Some couples across the US are doing an end-run around state bans on same-sex marriage by getting hitched through Native American tribal authorities. Oklahomans Jason Pickel and Darren Black Bear, for example, will marry on Halloween in the Blaine County city of Watonga after the Cheyenne and Arapaho tribes issued a marriage license for the pair this month.
The loophole comes courtesy of Native American tribal judiciaries’ authority to operate independently of state laws. “We are a sovereign nation and our tribal code is very clear: We do not distinguish gender in our tribal marriage licenses,” Lisa Liebl, spokesperson for the Oklahoma tribes, told 429Magazine. State voters passed a constitutional ban on same-sex marriage in 2004 and the state doesn’t recognize out-of-state marriages either, so Pickel and Black Bear’s marriage won’t qualify them for state benefits. But the state can’t put the brakes on their wedding bells either.
Though some outlets are saying Pickel and Black Bear will be the first such marriage in Oklahoma, Liebl tells 429Magazine that they’re actually the second. Robert Hiram Eastwood and Clayton Prairie Chief Jr. were married on December 12 of last year. A third couple, Benny Straight and Jerry Pate, filed an application a week and a half ahead of Black Bear and Pickel but will be tying the knot after the other couple. At the time of Eastwood and Prairie Chief’s marriage, DOMA barred the federal government from recognizing the union, which means Pickel and Black Bear will at least be the first same-sex Oklahoma marriage to receive some legal benefits from day one.
Marriage rules vary across tribal jurisdictions. Many prominent tribal authorities, including the Navajo, Chippewa, and Cherokee nations, bar same-sex marriage, but Washington’s Suquamish, Oregon’s Coquille, and Michigan’s Potawatomi Band are among those tribes who have issued licenses to same-sex couples. In years past these unions afforded little in the way of legal recognition thanks to DOMA, but now they should qualify for all relevant federal benefits.
However, states without marriage equality are still not required to recognize them (even if the marriage happened within that state), thanks to DOMA’s still-standing article 2, which declares that states and territories have the right to deny recognition of same-sex marriages that originated in other states or territories.