Native Americans' Views of Same Sex Marriage
Just as the United States debates whether or not to end the exclusion of same-sex couples and their families from marriage, Native American tribes are addressing the same issue.
Native American tribes are federally recognized sovereign nations — thus they can create their own policies around marriage for same-sex couples. Native American tribes have historically accepted LGBT/Two-Spirit same-sex relationships, and in 2009, the first tribe in the nation, the Coquille Tribe of Oregon, approved the freedom to marry for same-sex couples. Since then, several other tribes have extended marriage to same-sex couples to same-sex couples, with several proactively approving resolutions in favor of the freedom to marry and others newly realizing that their tribal code does not reference gender and thus, permits marriage between same-sex couples.
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 Suquamish tribe (Washington) since 2011 and 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. 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 for same sex marriages
- Cheyenne and Arapaho Tribes: 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 in 2013. Theirs was the third such license issued by the Tribes.
- Confederated Tribes of the Colville Reservation: 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.
- Coquille Tribe: In 2008 the Coquille Tribe legalized same-sex marriage, with the law going into effect in May 2009. 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. 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. On May 24, 2009, the first same-sex couple—Jeni and Kitzen Branting—married under the Coquille jurisdiction.
- Leech Lake Band of Ojibwe: 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.
- Little Traverse Bay Bands of Odawa Indians: The Little Traverse Bay Bands of Odawa Indians tribal council voted to recognize same-sex marriages on March 5, 2013. The Tribal chairman signed into law the legislation on March 15, 2013, 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.
- Pokagon Band of Potawatomi Indians: 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. They issued their first such marriage certificate to a male couple on June 20, 2013.
- Santa Ysabel Tribe: On June 24, 2013, the Santa Ysabel Tribe announced their recognition of same-sex marriage, becoming the first tribe in California to do so.
- Suquamish Tribe: 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.
Nations that do not recognize same sex marriage
- Cherokee Nation: Same-sex marriage is illegal in Cherokee law. 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. The couple would still need to file the marriage certificate for the marriage to become legal.
- Chippewa does not recognize same sex marriage.
- Sault Ste. Marie Tribe: 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." Michigan does not allow same-sex marriages.
- Chickasaw Nation: Section 6-101.9 of the laws of the Chickasaw Nation asserts that "No Marriage will be recognized between persons of the same sex."
- Iowa Tribe of Oklahoma: As of 2004, same-sex marriage is not recognized by the Iowa Tribe of Oklahoma.
- Muscogee Creek Nation: As of 2004, same-sex marriage is not recognized by the Muscogee Creek Nation.
- Navajo Nation: Same-sex marriage is not valid under Navajo law. It was explicitly prohibited in a nation code amendment from April 22, 2005, which was vetoed by Navajo president Joe Shirley, Jr. That veto was overridden by the Navajo Nation Council.
Source: Freedom To Marry