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Supreme Court ruling on same-sex marriage could impact tribes

Wednesday, April 29, 2015

A view of the U.S. Supreme Court. File Photo © Indianz.Com

The U.S. Supreme Court heard arguments on Tuesday in a series of same-sex marriage cases whose outcome will have an impact nationwide.

But what about Indian Country? The court's decision may not force tribes to recognize same-sex marriage but it could put pressure on them to do so.

“There may be some political pressure on tribes if the Supreme Court rules in favor of same sex marriage,” Elizabeth Ann Kronk, the director of the Tribal Law and Governance Center in Kansas, told Indian Country Today. “But we prefer to maintain our ability to decide our own policies regardless of the state legislation.”

Law professor Ann Tweedy expressed a similar view in a post on Turtle Talk. "As for what a pro-same-sex marriage decision from the Court would mean for tribes, the short answer is that it wouldn’t be binding but most likely would be seen as strong persuasive authority in most tribal courts," she wrote today.

At least 22 tribes recognize same-sex marriage, according to Wikipedia. The Suquamish Tribe in Washington was one of the first in Indian Country to do so.

“It was very humbling, and I felt very honored,” Heather Purser, a young tribal member who asked her council to recognize same-sex marriage in 2011, told Indian Country Today. “It was completely in flow with the values I’ve always observed with the Suquamish people.”

But the Navajo Nation and the Cherokee Nation, the two biggest tribes in terms of membership, outlaw same-sex marriages. So do several other large tribes, including the Seminole Nation, the Chickasaw Nation, the Muscogee Nation and the Osage Nation, all in Oklahoma.

The Osage Nation, however, might be changing its stance. A tribal lawmaker introduced a bill last week to recognize all marriages, The Tulsa World reported.

In June 2013, the U.S. Supreme Court struck down a section in the Defense of Marriage Act that did not allow the federal government to recognize same-sex marriage. The justices did not rule on a different section that allows tribes and states to ignore marriages that may not be legal in their jurisdictions.

The cases that were heard yesterday could determine whether states can be forced to recognize all marriages. But since the dispute is linked to the Fourteenth Amendment to the U.S. Constitution, which does not apply to the actions of tribal governments, it may not affect the holdouts in Indian Country.

A ruling is expected in June.

Get the Story:
A Foot in Two Worlds: The Battle for Gay Marriage on Tribal Lands (Indian Country Today 4/28)
Argument analysis: Justice Kennedy, hesitant but leaning (SCOTUSBlog 4/28)
No clear answers on same-sex marriage: In Plain English (SCOTUSBlog 4/28)
A view from the Courtroom, Same-Sex Marriage Edition (SCOTUSBlog 4/28)
Supreme Court hears arguments in historic gay-marriage case (The Washington Post 4/29)
Gender Bias Issue Could Tip Chief Justice Roberts Into Ruling for Gay Marriage (The New York Times 4/29)