When the Supreme Court ruled on Obergefell v. Hodges this June and legalized marriage equality nationwide, one group wasn’t universally granted the same rights: Native Americans living on tribal lands.
Tribal sovereignty, or the principle that federally recognized tribes “possess a nationhood status and retain inherent powers of self-government,” is at the core of this conflict. Because tribes are recognized as independent governments, the United States Constitution does not apply within their borders, and they are not obligated to adopt federal laws, including marriage equality.
Among the 567 federally recognized tribes in the United States, approaches to the question are varied. Some expressly permit same-sex marriage, some have marriage laws tied to those of the state where they are located, and some have gender-neutral laws that neither explicitly allow nor forbid same-sex marriage. Only a few, including the Navajo Nation, have express bans on same-sex marriage. Where same-sex marriages are not recognized, benefits such as insurance are also often denied to the couples in question.
The reasons behind tribes’ refusal to recognize and legalize same-sex marriages are many. From a cultural standpoint, same-sex marriages sometimes do not fit into social mores regarding gender roles. Other reasons include the influence of outside religions, as well as a tendency for issues like alcoholism and high suicide rates to rank higher on the priority list for tribal lawmaking bodies.
A large number of LGBTQ Native Americans have been affected, including Cleo Pablo, a member of the Ak-Chin Indian Community outside Phoenix, Arizona. Pablo and her partner were married in Arizona once the state legalized marriage equality. Her hope was to move their family, comprised of the couple and their children, onto her home on the tribal lands. However, because the Ak-Chin do not recognize same-sex marriage and forbid unmarried couples from cohabitation, they were unable to do so. In response, Pablo voluntarily renounced her tribal home and is now suing the Ak-Chin in tribal court for the recognition of her marriage. “I want what every married couple has,” she said.
LGBT advocacy groups have largely avoided pressing tribes to adopt marriage equality laws, understanding that it is not their place. I do believe that the entire LGBT community has a responsibility to one another (as does indeed the whole of humanity), but here, it is up to LGBT Native Americans to lead the way. Many, like Pablo, have taken on the challenge. Alray Nelson of the Navajo Nation is also an outspoken advocate for marriage equality within his tribe, although he feels that current support from Navajo lawmakers is insufficient to effect change.
There are, of course, tribes where marriage equality was easily adopted, such as the Central Council Tlingit and Haida Indian Tribes of Alaska. It is important to acknowledge that opinions on marriage equality vary from tribe to tribe and person to person, just as they do within the United States. We can only hope that more LGBT Native Americans will be successful in pushing change within their own, valuable, sovereign communities.
Los Angeles Daily News