Lawyers: Disputes over gay marriage could hit tribal courts

By : Wire Report
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TULSA, Okla. (AP) – Some Oklahoma attorneys say tribal courts may soon see challenges to same-sex marriage restrictions following the U.S. Supreme Court’s ruling in June that legalized the unions nationwide.

The Supreme Court’s decision doesn’t have a direct effect on tribal governments, which operate under their own constitutions, said attorney general D. Michael McBride for the Seminole Nation and general counsel for the Comanche Nation and Thlopthlocco Tribal Town.

But he told The Journal Record that he anticipates the number of challenges to increase. Attorney Courtney R. Jordan said the Supreme Court’s ruling may weigh heavily upon tribal judges evaluating their own marriage laws.

In a 5-4 decision in late June, the high court determined marriage was a fundamental right protected by the Constitution’s due process and equal protection clauses. The ruling came two years after the court struck down parts of the Defense of Marriage Act established by Congress in 1996, which blocked individuals in same-sex unions from some federal benefits and other programs.

At least 10 tribal governments, including the Cherokee, Muscogee (Creek), Chickasaw and Seminole nations in Oklahoma, have adopted laws similar to the Defense of Marriage Act.

“I can tell you that Indian Country is pretty deeply divided over same-sex marriage,” McBride said. “A lot of tribes are very traditional and they believe that in their traditions, one of the purposes of marriage is procreation and making families.”

Jordan said the Supreme Court’s June ruling may spur equal rights arguments under the Indian Civil Rights Act.

But a tribe’s sovereign immunity may protect it from internal court rulings in some cases, making political actions necessary, said Klint A. Cowan, a civil litigator who practices in the field of Indian law.

“I think it’s going to vary widely from tribe to tribe,” he said. “My understanding is there are some tribes that have a historical view of gay partnerships that make it easier for them to recognize gay marriage. But for other tribes in Oklahoma and elsewhere, tribal leaders may not be supportive of the idea. If that’s the case, some things may not change in those tribes for many years.”

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