11 Native American Tribes, Including The Two Largest, Prohibit Gay Marriage

By Kathleen Brown | June 8, 2015 | 1:44 PM EDT

"Navajo Wedding," by Mike Larsen, circa 1980. (National Museum of the American Indian).

(CNSNews.com) -- Tribal laws of the two largest Native American tribes in the United States prohibit gay marriage, as do the laws of nine other smaller tribes.

The Navajo and Cherokee Nations, the first and second largest tribes respectively, together have about 600,000 members. The nine smaller tribes that ban gay marriage have another 350,000 members. These tribes all either define marriage as between a man and a woman or explicitly prohibit same-sex marriage, according to the Associated Press (AP).

Since 2011, six of the eleven tribes revisited and upheld their preexisting legal definitions of marriage as between a man and a woman, AP researchers found.

Due to their status as sovereign nations, these 11 tribes will not need to change their marriage laws, which govern nearly one million tribal members, even if the Supreme Court legalizes gay marriage later this month.

If the court’s Obergefell v. Hodges ruling determines that same-sex couples have a constitutional right to marry, Native American bans on gay marriage will remain in effect because federally-recognized tribes have the right to establish their own laws and are not subject to the U.S. Constitution.

For example, the Cherokee Nation Marriage and Family Protection Act of 2004 defines marriage as “a civil contract between one man and one woman” and states that “no marriage shall be contracted...between parties of the same gender.”

Title 6 of Chickasaw tribal law states that “a marriage between persons of the same gender performed in any jurisdiction shall not be recognized as valid and binding in the Chickasaw Nation.” However, the law notes that it does not prohibit “members of the same sex from entering written contracts” with one another.

According to the gay-rights advocacy group Freedom to Marry, at least ten Native American tribes do permit gay marriage. However, this list does not include any of the ten largest tribes according to 2010 U.S. Census Bureau data.

Of the tribes that do recognize same-sex marriage, some have made changes to their marriage laws to include recognition of same-sex couples, while others have adhered to a preexisting policy that tribal marriages be governed by the surrounding state’s marriage laws.

Many other tribes remain neutral, AP reports, neither taking steps to officially recognize gay marriage nor changing the wording of their marriage laws to include or preclude recognition of same-sex couples.

However, the legal language for some of these neutral tribes makes reference to heterosexual couples by use of such phrases as “husband and wife,” “a man and a woman,” and “unmarried male and...unmarried female.”

For example, the Northern Cheyenne Uniform Marriage and Divorce Act defines marriage as “a personal relationship between a man and a woman arising out of a civil contract to which the consent of the parties is essential,” in which spouses “take each other as husband and wife.”

To date, such laws have not been applied to same-sex couples.

CNSNews.com contacted The Human Rights Campaign, the nation’s largest LGBT advocacy group, for a comment, but the group did not respond.