marriage was formalized or solemnized.[25]

Nation with recognition on hold[edit]

Sault Ste. Marie Tribe[edit]

The law of the Sault Ste. Marie Tribe of Chippewa Indians notes that "requirements of the State of Michigan with respect to the qualifications entitling persons to marry within that State's borders, whether now in existence or to become effective in the future, are hereby adopted, both presently and prospectively, in terms of the sex of the parties to the proposed marriage" (Art. 31.104).[26] Michigan does not allow same-sex marriages. However, it was briefly legal before a ruling that stated Michigan's same-sex marriage ban is unconstitutional was stayed. Opposite-sex marriage is recognized by the tribal nation but the law doesn't say whether or not same-sex marriage is recognized or not.[26]

Nations that do not recognize[edit]

Cherokee Nation[edit]

Same-sex marriage is illegal in Cherokee law.[27] After a Cherokee lesbian couple applied for a marriage license, the Cherokee Nation Tribal Council unanimously approved a Constitutional amendment in 2004 defining marriage as between one man and one woman. The couple appealed to the judicial court on grounds that their union predated the amendment, and on December 22, 2005 the Judicial Appeals Tribunal of the Cherokee Nation dismissed an injunction against the lesbian couple filed by members of the Tribal Council to stop the marriage.[28] The couple would still need to file the marriage certificate for the marriage to become legal.

Chickasaw Nation[edit]

Section 6-101.6.A of the laws of the Chickasaw Nation asserts that "Marriage means a personal relation arising out of a civil contract between members of the opposite sex to which the consent of parties legally competent of contracting and of entering into it is necessary, and the Marriage relation shall be entered into, maintained or "abrogated as provided by law". Section 6-101.9 of the same asserts that "A Marriage between persons of the same gender performed in any jurisdiction shall not be recognized as valid and binding in the Chickasaw Nation as of the date of the Marriage".[29]

Navajo Nation[edit]

Same-sex marriage is not valid under Navajo law.[27] It was explicitly prohibited in a nation code amendment from April 22, 2005,[30] which was vetoed by Navajo president Joe Shirley, Jr.[31] That veto was overridden by the Navajo Nation Council.[32]


References[edit]

  1. ^ "Same-sex Oklahoma couple marries legally under tribal law". KOCO. 2013-09-26. Retrieved 2013-10-22. 
  2. ^ Native American tribes challenge Oklahoma gay marriage ban, Al Jazeera, October 22, 2013
  3. ^ Colvilles recognize same sex marriage
  4. ^ "Coquille tribe approves same-sex marriages". Portland, OR: KOIN-TV. August 21, 2008. Retrieved August 21, 2008. [dead link]
  5. ^ Robinson, B.A. (May 5, 2012). "Adoption of SSM by the Coquille Nation of Oregon". Same-sex marriage (SSM) among Native Americans. Ontario Consultants on Religious Tolerance. 
  6. ^ Graves, Bill (August 20, 2008). "Gay marriage in Oregon? Tribe says yes". The Oregonian. Retrieved September 7, 2008 a. 
  7. ^ Graves, Bill (May 27, 2009). "Indian gay marriage law takes effect in Oregon". Oregon Faith Report. Religion News Service. Retrieved January 1, 2010. 
  8. ^ "Santa Ysabel Tribe First in California to Support Same-Sex Marriage". Indian Country Today Media Network. 2013-06-28. Retrieved 2014-06-14. 
  9. ^ 8th US Native American tribe allows same-sex couples to wed
  10. ^ "Council of Michigan Indian tribe OKs gay marriage". Seattle Post-Intelligencer. Associated Press. March 5, 2013. Retrieved March 5, 2013. 
  11. ^ Hubbard, Brandon (March 15, 2013). "Odawa tribe becomes third in nation to allow gay marriage; marries first couple". Petoskey News Register. Archived from the original on March 15, 2012. Retrieved March 15, 2013. 
  12. ^ "Tribe marries same-sex couple". CNN.com. 2013-03-17. Retrieved 2013-06-25. 
  13. ^ Tribal Code, Title XIII Marriage and probate, Chapter 1. Marriage, Section 13.102. Definitions
  14. ^ Mashantucket Pequot Tribal Laws Annotated 2010-2011 Pocket Part
  15. ^ Mashantucket Pequot 2008 Tribal Laws (Titles 1 -23)
  16. ^ POKAGON BAND OF POTAWATOMI INDIANS MARRIAGE CODE
  17. ^ "West Michigan couple have first same-sex wedding in Pokagon Tribal Court". WWMT Newschannel 3. 2013-06-21. Retrieved 2013-06-25. 
  18. ^ Nagle, Matt (2014-07-16). "Puyallup Tribe Recognizes Same-Sex Marriages". Tacoma Weekly. Retrieved 2014-07-21. 
  19. ^ Gardner, Steven (August 1, 2011). "Suquamish Tribe approves same-sex marriage". Kitsap Sun. Archived from the original on August 2, 2011. Retrieved August 2, 2011. 
  20. ^ Tribal Court Code, Chapter 14: Marriage, section 1401 Recognition of marriage and section 1404. "Issuance of marriage licences; qualifications of applications"
  21. ^ Tribal Code, Title 5 Family Law, Chapter 5.1 Domestic relations, sections 5.1.31(1) & 5.1.34
  22. ^ Tribal Code, Title 4 - Domestic relations, Chapter 4.7 Marriage
  23. ^ Family Law Code, Chapter 2. Marriage
  24. ^ WARM SPRINGS TRIBAL CODE BOOK, CHAPTER 331 [www.warmsprings.com/.docs/pg/400/rid/10307/f/331_domrel.pdf DOMESTIC RELATIONS], Section II MARRIAGE,
  25. ^ Tribal Code, Title 10. Children, Families and Elders, Ch. 5. GTB Family Code, §501(e) (page 128 of pdf file) and §505(a) (page 132)
  26. ^ a b "Chapter 31: Marriage Ordinance". Tribal Code. Sault Ste. Marie Tribe of Chippewa Indians. Enacted July 5, 1995. Including Updates Through 2004. 
  27. ^ a b "Oregon tribe to allow same-sex marriages". msnbc.com. August 22, 2008. Retrieved December 31, 2009. 
  28. ^ "Cherokee High Court Rules in Favor of NCLR and Same-Sex Couple" (Press release). National Center for Lesbian Rights. January 4, 2006. Retrieved January 1, 2010. 
  29. ^ "Title 6: Domestic Relations and Families" (PDF). Chickasaw Nation Code. Chickasaw Nation. Amended as of October 1, 2009. Retrieved January 6, 2010. 
  30. ^ Dempsey, Pamela (April 23, 2005). "Navajo Nation officially bans same-sex marriage". The Independent (Gallup, NM). Diné Bureau. Retrieved January 1, 2010. "Same-sex unions are now officially banned on the Navajo Nation. The Navajo Nation Council passed the Diné Marriage Act of 2005 with a 67–0–0 vote on Friday." 
  31. ^ Norrell, Brenda (May 5, 2005). "Navajo president vetoes gay marriage ban". Indian Country Today. Retrieved January 1, 2010. 
  32. ^ "Tribal challenge to same-sex marriage dismissed". Indianz.Com. August 4, 2005. Retrieved January 1, 2010. 

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