No Indian tribe in exercising powers of self-government shall... deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law....Thus the invalidation of same-sex marriage bans on either 14th Amendment equal protection of due process grounds would appear to demand a similar result under Section 1302.
Sunday, February 22, 2015
Will A Supreme Court Decision Legalizing Same-Sex Marriage Apply To Tribal Governments?
Today's New York Times carries an article titled Among the Navajos, a Renewed Debate About Gay Marriage. The two largest Indian tribes-- the Navajo Nation and the Cherokee Nation-- ban same sex marriage, though at least ten smaller tribes have legalized same-sex unions. The national debate on the issue is causing some Navajos to consider repealing a 2005 tribal law-- the Dine Marriage Act-- which prohibits same-sex unions on the Navajo reservation. The Times article quotes an expert as saying that even if the Supreme Court decides that bans on same-sex marriage are unconstitutional, this will not affect tribal bans. That conclusion is based on the principle that tribes were not signatories to the Constitution and are not bound by it. The Times article, however, fails to mention the Indian Civil Rights Act which does bind tribal governments. 25 USC Sec. 1302 provides in part: