December 16, 2002
INDIAN TRIBES AND SAME-SEX MARRIAGE
By: Christopher Reinhart, Associate Attorney
You asked if an Indian tribe could adopt a law to allow same-sex marriages.
We cannot give a definite answer to your question because there is no statute or case on this issue. But based on general principles the U. S. Supreme Court has established: (1) it appears that a tribe could adopt a same-sex marriage law that applies to its members, (2) it is not clear if it could do so when only one party to the marriage is a member of the tribe, and (3) it seems unlikely that a tribe could do so when both parties to the marriage are non-members.
A tribe generally has power to adopt legislation affecting its members and a tribe has extensive power over domestic relations among its members. Tribes have the right to make their own rules and be ruled by them and retain many rights of internal self-government, including the power to punish tribal offenders, determine tribal membership, regulate domestic relations among members, and set rules of inheritance for members (Montana v. U. S. , 520 U. S. 544, 564 (1981)).
But the extent of a tribe's power to regulate the conduct of individuals who do not have a connection to the tribe is unclear. Under caselaw, a tribe's ability to legislate over non-members often depends on the activities involved (and their location) and the tribal interests implicated.
In Montana v. United States, the U. S. Supreme Court addressed the extent of tribal legislative power over non-members. In the context of hunting and fishing regulations, the Court ruled that a tribe could regulate hunting and fishing by non-members on land held in trust for the tribe but it could not do so on lands within its reservation that were owned by non-members. The Court made two exceptions where the tribe could have legislative authority: (1) if the non-member had a consensual relationship with the tribe (generally commercial relationships) and (2) when the non-member's conduct threatens or has some direct effect on the tribe's political integrity, economic security, health, or welfare. Other cases before the court addressed tribal legislation in the context of taxation and zoning.
It is unclear how these rules would apply to domestic relations. In adopting legislation allowing same-sex marriages, a tribe's sovereignty and interests would seem strongest when both parties to the marriage are tribal members and weakest when neither party is a tribal member.
As an example of Connecticut tribal legislation on marriage, the Mashantucket Pequot Tribal Code allows for marriage between a man and woman. The scope of the law is then limited by a requirement that both applicants for a marriage license have a socio-economic or cultural tie to the tribe. For purposes of dissolution of marriage, the code limits tribal court jurisdiction to when at least one party is a tribal member.
The U. S. Supreme Court has stated that "Indian tribes still possess those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependent status" (in the context of tribal court civil jurisdiction, U. S. v. Wheeler, 435 U. S. 313 (1978)). It has also stated that tribes cannot exercise power inconsistent with their diminished status as sovereigns (in the context of tribal court criminal jurisdiction, Oliphant v. Squamish Indian Tribe, 435 U. S. 191 (1978)).
Indian tribes have attributes of sovereignty over both their members and their territory. But Congress and the U. S. Supreme Court have limited the tribes' authority over nonmembers. The Supreme Court ruled that tribes have no jurisdiction over nonmember defendants involved in criminal actions in Indian country (Oliphant), but it has not created a clear rule for jurisdiction over nonmembers in civil actions.
Montana v. U. S.
In Montana v. U. S. , the Supreme Court considered a tribe's legislative authority over non-members (450 U. S. 544 (1981)). This case involved the tribe's regulation of hunting and fishing by non-Indians on land owned by non-Indians within reservation boundaries. The Court ruled that "the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe. "
The Court stated that the tribe could regulate activities of non-Indians on tribal trust lands as an important part of tribal sovereignty and could put conditions on the entry of nonmembers and could exclude them altogether. But because the tribe's regulation of nonmembers on non-members' land "bore no clear relationship to tribal self-government or internal relations, the general principles of retained inherent sovereignty did not authorize the tribe to regulate the non-Indian fishing. "
The Court created two exceptions to the rule that the tribe could not regulate non-Indians on land not owned by the tribe:
1. if the non-member enters into a consensual relationship with the tribe (federal courts appear to limit this exception to consensual commercial dealings) and
2. when that non-member's "conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe. "
Recent Supreme Court Ruling
In a recent case, Nevada v. Hicks, the Court considered the Montana test in the context of tribal court civil jurisdiction. This case involved a claim in tribal court by an Indian for property damage and violation of federal constitutional rights against state wardens who conducted a search of his property for evidence of an off-reservation crime (the state wardens acted under a state and a tribal search warrant) (533 U. S. 353 (2001)).
The Court stated that a tribal court's inherent adjudicatory authority is at most as broad as the tribe's regulatory authority regarding non-members. The Court explained that Montana and earlier cases "support the general proposition that the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe. " For nonmembers, the "exercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsistent with the dependent status of the tribes, and so cannot survive without express congressional delegation. " The Court stated that the rule in Montana applies to both Indian and non-Indian land.
The Court stated that ownership of the land was not dispositive in determining jurisdiction but was a factor to consider in determining whether regulating the activities of nonmembers was necessary to protect tribal self-government or to control internal relations. Quoting Montana, the Court stated that a tribe's authority includes what is necessary to punish tribal offenders, determine tribal membership, regulate domestic relations among members, and set rules of inheritance for members. The Court stated that "[t]ribal assertion of regulatory authority over nonmembers must be connected to that right of the Indians to make their own laws and be governed by them. "
Hicks specifically ruled that the tribe did not have authority to regulate state officers in executing process for off-reservation crimes. But it is unclear how broadly it will be interpreted and how it will affect jurisdiction over nonmembers in general.