AZ tribal court ruling on same-sex marriage may affect other tribes

The Ak-Chin Indian Community seal. Ak-Chin website.

Since the US Supreme Court’s Obergefell decision, extending marriage equality across the country, many Native American tribes have struggled with the issue. There are 567 tribes in the United States which act as sovereign nations. They are typically not obligated to follow the rules of federal courts. The majority of tribes have not adopted the high court’s ruling on marriage.

That may be on the way to change, after an Arizona tribal court ordered the Ak-Chin Indian Community in the state to recognize same-sex marriages, and the tribe began doing so.

“Following a two-year legal battle believed to be the first of its kind in the nation, a tribal court has ruled that same-sex couples have a fundamental right to marry under the constitution of the Ak-Chin community and the Indian Civil Rights Act of 1968,” the Arizona Republic reported this week.

“The ruling only applies to the tribe, but could provide a legal path for members of other tribes to pursue similar cases.

"’This decision made it clear that the tribal law was unconstitutional under tribal law’ and not just U.S. federal law, said attorney Sonia Martinez, who represented the same-sex couple in the lawsuit.”

The Indian Civil Rights Act of 1968 extends some, but not all of the rights granted in the US Constitution’s Bill of Rights. However, the language in the act goes further than the Bill of Rights, because it guarantees “equal protection of the law”, something the US Constitution guaranteed only with the passage of the Fourteenth Amendment after the Civil War.

"I have no idea if other tribes are going to do the same thing,” Martinez said in the Republic interview. “But I think it at least opens the door."

“Robert Miguel, chairman of the Ak-Chin Indian Community, said in a statement that they would not appeal the ruling.

“Today marks the conclusion of a lengthy but necessary legal exercise — one that respects the rights of tribal members and honors the sacred sovereignty and self-governance of the Ak-Chin Indian Community," Miguel told the Republic.

In Oklahoma, the Cherokee Nation’s attorney general legalized same-sex marriage for the country’s second-largest tribe, in 2016. The Chickasaw and Choctaw nations do not. The Cheyenne and Arapaho tribes do not specify a gender of the participants. Based on that, Darren Black Bear and Jason Pickel applied for and received a marriage license on October 18, 2013, even though Oklahoma did not recognize same-sex marriage until October 2014. See coverage of their 2013 wedding here.

The legal arguments in the Arizona case considered both tribal law and the Indian Civil Rights law, according to the Republic.

“In court, Martinez argued the Ak-Chin tribal court was bound by U.S. Supreme Court rulings on marriage of same-sex couples because the tribal constitution appears to incorporate federal constitutional rights into tribal law.

“Tribal attorneys argued the U.S. Constitution and U.S. Supreme Court rulings don't have to be followed because the tribes are sovereign.

"’As the 2015 U.S. Supreme Court decision legalizing same-sex marriage did not apply to federally-recognized Indian tribes, it was important that our Community follow its own legal process to resolve this question,’ Miguel said in his statement. ‘I am proud this review has been undertaken in a relatively expeditious yet thorough and respectful manner.’

“The court's ruling is based on the opinion of Special Master Robert Clinton, an expert in tribal law who acted as a sort of mediator and investigator in the case and who rejected both arguments, saying that while the tribe is not ‘bound’ by the U.S. Supreme Court rulings on marriage, the rulings do set ‘persuasive precedents’ for establishing individual rights.

See the full Arizona Republic story here.

Copyright The Gayly – October 29, 2017 @ 4:40 p.m. CDT.