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

62 Pages Posted: 12 Jan 2014 Last revised: 14 Aug 2015

See all articles by Ann E. Tweedy

Ann E. Tweedy

University of Tulsa College of Law

Date Written: July 17, 2014

Abstract

In 1996, Congress, in enacting the federal Defense of Marriage Act (DOMA), took the somewhat surprising step of explicitly including tribes within its purview. The legislative history is silent as to the decision to explicitly include tribes, and, at the time of DOMA’s passage, it does not appear that any tribe was seriously examining the issue. Since then, however, there have been many developments among tribes on this issue, including enactment of laws permitting same-sex marriage and enactment of prohibitions on same-sex marriage. Nonetheless, generally speaking, the issue does not seem to be a priority among tribes to the same extent it is a priority for states and the federal government.

In 2013, the Supreme Court struck down section 3 of the DOMA, which concerns the federal definition of marriage, as a violation of equal protection and due process. In doing so, it left the constitutionality of section 2, which pertains to tribes’ and states’ recognition of out-of-jurisdiction marriages, uncertain.

This article presents the post-DOMA developments in tribal law as to same-sex marriage, explaining the different tribal approaches to the issue, and then examines the processes by which tribal laws on same-sex marriage, particularly those explicitly permitting same-sex marriage, have been enacted. Finally, this article examines the possible effects that United States v. Windsor will likely have on tribal laws and suggests that tribal courts apply Windsor as persuasive authority under the Indian Civil Rights Act unless there is significant historical evidence as to a lack of openness to same-sex relationships or LGBT identities within that particular tribe. Finally, it discusses the reasons that laws on same-sex marriage may be less of a priority for tribes than for the other sovereigns in the United States. This article is the only comprehensive examination of tribal same-sex marriage laws since the issue gained serious momentum among tribes in 2011 and 2012, and it is the first to address the potential effects of Windsor on Indian tribes.

Keywords: same-sex marriage, Indians, tribes, gay marriage, sexuality, Defense of Marriage Act, Windsor, DOMA, Indian Civil Rights Act, ICRA, equal protection, due process, liberty, marriage, civil rights, marriage equality, colonialism, discrimination, heteronormativity, Obergefell, queer theory

JEL Classification: I30, J12, J70, J71, J78

Suggested Citation

Tweedy, Ann E., Tribal Laws & Same-Sex Marriage: Theory, Process, and Content (July 17, 2014). Columbia Human Rights Law Review, vol. 46, p. 104 (2015). Available at SSRN: https://ssrn.com/abstract=2377817 or http://dx.doi.org/10.2139/ssrn.2377817

Ann E. Tweedy (Contact Author)

University of Tulsa College of Law ( email )

3120 E. Fourth Place
Tulsa, OK 74104
United States

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