Navajo Equality? Gay Marriage and the Limits of Tribal Sovereignty

Navajo Equality? Gay Marriage and the Limits of Tribal Sovereignty

In 2005, the Navajo Nation passed its own version of the Defense of Marriage Act called the Diné Marriage Act. Navajo LGBT activists have recently reignited their struggle to overturn the law, hoping to capitalize on decisions legalizing gay marriage in Utah and New Mexico late last year. In the process, they have raised long-standing questions about the reach of the U.S. legal system onto Native lands.

Supporters of the Navajo Equality campaign (Marriage Equality for the Navajo Nation/Facebook)

Since Massachusetts legalized gay marriage in 2004, the popular media have been beating the drum of progress as successive states receive court judgments and pass statutory amendments of their own. Despite the ongoing backlash against gay marriage—with many states rushing to amend their constitutions to make marriage off limits for gay couples—the general consensus holds that gay marriage will be legal in most states fairly soon. After last year’s two Supreme Court decisions on the subject, some commentators have gone as far as to proclaim that national marriage equality is a foregone conclusion.

It was in keeping with this widespread gay marriage cheerleading that U.S. news sources trumpeted the renewed efforts of Navajo activists to legalize gay marriage on the Navajo Nation. The Navajo Nation covers a large swath of the American Southwest, including most of northeastern Arizona and significant territory in southern Utah and western New Mexico. All told, the space is roughly equal to that of West Virginia, and is entirely contained within the borders of the contiguous United States. But the Navajo Nation is not a state; it is a sovereign nation with its own citizens, government, and laws. In looking at the fight for gay marriage on Navajo land, U.S. news coverage has overlooked the unique legal status of Native lands, and has thus failed to illuminate the particular challenge facing Navajo activists.

When the State Supreme Court effectively legalized gay marriage in New Mexico in December 2013, Navajo queer activists took note. Back in 2005 when President Bush was saber-rattling about a constitutional amendment to ban same-sex marriage, the Navajo Nation passed its own version of the Defense of Marriage Act (DOMA) called the Diné Marriage Act, which explicitly excluded same-sex, polygamous, and familial marriages from legal recognition on Navajo lands. The Diné Coalition for Cultural Preservation, a progressive alliance of academics and activists, successfully lobbied then-Navajo Nation President Joe Shirley Jr. to veto the law, but political will in support of the Diné Marriage Act was strong enough to override the veto.

Last summer, Navajo activists regrouped and re-branded in hopes that the political tides had turned in their favor. The Coalition for Navajo Equality, with support from leading marriage equality organizations in New Mexico and Arizona, hopes to capitalize on decisions legalizing gay marriage in Utah and New Mexico late last year.

Although the Navajo Nation is a sovereign entity with independent jurisdiction, the political debate in the United States inevitably has an impact on Navajo politics. As Alray Nelson, the Coalition’s lead organizer, put it, what happens in nearby states and in the national conversation “affects the conversation here on Navajo; that’s why its important for us to start talking about this right now.” In his words, “we understand and support the fact that the Navajo Nation needs to address this issue on its own like the states have.”

As long as same-sex marriage remains banned on the Navajo Nation, Navajo LGBT couples will continue to test the overlapping jurisdiction of Navajo government and U.S. federal authority.

It’s true that tribal laws like the Diné Marriage Act are enforceable unless repealed by the tribal council, but the U.S. legal system doesn’t regard the Navajo Nation, or any Native tribe, the same way it does other sovereigns like foreign countries. As long as same-sex marriage remains banned on the Navajo Nation, Navajo LGBT couples will continue to test the overlapping jurisdiction of Navajo government and U.S. federal authority, raising long-standing questions about the reach of the U.S. legal system onto Native lands.

For starters, it’s not clear which laws apply to which people and when. Since 1924 all Native Americans have also been U.S. citizens, although New Mexico didn’t extend them the vote until 1962. Generally speaking, tribal and federal laws apply on Native lands, while state laws do not. According to Gregory Ablavsky, Sharswood Fellow in Law and History at the University of Pennsylvania, things get considerably more complicated when you start to look at how courts interpret state jurisdiction on Native lands within their boundaries. In some cases, states are entitled to collect taxes from Native lands, and Native people can avail themselves of state institutions, like courts, to file suits under state law.

So what happens to a gay Navajo person who wants to get married? If she lives on the portion of the Navajo Nation that overlaps with New Mexico or Utah, she can probably get a marriage license from one of those states on the principle of using state institutions. She and her wife would then be entitled to federal marriage benefits, following the Supreme Court’s finding in United States v. Windsor that DOMA was unconstitutional. If the couple returned to the Navajo Nation, however, the Navajo Nation’s authority would not recognize their marriage, and it’s unclear whether they would still be eligible for federal benefits. The laws in New Mexico and Utah are so new, in fact, that it appears that no Navajo couples have yet tested this approach.

What we do know is that tribal authority is strong enough to allow same-sex marriages on Native lands even when state law prohibits it outright. Take the much-documented union of Darren Black Bear and Jason Pickel, who wed in Oklahoma last October under the jurisdiction of the Cheyenne and Arapahoe Tribal Court despite the fact that gay marriage is banned by the state constitution (although if Judge Terence Kern has his way, Oklahoma’s ban will be thrown out). Of the 562 federally recognized tribal governments within the United States, eight allow gay marriage and just six have banned it outright.

Nevertheless, Native couples who wed under circumstances like those in Oklahoma are still subject to state laws as soon as they leave Native territory. In the United States, issuance of marriage licenses has long been the purview of state authorities, and generally speaking the full faith and credit clause of the Constitution means that couples who opt for a wedding in Las Vegas are still married when they get home to California. There are notable exceptions, however: since at least 1887, the Supreme Court has supported a state’s right not to recognize marriages from other states if the terms of the marriage violate local statutes. As the New York Times reported in 2004, the Supreme Court has never used the full faith and credit clause to require a state to recognize a marriage it didn’t want to. This “public policy doctrine” allowed some states to deny marriage benefits to interracial couples from elsewhere in the country, and remains in use with regard to gay marriages. Until the Supreme Court makes a federal ruling as it did on interracial marriages, this patchwork approach will remain in place. The current situation boils down to federal civil courts accepting same-sex marriage without explicitly protecting against sexual orientation- or gender identity-based discrimination. Unfortunately, authorities disagree on whether states would grant full faith and credit to Native marriage licenses held by gay couples if the state had no clear public policy opposing them.

This question leads to a fundamental contradiction at the heart of Native American constitutional law. The Supreme Court has affirmed both tribal sovereignty and federal plenary power over Indian affairs, but according to Ablavsky, there hasn’t been a real test of the limits because Native authorities enjoy relatively high de facto autonomy. A core contradiction endures: the federal government maintains that its laws supersede Native laws, and that it has total jurisdictional authority over Indian affairs, while also insisting that the relationship between Native nations and the U.S. government is one of sovereign-to-sovereign.

Recent experience on the Navajo Nation suggests that such affirmations of tribal sovereignty are not honored in the ways we might expect between sovereigns. Domestic violence between non-Navajo men and Navajo women has been a persistent issue on the Navajo Nation, but until recently the Navajo tribal police had no authority to prosecute non-Native men for their crimes. The renewal of the Violence Against Women Act in 2013 amended that provision, and beginning in 2015, tribal courts will have authority in domestic violence cases involving a non-Native partner. The Coalition for Navajo Equality hopes to improve enforcement. Alray Nelson told me that “what we’re doing as a coalition is to let members of our tribe know we’re not only here to fight for marriage equality; we’re also here to encourage safe and supportive and open places that are open to the LGBTQ community.”

Unfortunately, the fact that legal authority to protect LGBT Navajo and Navajo women from violence is derived from the federal government itself casts a shadow over the very concept of tribal sovereignty. What does it mean, as legal historian Matthew Fletcher wrote in a provocative 2006 article, that “the Supreme Court has often held that Indian tribes do not have certain vestiges of their inherent sovereign authority”? It seems to raise the possibility that the Supreme Court could strip away parts of tribal authority however it wants, regardless of the relevant tribal laws. Even if the Navajo Coalition is successful in this summer’s push to legalize gay marriage on the Navajo Nation, the larger questions about the precise limits of federal power remains unanswered.

Kate Redburn studies the legal history of sexuality in the United States and Latin America. Her writing has appeared in the New Inquiry, Salon, and Jacobin, where she is a contributing editor. She wishes to thank Greg Ablavsky for his help in the research for this piece.

Lampton | University of California Press Linebaugh