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Indian Tribe Recognizes Same-Sex Marriage

Timothy Kincaid

August 20th, 2008

The Coquille, a Native American tribe in southern Oregon have become the first in the United States to decide to recognize same-sex marriage (The Oregonian).

As a federally recognized sovereign nation, the tribe is not bound by Oregon’s constitution. And on May 8, the tribe adopted a law that recognizes same-sex marriage and extends to gay and lesbian couples all the tribal benefits of marriage.

And while the state cannot interfere in inter-tribal matters, the planned marriage between Kitzen and Jeni Branting could play a part in a larger legal question.

Because the Coquille is federally recognized, a marriage “occurring within the tribe would actually be federally recognized,” Gilley said. And that would violate the Defense of Marriage Act, a federal law that says the federal government “may not treat same-sex relationships as marriages for any purpose.”

As a result, the marriage between the Brantings – who share the same last name after changing it to reflect their commitment – could become a test case if challenged by the federal government. Gilley said it could test the boundaries of tribal independence nationwide. .

“This could be a test of sovereignty,” he said.

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Samantha Davis
August 20th, 2008 | LINK

From Article Six of the Constitution of the United States:

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

In my, albeit lay, interpretation of the law DOMA is not supporting, and in fact, does not even deal with any part of the Constitution. In fact, DOMA flies in the face of not only the spirit of the body of the Constitution itself but in the face of the First Amendment and the spirit behind Amendments XV, XIX, and XXIV. Given that I don’t think it can be said that DOMA is “in pursuance therof [the Constitution].”

Furthermore, because the United States government had a treaty with the Coquille nation and because DOMA can’t be said to be “in pursuance [of the Constitution]” Article VI clearly holds the Coquille treaty above DOMA.

I would be interested in seeing what some of these Constitutionalist judges have to say.

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