Muscogee Nation commitee denies bill recognizing same sex marriages

Feb. 22—An Eastern Oklahoma tribal committee rejected a bill last week that would have amended the tribe's marriage code to recognize tribal members in same-sex marriages.

Members of the Muscogee (Creek) Nation Council's Committee on Business, Finance, and Justice voted 1-3 Feb. 15. The vote rejected a bill would have removed language in two sections of the Muscogee (Creek) Nation's code that specifies who may marry in the tribe and the marriages that are recognized by the tribe.

"I've gotten a lot of calls this week over this legislation," Rep. Dode Barnett, who sponsored the bill, said during the meeting. "I only got two calls that were against, and those conversations were very respectful."

Section A of the code states "Persons aged eighteen years and older. Any unmarried person of the age of eighteen or upwards and not otherwise disqualified is capable of contracting and consenting to marriage with a person of the opposite sex. The language of "with a person of the opposite sex" would have been struck from the section.

Section G of the tribal code states "same gender marriages prohibited. A marriage between person of the same gender performed in another Indian Nation or state shall not be recognized as valid and binding in the Muscogee (Creek) Nation" and would have been removed in its entirety.

Barnett said the amendments to the tribal code would bring the tribe to the point of not infringing on the rights afforded to tribal citizens by the U.S. Constitution.

Article 2, Section 2 of the tribe's Constitution states, "This Constitution shall not abridge the rights and privileges of individual citizens of the Muscogee (Creek) Nation enjoyed as citizens of the State of Oklahoma and of the United States of America."

During discussion, Rep. Sandra Golden said one of the questions she was asked by some tribal members was "Why are you doing this."

"I just explained that," Barnett replied. "So that we can offer people Constitutional rights.".

Golden said she also received a number of calls from "churches and ceremonial grounds" stating that they did not want the bill to pass and brought up issues of confidentiality and how churches would react to same-sex marriages and the potential of being forced to accept the marriage.

"They didn't see that it was something we should be involved in," Goldan said.

Rep. Nelson Harjo said the Muscogee people have a tradition that has been followed and a culture "we've always practiced."

"When you look at our Constitution, it doesn't matter for us as individuals to what we do outside of our society," Harjo said. "If they are going to get married in the state they can or whetever state allows that to happen."

Harjo said any members who enter a same-sex marriage can still enjoy the benefits of tribal citizenship,

"As long as you're a Creek citizen, you are protected by our law. You are still allowed to do the different things that we do as a people and as an individual," Harjo said before stating the tribe has bigger issues "on a bigger scope" than the internal fighting that accepting the bill would cause.

Tribal Rep. and Second Speaker Thomasene Yahola Osborn also stated she received a lot of phone calls regarding the legislation and said after she saw the bill on the agenda, she asked her community at a meeting their thoughts on the matter and how she should vote.

"Out of 25 community members in attendance, all voted no, except two" Osborn said.

Osborn said she was asked during her first campaign for representative if she supported same sex marriages and that her answer was no at the time and her answer now "was the same."

"Should a same sex couple want to marry, they have the option to marry within the state of Oklahoma," Osborn said. "If this bill passes through the committee, I can not and will not support this bill when it becomes before the full council."

The Muscogee (Creek) Nation is only one of two of The Five Tribes that do not recognize same sex marriages. Each of the tribes — the Cherokee, Chickasaw, Choctaw, Muscogee (Creek) and Seminole Nations — maintain tribal sovereignty, but each of their constitutions state tribal members' rights as American citizens will not be abridged.

Tribal codes in the Chickasaw, Choctaw, and Cherokee Nation were amended to accept same sex-marriages through actions made by tribal Attorney Generals and court systems since the U.S. Supreme Court's 2015 landmark decision in Obergefell v. Hodges, legalizing same-sex marriage nationwide.

President Joe Biden in 2022 signed the Respect for Marriage Act to require states and the federal government to recognize interracial and same-sex marriages as legal in the jurisdiction where they took place.

Language in the Act says it only applies to states "the District of Columbia, the Commonwealth of Puerto Rico, or any other territory or possession of the United States," and does not include Native American Tribal Nations.

Article 1, Section 8, Clause 3 of the U.S. Constitution, states only Congress has the power "to regulate commerce with foreign nations, and among the several states, and with the Indian tribes" which according to the National Congress on American Indians, means Native American tribes are recognized by the U.S. government the same as a state or a foreign nation.

The Federal Bar Association states that language in the Constitution guarantees Native American tribes the power and right to determine their form of government, define citizenship, and make and enforce laws such as the recognition of same-sex marriages.