After the US Supreme Court ruled in 2015 that state bans on same-sex marriage were unconstitutional, I assumed that it was now legal everywhere within the US. But it turns out that I was wrong because I had not realized that since the tribal lands are sovereign, the US constitution does not apply within their boundaries and eleven of them continue to outlaw such unions
The Navajo and Cherokee Nations, the first and second largest tribes respectively, together have about 600,000 members. The nine smaller tribes that ban gay marriage have another 350,000 members. These tribes all either define marriage as between a man and a woman or explicitly prohibit same-sex marriage, according to the Associated Press (AP).
According to the gay-rights advocacy group Freedom to Marry, at least ten Native American tribes do permit gay marriage. However, this list does not include any of the ten largest tribes according to 2010 U.S. Census Bureau data.
Of the tribes that do recognize same-sex marriage, some have made changes to their marriage laws to include recognition of same-sex couples, while others have adhered to a preexisting policy that tribal marriages be governed by the surrounding state’s marriage laws.
Many other tribes remain neutral, AP reports, neither taking steps to officially recognize gay marriage nor changing the wording of their marriage laws to include or preclude recognition of same-sex couples.
Same sex couples who have married under US law but are prohibited from living together on reservations because of tribal laws preventing unmarried couples from cohabiting have to go through the process of petitioning their tribes to change their marriage laws to conform to the US constitution.
Cleo Pablo married her longtime partner when gay weddings became legal in Arizona and looked forward to the day when her wife and their children could move into her home in the small Native American community outside Phoenix where she grew up.
That day never came. The Ak-Chin Indian Community doesn’t recognize same-sex marriages and has a law that prohibits unmarried couples from living together. So Pablo voluntarily gave up her tribal home and now is suing the tribe in tribal court to have her marriage validated.
This will be a tedious tribe-by-tribe process since there is no over-arching tribal authority.