Tribes and Same-Sex Marriage in Columbia Human Rights Law Review

My article on tribal laws relating to same-sex marriage has just been published in Columbia Human Rights Law Review. It delves into the twelve tribal laws that allow same-sex marriage and also looks at tribal DOMAs, tribal domestic partnership laws, and other tribal laws that bear on same-sex marriage. Finally, it addresses the somewhat limited effects Windsor and the future Supreme Court decision in Obergefell are likely to have on tribal DOMAs.

Thanks to everyone who provided information on tribal laws. I couldn’t have done it without you!

Ann Tweedy on Tribal Gun Regulation

Ann Tweedy has published “Indian Tribes and Gun Regulation: Should Tribes Exercise Their Sovereign Rights to Enact Gun Bans or Stand-Your Ground Laws?” (SSRN) in the Albany Law Review.


This essay examines tribal laws relating to guns. It then discusses whether tribes whose values accord with either gun bans or stand-your-ground laws would be well-served to enact such laws. It concludes that enforcement difficulties and related problems make both types of laws very costly and that tribes are likely to be best served by enacting more modest firearm regulations and/or protecting the right to bear arms (without expanding the right to self-defense). The essay also concludes that the risks tribes face in the area of firearms regulation in particular contravene Congress’ intent in enacting the Indian Civil Rights Act.

Review of poetry chapbook

Here’s a review poet Mary Kasimor wrote about my poetry chapbook, White Out (Green Fuse Poetic Arts 2013).  The poems are about white privilege and race, and a few of them talk about being a non-Native person and working for tribes.

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.

Ann Tweedy on the Madison County v. Oneida Indian Nation II Cert Petition

Here, from the Faculty Lounge. An excerpt:

In the Counties’ brief in support of the petition for certiorari, they claim that a holding in the Tribe’s favor on the disestablishment question would contravene the “justifiable expectations” of non-Indians in the area, who have come to expect to be exposed to little if any tribal presence or power.   As I explained in a recent article, the Supreme Court routinely makes similar assumptions in favor of non-Indian residents and past land purchasers in tribal jurisdiction and reservation diminishment cases.  See generally Ann E. Tweedy, “Unjustifiable Expectations:  Laying to Rest Allotment-Era Settlers,” 36 Seattle U. L. Rev. 129 (2012).  There are numerous problems with this type of assumption, however, and it can be hoped that the Solicitor General will raise some of them in his response.

The Oneida settlement in this matter is bogged down; see here and here.

In related news, former Oneida chairman Jake Thompson passed away last month: “Jake Thompson, who started Oneida land claim, dies.”

Ann Tweedy on Allotment Era Literature and Whether there were Justifiable Expectations about the End of Tribes

Ann Tweedy has posted her forthcoming paper, “How Allotment-Era Literature Can Inform Current Controversies About Tribal Jurisdiction and Reservation Diminishment,” on SSRN. It is forthcoming in the University of Toronto Quarterly.

The abstract:

In a previous article, Unjustifiable Expectations: Laying to Rest the Ghosts of Allotment-Era Settlers, I argued that a review of historical newspaper articles showed that the expectations of non-Indians who purchased lands on Sioux reservations in South Dakota during the allotment-era as to tribes’ disappearing were not justifiable because they were rooted in an expectation of continued injustice towards tribes. I thus concluded that the Supreme Court should not presume that these allotment-era settlers had justifiable expectations when it decides reservation diminishment and tribal jurisdiction casesThis article addresses whether allotment-era literature pertaining to Sioux peoples can similarly help inform such cases. Although the results were more mixed, particularly with non-Indian-authored fiction, the works of Native writers such as Luther Standing Bear, Charles Eastman, and Zitkala-Ša were helpful in explicating the injustices in the federal government’s land dealings with tribes, as was a work by non-Native historian Doane Robinson.

Ann Tweedy on Indian Self-Defense and the Second Amendment

From the crit:

Ann E. Tweedy


Here is the introduction:

This article examines the history of self-defense in America, including the right to bear arms, as related to Indian tribes, in order to shed light on how the construction of history affects tribes today. As shown below, Indians are the original caricatured “savage” enemy that white Americans believed they needed militias and arms to defend themselves from. Since the early days, others have ably documented that the perceived enemies have multiplied to include African-Americans, immigrants, and the lower classes. But this has not meant that Indians have been let off the hook. Instead, they not only remain saddled with whites’ nightmare images of their savagery, but they continue to be punished for the popular perception of them in very concrete ways. Specifically, they are repeatedly and increasingly denied the right to govern on grounds of their untrustworthiness, and it is entirely possible that the lawlessness on Indian reservations has continued as a result of this very racialization.
This article first examines evidence that the historical meaning of self-defense in America (including that of the Second Amendment) was predicated largely on the premise that European, especially English, colonists needed to defend themselves against “savage” Indians. The article then argues that the cultural myth of white America’s need to defend itself against Indians obscures the fact that Indians who engaged in armed conflicts with the United States or the colonies were, in many instances, actually defending themselves and their homelands from white aggression and encroachment on the lands they owned and had been using for centuries.
The article next argues that this self-defense mythology and the oppressive history that it obscures have had important historical consequences for tribes and continue to have concrete consequences for tribes today. These continuing consequences are largely due to the fact that tribes today continue to be viewed as “savage” in the popular imagination and by Supreme Court Justices. The article further argues that such consequences can be understood as a deprivation of the right to self-defense in a figurative sense.
More specifically, as scholars such as Robert Williams have documented, the Supreme Court implicitly relies on this racialized characterization to deny tribes their sovereign powers. Thus, despite the fact that federal and state governments no longer have statutes and rules in place that deny Indians the right to carry guns, because tribes continue to be punished for their past efforts to defend themselves, in a very real sense Indians today lack the right to self-defense. Furthermore, the Supreme Court’s continual abrogation of tribal sovereign rights render tribes and the individuals living on reservations, both Indian and non-Indian, virtually defenseless against everything from predatory lending to violent crime. As a result, the depictions of tribes as savages are depriving tribes and Indians of their right to self-defense in a figurative sense on a macroscopic level. Additionally, America’s cultural understanding of tribes as warlike savages who perpetrated aggressions on innocent white colonists may well be working to subconsciously motivate the federal government to turn a blind eye to the horrific levels of violent crime that plague Indian reservations in the United States.
This article concludes that, as a nation, we must make an honest attempt to reckon with this checkered history and that, ultimately, we need to reevaluate both key Indian law precedent and the right to self-defense embodied in the Second Amendment. At a minimum, Indians’ and tribes’ constitutional rights must be protected prospectively, both in the context of self-defense as traditionally understood and more widely. Moreover, limitations on tribal jurisdiction are, in many cases, grounded on notions of savagery and should be regarded as inherently suspect. Finally, as a society, we must question all of our assumptions about tribes and Indians.

ILPC Event–Charles Wilkinson to Speak on Monday

Please come hear Charles Wilkinson speak about his new book, The People are Dancing Again: The History of the Siletz Tribe of Western Oregon.  Ann Tweedy will be providing commentary.  Lunch will be served around 11:30, with the speakers starting at noon in the Castle Board Room.

Ann Tweedy on Indian People and the Right to Self-Defense

Ann Tweedy has posted “How the Tentacles of America’s Racialized History Eviscerate Indian Tribes’ Right to Self-Defense” on SSRN. Here is the abstract:

This article looks at tribal actions of defending their homelands in colonial and early American history and argues that their actions in self-defense were popularly perceived as acts of aggression, which in turn led to their being defined as ignoble savages in caselaw and in society generally. This imputation of savagery continues to harm tribes because, as the scholar Robert Williams has argued, the cases defining them as “savages” and denigrating their sovereign rights are still cited to support abrogations of tribal sovereignty. Thus, although the language of savagery usually is not itself cited, the cases, and the racialized ideas that they embody, which can be traced to tribes’ early acts of self-defense, continue to be used against tribes.

The article first examines historical evidence of tribes engaging in acts of self-defense in order to expose the fallacy of the portrayal of tribes as savages. It then examines the use of the imagery of savagism in Supreme Court and other caselaw and discusses recent cases that rely on the earlier cases containing this imagery and that abrogate tribal rights. The goal is to expose the popular understanding of tribal roles in early American history as erroneous and thereby reveal the baselessness of the language of savagery. This, in turn, brings to light the injustice of continuing to rely on cases that portray tribes as savages. Once this racism comes to be more widely understood and these racialized precedents are rejected, the older cases will no longer be used in contemporary opinions to deprive tribes of their remaining sovereign rights. Thus, tribes will no longer be punished for past acts of self-defense.

I’ve had a chance to read an earlier draft of this paper. Very interesting!