Traditional elders question same-sex marriage
A letter to Ellen Fills The Pipe, Chair of the Oglala Sioux Tribal Council Law and Order Committee from Mark C. Van Norman and Steven J. Gunn dated January 25, 2016 in regard to Same-Sex Marriage under Oglala Sioux Tribal Law has some traditional elders raising their eyebrows.
The question as to whether or not persons of the same sex can be married under the laws of the Oglala Sioux Tribe was presented to tribal attorney Van Norman and his opinion was:
“Yes, the Domestic Relations Code of the Tribe establishes marriage as a personal relationship arising out of a civil contract between two persons capable of giving necessary consent. It does not prohibit same-sex marriage.”
Shortly after the Van Norman memo was released OST Chief Judge Kimberly Craven reportedly conducted a same sex marriage ceremony using the Tribal President's Office as a wedding chapel. Craven’s office has been contacted for comment but as of press time she had not responded.
OST public relations officer Kevin Steele confirmed that the marriage took place in the President’s office but without President John Yellowbird Steele’s knowledge.
“A marriage was performed here in the office and it was after hours. President Steele was very unaware that it took place,” Keeler said. “Council lady Fills the Pipe was supposed to be meeting with the lawyers and the vice-president and when they got done they were to lock it up. It happened after everybody left the office, it all happened after hours.”
Keeler said Van Norman's legal memorandum opinion on same sex marriage was brought before tribal council last week and that Traditional Lakota elder Mel Lone Hill voiced his opposition.
Fifth Member Jim Red Willow said that Mel Lone Hill informed tribal council that the marriage violated tribal custom.
Leonard Little Finger, Council of Lakota Elders believes same sex marriage is a sign of the times but that it is in conflict with traditional knowledge, “I can’t judge but I can say that from a traditional point of view same sex marriage is not traditional.”
Richard Broken Nose at Oglala, S.D., at a meeting several months ago, stated that same sex marriage was against tribal custom and traditions because customs and traditions were based on “natural law” and same sex marriage wasn't natural.
According to Attorney Mario Gonzalez some people are upset that the BIA Superintendent issued the marriage license, and felt he should have received a Solicitors Opinion before he issued it.
Gonzalez said that some council members are upset with Council women Ellen Fills The Pipe for asking Van Norman for an attorney's opinion without first informing the Law and Order Committee that she was going to ask for it. “She just did it on her own.”
The Van Norman memo states: “The Domestic Relations Code of the Tribe establishes the legal framework for marriages of members of the Tribe on the Pine Ridge Indian Reservation. The code defines marriage as “a personal relationship arising out of a civil contract, to which the consent of parties capable of making it is necessary. Consent alone will not constitute marriage.
“It must be followed by solemnization.” O.S.T. Code, ch. 3, § 28. The code provides that, “[a] marriage may be solemnized by any recognized clergyman or Judge within the jurisdiction of the Pine Ridge Indian Reservation only after issuance of a license.” Id. at § 29. Under the code, the authority to issue marriage licenses has been delegated to the federal government. The code provides that marriage licenses are to be issued by and obtained from the Pine Ridge Agency office. Id. at § 30. In keeping with this tribal law, for many decades, marriage licenses on the Reservation have been issued and signed by the Agency Superintendent. They are not issued or signed by any tribal official.
There is no prohibition in the Tribe’s Domestic Relations Code against same-sex marriage. The Tribal Constitution provides that the Tribe shall not make or enforce any law that, “[d]enies 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.” O.S.T. Const., Art. XII, § (h). The Tribal Constitution also provides that elected tribal officials shall support and defend the fundamental human rights of the Oglala Lakota Oyate as recognized in international laws and treaties. O.S.T. Const., Art. XV.
The Universal Declaration on Human Rights provides that every person is entitled to equal protection of the law and no person shall be subjected to interference with his or her family.
The U.S. Supreme Court recently declared that the right to marry is a fundamental right inherent in the liberty of the person, and under the due process and equal protection clauses of the U.S. Constitution, couples of the same-sex may not be deprived of that right and that liberty.
Obergefell v. Hodges, 135 S. Ct. 2584 (2015). The Court also held that states must recognize lawful same-sex marriages performed in other states. Id. The Agency Superintendent is a federal official who is bound by the U.S. Constitution and by the Supreme Court’s decision in Obergefell. Under Obergefell, marriage is a fundamental right, and the Superintendent must issue a marriage license to same-sex couples.
The right of all persons to marry is consistent with the guarantees in the Tribal Constitution of basic civil and human rights for all persons. The Tribal Constitution includes due process and equal protection clauses that protect the right of all persons to liberty. The Supreme Court has held that the right to marry is fundamental to liberty, and that equal protection and due process prohibit the denial of the right to marry to same-sex couples.
Federal funding prohibits discrimination based on sexual orientation. In 2014, President Obama issued an Executive Order that prohibits discrimination by Federal contractors based upon “sexual orientation.” Exec. Order 13672 (Jul. 21, 2014).
Discrimination based upon sexual orientation is prohibited in health facilities that provide Medicare and Medicaid services, employment by Federal contractors, and housing under HUD. The Equal Employment Opportunity Commission (“EEOC”) says conceiving of marriage as limited to marriage between a man and a woman is discriminatory.
Many countries prohibit denial of the right to marry to same-sex couples, including the United States, Canada, Mexico, Brazil, Argentina, the United Kingdom, France, Belgium, the Netherlands, Norway, Sweden, Finland, Australia, and South Africa, among others.
The Tribe’s laws allow for consenting adults to marry. There is no limitation in the code to marriage between a man and a woman. Under tribal law, marriage licenses are issued by the Agency Superintendent and he is required to abide by the Supreme Court’s decision in Obergefell. That decision prohibits the denial of the right to marry to same-sex couples. Thus, under the law as drafted, the Superintendent must issue a marriage license to same-sex couples. This is consistent with the guarantees in the Tribal Constitution of basic civil and human rights for all persons, including the right to equal protection of law and the right to due process of law.”
(Ernestine Chasing Hawk can be reached at firstname.lastname@example.org)