Tribal Laws & Same-Sex Marriage: Theory, Process, and Content

• Main Author: Tweedy, Ann
• Format: Text
• Language: unknown
• Published: SelectedWorks 2015
• Subjects: Indigenous; Indian; and Aboriginal Law; Law; Sexuality and the Law; Leech; Leech Lake; haida; tlingit
• Online Access: https://works.bepress.com/ann-tweedy/2

Although twelve federally recognized Indian tribes are currently known to allow same-sex marriage, comprehensive information on the content of each of these laws and the processes by which they came to be adopted is not available from any single source. This lack of information is due in part to the fact that tribal same-sex marriage laws as we know them today are a relatively new phenomenon. Indeed, seven of the laws were adopted, or began to be interpreted to allow same-sex marriage, in 2013, 2014, or 2015—those of the Pokagon, Little Traverse, Colville, Leech Lake, Puyallup, Central Council of the Tlingit and Haida Indian Tribes, and the Eastern Shoshone and Northern Arapaho. Moreover, some tribal laws that allow same-sex marriage, such as Mashantucket Pequot’s, apparently escaped public notice altogether. Tribal domestic partnership laws are even less well-known and their application to same-sex couples has not been examined by any legal scholar. On the other side of the controversy, at least ten tribes have Defense of Marriage Acts (DOMAs), and many others have marriage laws with sex-specific language that may or may not have been intended to bar same-sex marriage. The content of these laws has not been examined in any comprehensive fashion. Finally, the precedential weight and likely practical effects of the Supreme Court’s decision in United States v. Windsor on tribal law have not yet been analyzed in legal scholarship. This Article addresses all of these issues, making it a unique source of information on, and legal analysis of, tribal law and federal law relating to marriage equality. Based on original interviews and correspondence with tribal members, tribal employees, and members of same-sex couples who have married under tribal law, as well as other sources, this Article concludes that tribal laws allowing same-sex marriage appear to be largely the result of grassroots efforts by tribal members. This pathway to marriage rights contrasts sharply with the early methods for adopting such laws among ...