Reservations Over Marriage Equality

Kate Redburn assesses the state of gay unions among Native American tribes, focusing particularly on the Navajo Nation, which bans same-sex marriage:

So what happens to a gay Navajo person who wants to get married?

If she lives on the portion of the Navajo Nation that overlaps with New Mexico or Utah, she can probably get a marriage license from one of those states on the principle of using state institutions. She and her wife would then be entitled to federal marriage benefits, following the Supreme Court’s finding in United States v. Windsor that DOMA was unconstitutional. If the couple returned to the Navajo Nation, however, the Navajo Nation’s authority would not recognize their marriage, and it’s unclear whether they would still be eligible for federal benefits. The laws in New Mexico and Utah are so new, in fact, that it appears that no Navajo couples have yet tested this approach.

What we do know is that tribal authority is strong enough to allow same-sex marriages on Native lands even when state law prohibits it outright. Take the much-documented union of Darren Black Bear and Jason Pickel, who wed in Oklahoma last October under the jurisdiction of the Cheyenne and Arapahoe Tribal Court despite the fact that gay marriage is banned by the state constitution (although if Judge Terence Kern has his way, Oklahoma’s ban will be thrown out). Of the 562 federally recognized tribal governments within the United States, eight allow gay marriage and just six have banned it outright.