ICRA, Obergefell, and Tribal Marriage Equality

Tuesday’s marathon oral argument before the Supreme Court of the United States won’t immediately impact same-sex marriage equality in Indian Country. In fact, the Court’s decision won’t even come down until this summer. But the result in Obergefell v. Hodges, the consolidated cases asking whether the Fourteenth Amendment requires states to grant or recognize gay marriage, will have significant repercussions for Tribes. As Ann Tweedy points out in her definitive overview of the topic, U.S. v. Windsor—the U.S. Supreme Court decision that struck down portions of the Defense of Marriage Act—has limited precedential effect for Tribes. But the case is still seen as persuasive among those Tribes considering or evaluating existing Tribal DOMAs.

The same will be true for Obergefell. The 14th Amendment and the ICRA Equal Protection clause, 25 U.S.C. § 1302(a)(8), are not coequals. They are not enforced the same. They do not even mean the same thing. But if the United States Supreme Court finds that the federal Equal Protection clause prohibits marriage discrimination, ICRA Equal Protection likely does, too.

Of course these rights will take years, perhaps decades of (likely) Tribal Court litigation to enforce. But ICRA, like the very “heteronormative conception of the nuclear family that has been historically imposed on tribes by the United States government and other colonial forces” has been imposed by the United States. As the federal concept of Equal Protection evolves, the effect on Tribal Equal Protection is inarguable.

Anthony Broadman is a partner with Galanda Broadman and can be reached at Anthony@galandabroadman.com and 206.321.2672.