Three of Five Tribes don't recognize same-sex marriage

Dec. 23—Three of the Five Tribes do not recognize same-sex marriage despite conflicting language in their constitutions.

Choctaw, Muscogee (Creek) and Seminole Nations do not recognize same-sex marriage under tribal codes, but each tribe's constitution contains similar language guaranteeing tribal members' rights as American citizens.

President Joe Biden on Dec. 13 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.

The Five 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.

"The Choctaw Nation of Oklahoma is committed to equality in the workplace, and we provide benefits to all employees' spouses," Choctaw Nation Public Relations Director Randy Sachs said after contacted by the News-Capital. "We treat all married couples the same way regarding tribal benefits, and we are reviewing our tribal codes, ordinances and acts to ensure they comply with the federal Respect for Marriage Act."

The Five Tribes were removed from their homes across the Southeast and forced to relocate to what became Oklahoma in the 1830s along the Trail of Tears. Now, the Five Tribes comprise about half of Oklahoma's population and more than 40% of the land on their reservations.

The Choctaw Nation of Oklahoma's Marriage Act states "A marriage between persons of the same gender performed in another tribe, a state, or in any other forum shall not be recognized as valid and binding in the Choctaw Nation of Oklahoma."

Section 1 of the Choctaw Nation's Bill of Rights states "nothing in the Constitution shall be interpreted in a way which would diminish the rights and privileges that tribal members have as citizens of the Nation, the State of Oklahoma, the United States of America, or under any Act of the Congress of the United States."

After the News-Capital reached out to the Choctaw Nation about the language in the tribe's code, a spokesperson for the tribe said the code was being reviewed.

The Muscogee (Creek) Nation and the Seminole Nation of Oklahoma's Constitutions also state rights given to tribal members by the U.S. will not be "abridged" or affected "adversely" while prohibiting same-sex marriages.

Request for comments from the Muscogee (Creek) and Seminole Nations were not returned.

Biden's action repealed the 1996 Defense of Marriage Act that set a strict federal definition for marriage, specifying a union between one man and one woman.

If a state does not follow the provisions in the Act, the bill authorizes the U.S. Attorney General to bring civil action in federal court against the state.

The new act however does not stop any states from refusing to issue marriage licenses to same-sex couples if the 2015 U.S. Supreme Court decision in Obergefell v. Hodges, that legalized same-sex marriage nationwide, is ever overturned.

Langugage 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 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.

The Cherokee Nation — the 440,000-member northeast Oklahoma tribe that is the nation's largest Native American tribe — prohibited same-sex marriages in 2004 after passing the Cherokee Nation Marriage and Family Act.

But the prohibition was reversed in 2016 after then-Cherokee Nation Attorney General Todd Hembree issued an opinion the Cherokee Nation Constitution protected their tribal member's rights "to marry, establish a family, raise children, and enjoy the full protection of the Nation's marital laws."

"The Constitution affords these rights to all Cherokee citizens, regardless of sexual orientation and the Cherokee Nation, or any subdivision thereof, must recognize validity-issued civil unions, same-sex marriages, and same-sex domestic partnerships from other jurisdictions for purposes of administering services, programs, benefits, or any variation thereof," Hembree's opinion stated.

Hembree's opinion was issued more than a year after the U.S. Supreme Court in 2015 issued its landmark Obergefell v. Hodges decision, legalizing same-sex marriage nationwide.

Cherokee Nation's code now states that "every person who shall have attained the age of 18 years shall be capable in law of contracting marriage."

A Cherokee Nation representative did not respond to CNHI Oklahoma's request for comment.

The Chickasaw Nation's tribal code prohibited same-sex marriage as of 2019 — although the Chickasaw Constitution states "nothing in this constitution shall be interpreted in a way which would change the individual rights and privileges the tribal members have as citizens of the Chickasaw Nation, the State of Oklahoma, and the United States of America."

Chickasaw Nation Office of Tribal Justice Administration Chief Counsel Debra Gee told CNHI Oklahoma in 2019 the tribe was "working to resolve" the conflicting tribal laws. Gee told the News-Capital last week the code was amended.

"The Chickasaw Nation Code has been amended in a manner that recognizes federally recognized rights, including those in the recently signed Respect for Marriage Act," Gee said.

Contact Derrick James at djames@mcalesternews.com