Article

Indigenizing Equality

Indigenizing Equality

M. Alexander Pearl & Kyle Velte

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Cleo Pablo is a citizen of the Ak-Chin Tribal Community. She lives on the Ak-Chin Indian Reservation, located within the geographical boundaries of Maricopa County within the state of Arizona. Under the Ak-Chin Constitution, she qualifies for enrollment in the Ak-Chin Tribe—in other words, she is eligible for tribal citizenship and has all the rights and privileges that go along with it. Among those benefits are tribally funded housing, food stipends, household services, educational scholarships, and perhaps health care. Cleo Pablo is a lesbian. She has a partner, Tara Roy, a non-Indian. Like all other couples, they wish to live together and have their relationship confirmed under the laws of the sovereign under which they live—in this case, the Ak-Chin Indian Community. However, Ak-Chin law mandates that marriage exist only between a man and a woman. Furthermore, Ak-Chin law requires that couples living together in tribal housing on the reservation be married. Accordingly, Ms. Pablo and Ms. Roy are unable to be legally married in their community and, therefore, will never have the full rights and privileges provided to similarly situated married heterosexual couples under the current legal regime. This inequality, in many ways, mirrors the state of affairs that predominated in some areas of the United States prior to 2015, when the Supreme Court handed down its decision in Obergefell v. Hodges.

We argue that marriage equality could become the rule of law in all Indian Tribes just as it has in the United States in one of three ways: (1) through imposition by Congress, (2) through a federal court mandate, or (3) through the recognition of marriage equality by the tribes themselves. Below, we address each of these possible avenues to marriage equality. The discussion of these three alternatives highlights the tension that frames the question of marriage equality in Indian Country: individual liberty and equality, the right to marry for everyone, and a broader iteration of tribal sovereignty. We believe that this tension would best be navigated through the third avenue for marriage equality—recognition of same-sex marriage by tribes themselves. This approach, which we term “indigenizing equality,” would be both efficient and have the significant positive impact of redoubling the concept that tribal communities are self-governing entities worthy of political and legal deference by the United States.

A broader historical and political context is necessary to fully frame the questions this Article considers. Discrimination and inequality are deeply embedded in the history of this country. Past struggles are reiterated through the lives of minority groups and leaders. For example, actors within the civil rights movement, the women’s movement, and the LGBTQ rights movement continue to defend the idea that liberty and the pursuit of happiness frame the foundation of U.S. sovereignty. These movements have sought restrictions on the authority of government to limit personal and political freedoms desired by members of non-male, non-White, and non-heterosexual groups. Thus, concepts of liberty and equality anchor both national identity and legal existence in the United States. This Article, in turn, focuses on a continuing and parallel struggle for liberty shielded from governmental reach. The playing field for this particular struggle, however, is not a U.S. jurisdiction. Rather, the locus is Indian Country. As nations—albeit of a different kind and character—Indian tribes are facing the same challenges that the United States has faced time and time again.

Tribal sovereignty and federal law have a long-standing and complex relationship. Here, we address the question: what is the effect of Obergefell—and the resulting changes to federal marriage law—on the modern expression of tribal sovereignty through tribal governmental interactions with LGBTQ individuals and families? The U.S. Supreme Court’s recent decision in Obergefell v. Hodges foregrounds that question, as it held that same-sex couples have a fundamental right to marry. The history of relations between the indigenous nations of this continent and the various European nations that colonized them necessarily colors and informs any treatment of this question. The survival of indigenous peoples, cultures, and nations is a testament to the strength and connectedness of tribal communities. Colonization—the violent imposition of Western values upon indigenous peoples—is legally, historically, and socially well documented within both Western and indigenous societies. Accordingly, an essential question addressed at the outset of this Article is whether bringing marriage equality to those tribal communities currently opposed to it would constitute further colonization of indigenous values. The answer depends on how marriage equality comes to Indian Country. We propose that tribal sovereignty would best be served if tribes themselves recognize marriage equality internally, rather than if marriage equality were imposed by Congress.

Recent polling indicates that, as of May 2016, nearly two-thirds of Americans support marriage equality, although pockets of resistance continue to exist throughout the United States. Tribal communities represent one such area of resistance. For example, one of the largest tribal governments, the Navajo Nation, has passed tribal statutes that expressly foreclose tribal members from the right to same-sex marriage. At the same time, some tribal communities recognized and performed marriages for LGBTQ couples well before Obergefell was decided, and thus before marriage equality existed in many states. As other commentators have noted, the resistance or acceptance of marriage equality among tribal communities loosely tracks the underlying political views of the state in which the tribe is located. We propose that this pattern reflects a continued colonization—or colonization amnesia.

Tribal resistance to marriage equality creates three simultaneous harms: (1) the denial of rights to LGBTQ tribal citizens; (2) the downplaying, if not complete erasure, of the deep and long-standing tribal tradition of recognizing and celebrating two-spirit people in many tribal communities; and (3) the reinforcement of the view that tribal communities are backward, out-of-touch, and not worthy of respect as modern sovereign nations. Furthermore, the U.S. legal and normative landscape surrounding marriage equality has changed in significant ways in the run-up to and aftermath of Obergefell, suggesting that the time may be ripe for Congress to intervene where tribal governments deny equal rights to LGBTQ tribal citizens. Therefore, the time for tribal nations to (perhaps preemptively) indigenize equality is now.

This Article proceeds in two Parts. Part I discusses the historical and enduring importance of tribal sovereignty through a description of the foundation of Federal Indian Law, commonly known as the Marshall Trilogy. It then situates the marriage equality question against the background of another landmark Federal Indian Law case—the more recent decision in Santa Clara Pueblo v. Martinez. The Santa Clara Pueblo decision, which held that the principle of sovereignty dictates that only tribes have the power to determine who is a tribal member, appears, at first blush, to foretell the failure of a lawsuit for marriage equality. However, a closer examination reveals that Santa Clara Pueblo would be distinguishable from a marriage equality action. As a result, we argue, federal courts would likely decline to extend Santa Clara Pueblo to such a marriage equality case. Taken together, historical and modern precedent paints a picture of the fraught nature of tribal sovereignty. Yet, while at times contested and uncertain, sovereignty is a defining characteristic of American Indian tribes. Its essential value to the core identity of tribes is the basis of this Article’s recommendation that tribes themselves should enact marriage equality. This path to marriage equality ultimately will serve to legitimize tribal sovereignty, despite any purported initial appearance that tribes would bend in the face of U.S. colonialism by following Obergefell’s lead.

Part II addresses the holding and impact of Obergefell on the legal landscape of Indian Country and on tribal sovereignty. It situates its analysis within the fundamental building blocks of Federal Indian Law—and particularly the recognition of inherent tribal sovereignty, which is at its apex when dealing with domestic relations within the tribal community. Part II begins with brief descriptions of Obergefell’s holding and the status of marriage equality in Indian Country. It notes that, prior to Obergefell, the issue of marriage equality presented an opportunity for tribes to exercise their sovereignty progressively. Because tribes have the sovereign authority to define tribal marriages, tribes had the chance to lead, rather than follow, in the march toward marriage equality by extending rights to tribal citizens that were then unavailable to many U.S. citizens. Post-Obergefell, however, Indian tribes may now use tribal sovereignty as a shield to defend regressive and discriminatory bans on same-sex marriage that demean LGBTQ tribal citizens. This puts advocates of tribal sovereignty in a difficult position and necessitates the careful balancing of political and legal risk factors in identifying a course of legal action or non-action.

Part II then describes in more detail the three ways in which marriage equality may come to tribal communities, and ultimately recommends the third option—indigenizing equality. On its way to that conclusion, the Article explores the reasons behind some tribes’ resistance to marriage equality. It posits that colonialism is a meaningful factor in explaining why some tribes have resisted marriage equality. It then contends that if tribes look backward—to past traditions of fully accepting and integrating “two-gender” tribal members—and revive and embrace those traditions as a reason to adopt marriage equality, sovereignty will be served and legitimized.

In this way, notions of sovereignty and self-determination are both backward looking and forward looking. Both aspects are important to our indigenizing equality proposal. The backward-looking component of sovereignty and self-determination, specifically tribes’ historical practice of recognizing and celebrating two-spirit Indians and their relationships, serves as a particularized and powerful reminder of long-standing tribal values. The forward-looking component surfaces the centrality of revitalizing and strengthening the way tribal sovereignty is viewed (both by the tribal nations themselves and by the United States). The actualization of each of these components of sovereignty and self-determination is possible because black-letter law provides that tribes have the sovereign authority to regulate marriage.

This Article concludes by contextualizing this issue within the broader spectrum of current tribal legal and political jurisdictional battles. The absence of marriage equality in Indian Country is largely symptomatic of the root problem of colonization’s continued influence of tribal lifeways, jurisprudence, and community norms.

M. Alexander Pearl: Citizen of the Chickasaw Nation of Oklahoma. Associate Professor and Director of the Center for Water Law and Policy at Texas Tech University School of Law; J.D., University of California, Berkeley School of Law. Thank you to Texas Tech University School of Law for its support of this project. My colleague and friend, Kyle Velte, is a trailblazer for the LGBTQ community and I am forever indebted to her for educating me and for her heartfelt respect for tribal communities and sovereignty. I am also grateful to the AALS Section on Indian Nations and Indigenous Peoples for the opportunity to present an early version of this Article and for the thoughtful feedback we received. Finally, thank you to Amanda Kraynok for her prompt and detailed work on this Article.

Kyle Velte: Visiting Assistant Professor, Texas Tech University School of Law; LL.M., Harvard Law School; J.D., American University Washington College of Law. Thank you to Texas Tech University School of Law for its support of this project. Warm thanks to my co-author, Alex Pearl, for his unwavering commitment to tribal communities, including to LGBTQ tribal members, and for his patience, humor, and support. Thanks also to the AALS Section on Indian Nations and Indigenous Peoples for the opportunity to present an early version of this Article and for the thoughtful feedback we received. 

Cite this article:

M. Alexander Pearl & Kyle Velte

,

Indigenizing Equality

, 35 Yale L. & Pol'y Rev. 461 (2017).