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Tribal Marriages Might Trump Same-Sex Ban By States

Many governments do not recognize a tribal marriages (or same sex marriages) formed under tribal law.
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When Darren Black Bear and his fiance, Jason, wanted to get married in 2013, the state of Oklahoma didn't recognize same-sex marriages, so the two turned to the Cheyenne and Arapaho Tribes.

Though Oklahoma did not allow same-sex marriages at the time, the Concho, Oklahoma-based tribe doesn't address gender in its marriage code, which allowed the two to commit to each other in front of their family, friends and supporters as Darren's father, Rev. Floyd Black Bear, officiated.

"For those gay and lesbian tribal members, it is a lot easier to be wed on tribal land around their loved ones who accept them," Darren Black Bear said. "Just drive to Concho to the tribal court and get one. With some state lawmakers trying to create roadblocks in the way the state is handling issuing marriage licenses to same-sex couples, it's a lot easier to go through tribal court."

Darren Black Bear said he and Jason simply drove to the tribal courthouse to obtain the marriage license. Both men presented their state-issued IDs, while Darren presented his certificate of Indian blood card and paid for the license. At the time, the two men's marriage on tribal land made worldwide headlines, a same-sex marriage in a state known for its deeply conservative views.

A year later, however, a federal court in Oklahoma sided with same-sex couples who sued for the right to marry. When the U.S. Supreme Court declined to review the case, it paved the way to same-sex couples to get married in Oklahoma.

Though some tribes recognize same-sex marriage, not all states recognize a marriage conducted in tribal court, said Philip Baker-Shenk, a partner at the Holland and Knight law firm based in Washington D.C., which specializes in Native American law.

"As a matter of comity, or legal reciprocity, you would think a state government should, in all fairness, recognize a marriage formed under tribal law," he said. "Just as a state government, in all fairness, expects a tribal government to recognize a marriage formed under state law. Unfortunately, many states have not followed the golden rule of comity when it comes to tribal law."

Baker-Shenk said some state governments "don’t seem to think that what is sauce for their goose is sauce for a tribal gander. Especially when a gander marries a gander or a goose marries a goose.”

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Still, he said, in tribes with a clan or another traditional system of laws under which property and culturally-valued objects are given or bequeathed and domestic relations are regulated, traditional tribal marriages can have enduring cultural value within the community.

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The Central Council Tlingit and Haida Indian Tribes of Alaska recently developed a marriage and divorce statute, which allows the tribal president or the tribal court's chief justice to conduct a marriage between two people who are 18 years or older, one of whom must be a tribal citizen, regardless of gender. The couple must file an application with the tribal court and there is a three-day waiting period, said Hon. Debra O'Gara, chief justice.

O'Gara said it was important for Central Council president Richard Peterson and the workgroup that the marriage statute be inclusive for all tribal members and not discriminate against anyone. "It is a firmly held belief that the tribal court must be available to provide judicial services to all tribal citizens to the best of our ability and as funding allows," she said.

Alaska, however, does not recognize same-sex marriages, O'Gara noted, so the state would likely not recognize such a marriage. However, she added that the state also refused to recognize a paternity order issued by the tribal court, so the tribe sued in Superior Court and won. The State appealed the order and the state Supreme Court is now deciding the case.

Because the tribe has yet to conduct a same-sex marriage, O'Gara said it's unclear whether the state would recognize the union or not. "We also do not know if the state of Alaska would recognize the marriage of an opposite-gender couple married by the tribe," she added.

Still, O'Gara said she believes public opinion supports strengthening tribal courts across the country and policymakers are working to catch up. Until they do, the benefits to getting married by the tribe, specifically in the case of same-sex couples, is an open public acknowledgement of the couple's relationship, she said.

"Having one’s own community and government take this position is vital to a person’s sense of belonging and acceptance and, more importantly, one’s desire to fully participate as a whole person within the tribal community," she added.