DOMA is not a tribal issue
Tribes that defy the Defense of Marriage Act put the sovereignty of all tribes at risk, when the same can be accomplished without defying federal law.
by Rod Van Mechelen
It's very frustrating to read the articles praising Kitzen Branting (Coquille) and Heather Purser (Suquamish) for persuading their respective tribes to defy the federal Defense of Marriage Act, or DOMA.
It's frustrating not because I oppose same-sex marriage. Nor because I think that governments should not be involved in the marriage business. Nor even because so much is made of the fact that in both cases the petitioner risked rejection when most of us have endured decades of violence, rejection and discrimination simply for being Indian.
It's about individual tribes putting the sovereignty of all tribes at risk by defying federal law to grandstand on a mainstream political issue.
Political grandstanding
Passing a tribal ordinance to grant marriage licenses to same-sex couples is grandstanding because the stated purpose can be accomplished without defying federal law. And it puts tribal sovereignty at risk by inviting a federal lawsuit that would further erode the sovereignty of all tribes.
As tribes fall under federal jurisdiction, we are subject to federal laws, including the Defense of Marriage Act (DOMA).
Section 3 of DOMA defines marriage as "a legal union between one man and one woman." When a tribe defies Section 3 of DOMA, they invite a federal lawsuit. Not from the Obama Administration, which holds that Section 3 is unconstitutional. But generations of injustice should have taught us that it is imprudent to rely on the goodwill of one administration to bind the actions of future administrations.
There are times when a tribe needs to take a stand that may put the sovereignty of all tribes at risk. Fighting to enforce treaty rights, for example. But this is not such a case.
"Equal Marriage" not about marriage
The "equal marriage" issue is not about marriage, even though both sides of the political debate lie and say it is.
Same-Sex couples in Washington state have been getting married since the 1970s. The real issue is the marriage license. Even here, the issue is not about real inequality, since, gay or straight, we all have precisely the same rights.
For this to be a fundamental question about equal rights, the law would have to grant marriage licenses to heterosexual people wanting to enter into same-sex marriages, but discriminate against homosexual people by not allowing them to do the same.
Absurd, but true.
The law may be unreasonable, it may be irrational, but it is equal and it does honor the traditions of the dominant culture.
One might be tempted to argue that, as Indian tribes place such high value on respecting traditions, we ought not to intrude in this issue for no other reason than to respect the dominant culture's traditional views and values with regard to marriage.
One might be tempted to so argue, but such a one would not be me. The risk to tribal sovereignty is bridle enough to lead me to the conclusion that tribes need to exercise restraint in this matter.
Moreover, the same purpose can be achieved without violating federal law.
"Traditional" tribal marriage license?
The purpose of the marriage license is to confer legal rights and impose legally binding responsibilities. In other words, it's a contract. Our tribal ancestors had and enforced contracts, of course, but there was no such thing as a traditional tribal marriage license. Our tribal ancestors simply did not do that. There was no need.
Being personally opposed to the state issuing a marriage license to anybody, I would argue that there is no legitimate reason today, either: adults enter into contracts all the time without the necessity of first being licensed to do so. Cell phone contracts, for example. The way things are going, a time may come when we will be required to obtain a license before signing a contract to obtain cell phone service, but not yet.
Nor, I would argue, should two consenting adults who wish to be consorted be required to first obtain permission from the state vis-à-vis a marriage license.
Principle of "close socio-economic ties"
Getting back to the point.
As every tribal council knows, benefits can be extended to non-member partners (married or not, same-sex or not) by a tribal resolution under the principle of "close socio-economic ties." Tribes can enact a simple law mandating that when a couple, that includes a tribal member, is married or consorted in a religious or civil ceremony, certain benefits will be conferred upon their partner without respect to the sex of the partner.
In this way, tribes can confer legal recognition on same-sex marriages without defying DOMA, and without putting the tribal sovereignty of all tribes at risk.
It may not be as much fun. It won't grab national headlines. It won't garner awards and recognition from mainstream, non-Indian organizations. But it will protect and preserve the best interests of the tribes, their members, and Indian Country. And that should be more important.
Untsa Uq'n Naway
I see you.
Rod
