So: How Sovereign is "Sovereign"? (Sovereign Enough for Gay Marriage?)
In U.S. law, Native American tribal nations are defined as "domestic dependent nations" - in layperson's terms, that's basically "sorta sovereign, but kinda not." Among other things, this means tribes and tribal courts have the power to regulate their members' civil claims or issues - like, say, marriage.
Thanks to the efforts of Kitzen Branting, the Coquille Indian Nation, located in what is now Oregon, just passed a law that sanctions same-sex marriage. Through the marriage, Kitzen's partner Jeni becomes recognized as a full member of the tribe. (In order to marry under Coquille law, one of the two has to be an enrolled member of the tribe, so there's no burgeoning Coquille Wedding B&B business in the offing.)
So here's where it gets interesting.
Generally, the United States recognizes marriages from other sovereign nations and the right of its own citizens to travel between states. Thus, it would be unconstitutional for a marriage to be legal in one state and not in the next, Shammel said. But no one ever has sorted out what that means for tribal sovereignty and marriage because it hasn’t come up, at least not in this way.How sovereign tribes are is, at the very least, a question that has a lot of very contradictory or vague legal answers. (Can you travel outside the U.S., and return, if you are traveling without a U.S. passport but have a passport issued by the Haudenosaunee (Iroquois) Confederacy? What does it mean when a tribe - the Cherokee, or the Pechanga Band of Luiseno Indians - disenrolls some of its members? Do tribal casinos have to adhere to U.S. labor laws?)
Although tribal sovereignty has faced a long process of erosion, tribes have heretofore been considered sovereign enough, at least, to perform marriages (and divorces). But what if they sanction marriages that homophobes in Oregon or the U.S. have declared illegal or undesirable? How much of a challenge does the colonial power of the United States allow before it attempts to once again challenge, or outright deny, tribal sovereignty?
This isn't an issue that's likely to go away. It's been a part of the pre-colonial history of many tribal nations, and it's reflected today by Native people who identify as Two-Spirit. Same-sex marriage came up in the Cherokee Nation (which did not allow it); the Navajo Nation (which has a long history of multiple genders and sexualities so complex that terms like "homosexual" or "heterosexual" simply don't cover it) denied same-sex marriage rights as well. I seriously doubt that's where this discussion is going to end.
“There’s a long history of Native American tribes permitting same-gender couples to marry,” even if unofficially, Minter said. “In the colonial era, European civilization tended to change that. Now tribes are looking at this again.”This is an issue where, most likely, tribal laws will increasingly differ from federal law; whether the U.S. government will then honor even the limited tribal sovereignty it's accepted so far is an unanswered question. Challenging both colonialism and homophobia isn't easy, but it's vitally important - just as it's key to understand that, for tribal nations, these issues may well be inextricably linked in ways that go beyond merely legal status.
posted by miriam @ 10:14 PM
