Earlier this week, Darren Black Bear and Jason Pickel drew a flurry of media attention when they obtained a marriage license—in the state of Oklahoma. The two men, who are both of Native American descent, wed under tribal law, which permits marriages between any two people regardless of their sex. Yet same-sex marriage remains formally banned under the state constitution of Oklahoma, where the couple wed and resides. So how can their marriage be legal?
Because state law has virtually no bearing on tribal law. According to Professor Robert Anderson, director of the Native American Law Center at the University of Washington, every tribe is a sovereign entity, and states have virtually no civil jurisdiction within tribal territories. There are a few exceptions, but domestic relations isn’t one of them. Oklahoma has absolutely no power to halt the marriage or to keep the tribe from recognizing it. Unfortunately, the reverse is also true: Thanks to Oklahoma’s constitutional amendment banning same-sex marriage (and its fiercely anti-gay governor), Black Bear and Pickel’s union won’t be recognized under state law.
That doesn’t mean, however, that their marriage only exists within the boundaries of the Cheyenne and Arapahoe tribes’ reservation. (The tribes share a single jurisdictional area, but Black Bear and Pickel live miles away, in Oklahoma City.) Thanks to the death of DOMA, the federal government will also recognize their marriage and provide them with a bounty of benefits. When DOMA was in force, it also applied to tribes; despite their general sovereignty, tribes could not compel the federal government to recognize gay marriages among Native Americans. With that roadblock abolished, Black Bear and Pickel should begin receiving federal marriage benefits immediately.
Where else will Black Bear and Pickel’s marriage be recognized? Certainly, states that already recognize same-sex marriage will recognize tribal ones, too. But what about the other 36 states? Here, the current patchwork of marriage laws presents an intriguing ambiguity, says Robert Clinton, a law professor at Arizona State University’s Sandra Day O’Connor College of Law. As a general rule, every state (and the federal government) grants “full faith and credit” to other states’ laws and rulings, as mandated by the U.S. Constitution and federal statute; this duty applies to tribal codes, as well. But in 1939, the Supreme Court recognized a state’s right to ignore another state’s law if it seriously contravened its own—the so-called public-policy exception.
Same-sex marriage undoubtedly violates the public policy of Oklahoma, which outlawed the practice with 76 percent of the vote in 2004. (And Oklahoma, as Anderson notes, is “sophisticated about their modes of discrimination”: Anyone who marries a same-sex couple in violation of the ban is guilty of a misdemeanor.) Yet other states, like New Mexico, treat it more equivocally. If a state neither allows nor forbids same-sex marriage, or if it allows civil unions or domestic partnerships, does the public-policy exception still apply?
“It’s at least arguable,” says Clinton. “The public-policy exception has never been litigated in application to gay marriage,” but it seems possible that tribal gay marriages “should be recognized in most states that don’t have strong public policy to the contrary.”
Although this aspect of American marriage law remains vague for now, it may well be settled in the near future, as more and more tribes accept and even embrace same-sex marriage. Ron Whitener, executive director of the Native American Law Center at the University of Washington Law School, notes that many tribes have been quick to embrace gay rights, especially gay marriage. Homosexuality, Whitener says, has “a cultural presence among traditions of tribes,” and gay people are oftentimes considered “more spiritual” than heterosexuals. There’s also “a certain amount of ceremonial and sacredness about homosexuality among some tribes,” says Whitener,” leading to greater acceptance of gay tribal members.
Not all tribes, of course, are so progressive. Whitener believes that tribes in which Christianity plays a bigger role are more homophobic, while those with less exposure to the Bible are more tolerant of gays. Sometimes, this rift is present within a single tribe. Homosexuality may be accepted by older members, who maintain “ties to the old ways,” and by younger members, who share their generation’s tolerance. But a “middle group,” one that faced significant exposure to outside influence when anti-gay bias was at its strongest, may remain resistant to the trend toward greater tolerance.
It’s unclear exactly how many tribes currently allow same-sex marriages. A handful have formally voted to recognize them; others have outlawed them; some tether their marriage laws to the state’s in which their tribe is located; many do not have a tribal definition of marriage at all. Given the hazy and shifting state of same-sex marriage among the tribes, an increasing number of couples like Black Bear and Pickel are likely to come forward to claim their rights and benefits. And until another momentous ruling clarifies the legal landscape, they’ll have to navigate the current bricolage of bans, laws, and loopholes just to obtain a simple certificate.