Many same-sex couples across the country rejoiced when the U.S. Supreme Court made its landmark decision to make same-sex marriage legal. However, there is a loophole that some couples are finding themselves dealing with. Because Native American reservations are considered sovereign territories, the U.S. Constitution does not apply. This leaves it up to the individual tribal governments to decide whether or not to allow same-sex marriage.
Whether this presents a problem varies according to the specific tribe. There are 567 federally recognized Native American tribes in the United States, and each of these falls somewhere on the spectrum of allowing, banning or having no specific decisions made about same-sex marriage. One possible reason for these differences is how the tribes view gender roles, gender identification and outside religions.
Couples affiliated with tribes that do not specifically allow same-sex marriage may find themselves still facing a very steep uphill battle to have their marriages legally recognized. While most national advocacy groups have respected the tribes’ rights to establish their own regulations on same-sex marriage and domestic relationships, some individual tribal members and couples are pushing their governments for change.
Some tribes have begun tying their domestic relations laws to the associated state law, while others have “gender-neutral” laws that can make it difficult for couples to be certain whether they can marry according to tribal law or not. It’s important for those facing these issues to have a clear understanding of both the federal and state laws currently in place as well as the provisions set forth by their specific tribe before deciding on their next steps.
Source: U.S. News, “Gay marriage is now legal nationwide, but tribal lands an exception to the rule,” Felicia Fonseca, Nov. 27, 2015