In the summer of 2015, marriage equality advocates celebrated the Supreme Court’s decision in Obergefell v. Hodges, which struck down state prohibitions on same-sex marriage.The Court found that “[t]he right of same-sex couples to marry . . . is part of the liberty promised by the Fourteenth Amendment.” Two years earlier, the Court had struck down parts of the federal Defense of Marriage Act (DOMA), finding that the federal government could not discriminate against same-sex married partners. With these two decisions, the Court ensured that the marriages of same-sex couples would be recognized by the federal government and in all fifty states.
Largely left out of the celebration, however, were the members of nearly a dozen Indian tribes that continue to prohibit same-sex marriage either expressly or by implication. For these couples, their tribe’s ban on same-sex marriage remains untouched by the dictates of both Obergefell and Windsor. Instead, whether a tribe permits same-sex marriage rests on tribes’ inherent authority to govern their own internal affairs. Acting pursuant to their inherent authority, many tribes were leaders on the issue of marriage equality, legalizing same-sex marriage when most states prohibited such marriages. Other tribes, however, like the Navajo Nation, instituted their own laws (tribal DOMAs) that, like the federal and some state laws, limited marriages to “one man and one woman.” As a consequence of tribal DOMAs, a married Indian couple may have their marriage recognized by their state government and by the federal government, but not by the government of perhaps their most important community—their tribe.
Suzianne D. Painter-Thorne, Fraying the Knot: Marital Property, Probate, and Practical Problems with Tribal Marriage Bans, 85 Brook. L. Rev. (2020).