Ann Tweedy on Tribal Laws & Same-Sex Marriage

Our own Ann Tweedy has posted her very interesting and relevant paper, “Tribal Laws & Same-Sex Marriage: Theory, Process, and Content,” on SSRN.

Here is the 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.

Same-Sex Marriage Quandaries

In light of the 6th Circuit’s recent stay on the district court’s opinion overturning Michigan’s law barring same-sex marriage and the governor’s decision not to recognize marriages issued before the stay, I’ve been wondering what effect all of this has on the laws of the Sault Ste. Marie Tribe. My question stems from the fact that the Sault Ste. Marie Tribe has taken the interesting approach of tying its own marriage laws to those of Michigan. Specifically, the Tribe’s law states that:

“All requirements of the State of Michigan with respect to the qualifications entitling persons to marry within that State’s borders, whether now in existence or to become effective in the future, are hereby adopted, both presently and prospectively, in terms of the sex of the parties to the proposed marriage, and the age of the parties.” Sault Ste. Marie Tribe of Chippewa Indians Tribal Code, ch. 31, § 31.104.

Putting on my Conflict of Laws hat, the stay seems like a procedural matter, so same-sex marriage appears to be currently allowed in Michigan although no one can enter into such a marriage under state law due to the stay. Does that mean that same-sex marriage is allowed under the laws of the Sault Ste. Marie Tribe? And did the governor have the power to declare that marriages entered into before the stay would not be recognized, given that he acknowledges their legality? What effect if any did his statement have on the law of the Tribe, given that it has chosen to incorporate Michigan law on this issue? Unfortunately, at this point I have more questions than answers.