Sovereignty and Same-Sex Marriage – Native American Tribes

Given the sovereignty of Native American tribes within the United States and the fact that the tribes are allowed to do certain activities that are illegal for the general United States public (i.e. smoking peyote), marriage also falls under this category. However, it still does not grant the couple federal benefits since there is no such thing as “same-sex marriage” under federal law.

It boggles my mind how discrimination so clearly and blatantly in violation of equal protection laws continues to thrive. I don’t understand what the government gains from creating and treating a special category of peoples as different and subhuman. Wouldn’t acknowledging same-sex marriage give more power and legitimacy to the state as well as prolong the life of the dying institution of marriage? Keeping people in the ‘waiting rooms of history’ where they await the chance to live their lives freely, has the potential of creating communities in conflict with the flow of government. Of course the ‘handouts’ such as ‘civil unions’ and hospital visitation rights, serves to keep these communities formed in the ‘waiting rooms of history’ in relative harmony with the state. And the case in discussion is just another one of those ‘handouts.’

At the request of a lesbian couple, the Coquille Indian Tribe on the southern Oregon coast has adopted a law recognizing same-sex marriage.

Tribal law specialists say this appears to be the first time a tribe has actively sanctioned such marriages. Most tribal law ignores the issue. The Navajo and Cherokee tribes prohibit same-sex marriages.

The impact of the tribe’s action, first reported by The Oregonian newspaper, appears limited to its small reservation, given Oregon and federal prohibitions against gay marriage. The couple planning their wedding at the tribal plankhouse don’t seem to care, saying they seek only tribal recognition and equal tribal treatment.

“For me, the important thing wasn’t about rights or the benefits,” 25-year-old Kitzen Branting told the Eugene Register-Guard. “I just wanted the tribe to say ‘Yes, we recognize that you are just as important as any other tribe member, and we will treat you and your spouse as we treat all tribal members.’ “

Legal scholars said that tribes do have authority over domestic relations among tribal members, but Congress may have the ultimate say-so.

“It can do anything good or anything bad to the tribes and the Indian people as citizen Indians,” said Robert Miller, who teaches Indian law at the Lewis & Clark College School of Law in Portland.

He said the tribes have all the rights they have historically held unless Congress takes them away or the tribes give them up by treaty.

“Congress is the 900-pound gorilla in the corner,” Miller said. He said it is a vague and generally unknown loophole that can remove tribal powers.

Bill Funk, who teaches constitutional law at Lewis & Clark, compared the Coquille action to that of states that recognize same-sex marriages even though the federal Defense of Marriage Act of 1996 does not and says other states and tribes needn’t do so.

“Under federal law, these are not marriages,” said Funk.

He said the lack of federal recognition could make the couple ineligible for marriage-related Social Security and other federal benefits.

He compared the tribe to Massachusetts, which recognizes same-sex marriages although the federal government does not

Oregon voters amended the state constitution in 2004 to prohibit gay marriage. But with its sovereignty recognized by the federal government, the tribe is not bound by that. Oregon does recognize civil unions.

A same-sex couple from the Cherokee nation in Oklahoma applied for a marriage license there in 2004 and had a ceremony, then the tribe outlawed same-sex marriages after the fact.

At least two tribal lawsuits challenging the marriage have been thrown out and a third is in process, said Shannon Minter, an attorney for the San Francisco-based Center for Lesbian Rights, who represents the couple.