Why Obergefell should not impact American Indian tribal marriage laws.

INTRODUCTION

Catalyzed by Massachusetts's legalization of same-sex marriage in 2003, the debate surrounding marriage equality surged to the forefront of this country's public discourse, culminating in the Supreme Court's momentous decision in Obergefell v. Hodges. (1) Prior to Obergefell, thirty-seven states and the District of Columbia had legalized same-sex marriage. (2) Most of these jurisdictions instituted same-sex marriage judicially. (3)

While Obergefell might have quelled the same-sex marriage debate in state and federal circles, discussions continue to surge within Native American nations. (4) Prior to Obergefell, a number of individual tribes had definitively taken sides, either affirmatively allowing or banning same-sex marriage among their members. (5) With same-sex marriage becoming the law of the land in the United States, some tribes "could become islands of nonconforming law" in which the union is still banned. (6) In the wake of Obergefell, Native sovereigns continue to institute laws permitting and laws prohibiting same-sex marriage. (7)

The issue of same-sex marriage, therefore, continues to raise important questions related to American Indian nations' status as third sovereigns--within the United States, but separate from the federal and state governments. (8) In an age in which "forgetting the third sovereign is endemic," (9) it is worth remembering the special status of the 566 federally recognized tribal nations (10) whose members are simultaneously citizens of the United States, of their individual state, and of their tribal nation. (11)

This Note explores what Obergefell means for members of American Indian nations, and it argues that Obergefell should not constrain tribal governments. Part I briefly recounts Obergefell, including the Court's reasoning and language that might be pertinent for tribal sovereigns. Part II briefly surveys the status of tribal same-sex marriage laws to reveal the pluralism amongst the Native nations that have definitively decided the issue. Part III discusses how these tribes' decisions are rooted in tradition and self-determination, two indeterminate concepts that contribute to Native pluralism on the issue. Part IV explores the interplay of tribal, state, and federal law, unpacking tribal nations' special status as "domestic dependent nations," (12) and what this means for tribal marriage laws that accord or contrast with the laws of other jurisdictions. Finally, Part V argues that Obergefell should have only a limited, indirect impact on tribal marriage laws, and discusses why the "should" in this sentence and this Note's title is both predictive and normative.

1. OBERGEFELL

   On June 26, 2015, the Supreme Court ruled that the US Constitution guarantees same-sex marriage as a fundamental right under the due process and equal protection clauses of the Fourteenth Amendment. (13) The Court answered affirmatively both of the questions before it: "whether the Fourteenth Amendment requires a State to license a marriage between two people of the same sex," and "whether the Fourteenth Amendment requires a State to recognize a same-sex marriage licensed and performed in a State which does grant that right." (14)

   Justice Kennedy's majority opinion first described the history of societal views on marriage and same-sex relations, stressing that "the annals of human history reveal" the dignified status that marriage bestows. (15) The majority implied that the concept of dignity surrounding marriage approached cultural universality, citing Confucius, Cicero, and other "references to the beauty of marriage in religious and philosophical texts spanning time, cultures, and faiths, as well as in art and literature in all their forms." (16) Still, the Court emphasized that marriage is dynamic, having evolved throughout time and space, and that these changes "have strengthened, not weakened, the institution of marriage." (17)

   The first and primary foundation upon which the Court based its decision was the Fourteenth Amendment's due process clause. (18) The Court noted that it had invalidated parts of the Defense of Marriage Act just two years prior. (19) Next, the Court explained that the Fourteenth Amendment protects "fundamental rights," including the right to marriage. (20) This right encompasses same-sex couples who wish to wed. (21) The Court emphasized that the due process clause guarantees marriage rights to same-sex couples because marriage "is a keystone of our social order." (22) Because society structures social support and benefits around marital status, preventing a committed couple from accessing marriage has a destabilizing and stigmatizing effect. (23) Importantly, the Court explained that "[t]he right to marry is fundamental as a matter of history and tradition, but rights come not from ancient sources alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era." (24)

   Next, the Court moved to a shorter discussion about how its decision adheres to the Fourteenth Amendment's equal protection clause. (25) Suggesting that due process rights and equal protection rights are related and sometimes overlap, the Court held that laws banning same-sex marriage deny equal protection to same-sex couples. (26)

   The Court then described how a wait-and-see approach would perpetuate inequality and continue to stigmatize same-sex couples. (27) Finally, the Court recognized that its holding obviated the need to answer the question about marriage recognition. (28) After Obergefell, all states must now recognize validly performed same-sex marriages from other states. (29)

   Chief Justice Roberts wrote an especially critical dissenting opinion, accusing the majority of rewriting history. (30) Roberts wrote that the majority undermined "a State's decision to maintain the meaning of marriage that has persisted in every culture throughout human history." (31) Like the majority, Roberts also named historical societies, but he claimed that a restrictive view of marriage was universal, citing "the Kalahari Bushmen and the Flan Chinese, the Carthaginians and the Aztecs. Just who do we think we are?" (32) He argued that the Court's decision creates a slippery slope to polygamy, which--unlike same-sex marriage--at least has some historical precedent, according to Roberts. (31) Roberts also criticized the majority for its "conclusory" equal-protection analysis. (34)

   Although it may have dismayed Chief Justice Roberts and other onlookers, Obergefell will go down as a landmark case and a historic step in the LGBTQ-rights movement. But despite Obergefell's sweeping effect, the litany of societies and historical cultures invoked by both sides, and even the decision below in the Sixth Circuit, (35) the Court's Obergefell opinion did not reference Native Americans.

2. TRIBAL SAME-SEX MARRIAGE LAWS

   The federal government has virtually limitless legislative authority over American Indian sovereigns, though tribes retain broad authority, inherent in their preconstitutional sovereignty, over domestic relations. (36) Thus, tribal sovereigns continue to vary widely in their legal treatment of same-sex marriage despite Obergefell bringing consistency to all fifty states.

   While some have unequivocally taken sides, the vast majority of the 566 federally recognized tribal sovereigns have laws or policies that are difficult to discern for a number of reasons. One reason is that many tribes "do not always make their laws public" or otherwise available to nonmembers. (37) Another complication is that news and online sources do not always provide reliable information about tribal laws. (38) Additionally, not all tribes issue marriage licenses, so for many tribal nations, the matter of same-sex marriage may never arise. (39) Still other tribal sovereigns reserve the right to perform marriages and govern domestic relations, but tether their marriage requirements to state-law parameters. (40) Now that all states must issue licenses to same-sex couples and recognize same-sex marriages from other states, (41) it is unclear whether tribes in this category will institute same-sex marriage for their members. (42) Still, at the publication of this Note, at least sixteen tribal sovereigns allow for or support same-sex marriage, and at least eleven affirmatively ban it. (43)

   All in all, even though only a fraction of the 566 federally recognized tribes have taken a stance on same-sex marriage, the tribal legal landscape is already characterized by pluralism. Thus, even if Obergefell may have settled the same-sex marriage debate among states, tribal sovereigns will continue to grapple with the issue themselves, and the legal landscape will remain in flux in Native jurisdictions.

   1. Tribes that Allow or Support Same-Sex Marriage

      At least sixteen tribal sovereigns support and/or issue licenses for same-sex marriages: the Cheyenne-Arapaho, (44) the Colville, (45) the Confederated Tribes of Grand Ronde, (46) the Coquille, (47) the Keweenaw Bay Indian Community, (48) the Leech Lake Band of Ojibwe, (49) the Little Traverse Bay Bands of Odawa Indians, (50) the Mashantucket Pequot, (51) the Oneida Tribe of Indians of Wisconsin, (52) the Pokagon Band of Potawatomi Indians, (53) the Puyallup, (54) the Iipay Nation of Santa Ysabel, (55) the Shoshone-Arapaho Tribes at Wind River, (56) the Siletz, (57) the Suquamish, (58) and the Tlingit and Haida. (59)

      The Coquille Indian Tribe is regarded as the first tribe to allow same sex marriage, passing legislation in 2008. (60) The law took effect in 2009. (61) The Tribe, whose lands are located in Washington and Oregon, enacted the law at a time in which these states had not yet legalized same-sex marriage. (62) After the Coquille, other tribes followed suit, with the bulk of tribes (Cheyenne-Arapaho, Colville, Leech Lake Band of Ojibwe, Little Traverse Bay Bands of Odawa Indians, Pokagon Band of...