Same-sex marriage in tribal nations in the United States

The Supreme Court decision in Obergefell v. Hodges that legalized same-sex marriage in the states and most territories did not legalize same-sex marriage on Indian reservations. In the United States, Congress (not the federal courts) has legal authority over tribal reservations. Thus, unless Congress passes a law regarding same-sex marriage that is applicable to tribal governments, federally recognized American Indian tribes have the legal right to form their own marriage laws.^[1] As such, the individual laws of the various United States federally recognized Native American tribes may set limits on same-sex marriage under their jurisdictions. At least ten reservations specifically prohibit same-sex marriage and do not recognize same-sex marriages performed in other jurisdictions; these reservations remain the only parts of the United States to enforce explicit bans on same-sex couples marrying.

Most federally recognized tribal nations have their own courts and legal codes but do not have separate marriage laws or licensing, relying instead on state law. A few do not have their own courts, relying instead on CFR courts under the Bureau of Indian Affairs. In such cases, same-sex marriage is legal under federal law. Of those that do have their own legislation, most have no special regulation for marriages between people of the same sex or gender, and most accept as valid marriages performed in other jurisdictions. Many Native American belief systems include the two-spirit descriptor for gender variant individuals and accept two-spirited individuals as valid members of their communities, though such traditional values are seldom reflected explicitly in the legal code.^[2] Same-sex marriage is possible on at least forty-nine reservations with their own marriage laws, beginning with the Coquille Indian Tribe (Oregon) in 2009. Marriages performed on these reservations were first recognized by the federal government in 2013 after section 3 of the Defense of Marriage Act (DOMA) was declared unconstitutional in United States v. Windsor.^[3] These were statutorily affirmed by the Respect for Marriage Act, which formally repealed DOMA.

^ Julian Brave NoiseCat (July 2, 2015). "Fight For Marriage Equality Not Over On Navajo Nation". Huffington Post. Retrieved July 2, 2015.
^ "The 'two-spirit' people of indigenous North Americans". The Guardian. October 11, 2010.
^ "Tribal Laws & Same-Sex Marriage: Theory, Process, and Content" (PDF). Archived from the original (PDF) on June 20, 2016. Retrieved December 8, 2017.

[1] Julian Brave NoiseCat (July 2, 2015). "Fight For Marriage Equality Not Over On Navajo Nation". Huffington Post. Retrieved July 2, 2015.

[2] "The 'two-spirit' people of indigenous North Americans". The Guardian. October 11, 2010.

[3] "Tribal Laws & Same-Sex Marriage: Theory, Process, and Content" (PDF). Archived from the original (PDF) on June 20, 2016. Retrieved December 8, 2017.

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