A Gay Marriage Loophole for Native Americans

Some tribes offer members a way around state bans on same-sex marriage

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Rick Wilking / Reuters

Darren Black Bear, right, and Jason Pickel wait for their photographer before being married by Darren's father Rev. Floyd Black Bear in El Reno, Okla., Oct. 31, 2013.

Jason Pickel mustered the courage to ask Darren Black Bear out nine years ago at a Christmas party. Three dates later, they moved in together, and they’ve been inseparable ever since. On Oct. 31, the pair did something few gay couples in Oklahoma have done: they got married.

Oklahoma is one of 35 states that bans gay marriage. But Pickel and Black Bear were granted a wedding license by the Cheyenne and Arapaho Tribes, whose only qualifications for marriage are that both spouses must be of American Indian descent and one must be a member of the tribe and live within its jurisdiction. The gender of the spouses is irrelevant.

“Legally we just don’t have any laws that prohibit gay marriage,” says Amber Bighorse, lieutenant governor for the Cheyenne Arapaho. “It has never been controversial.”

The wedding has brought attention to a subset of the marriage equality movement that often flies under the radar. Pickel, a 36-year-old studying to become a mortician, and Black Bear, a 45-year-old florist, are the third gay couple to be married through a license from the Cheyenne Arapaho, and the first to go public. Clayton and Robert Hiram Prairie Chief married in late 2012, and the second couple remains private. The Cheyenne Arapaho is one of just seven of the 566 federally-recognized tribes have specifically approved gay marriage. The Coquille Tribe in Oregon was the first in 2009, followed by the Suquamish in Washington in 2011. Two tribes in Michigan, which has a state ban on gay marriage, approved same-sex marriage this year. Neither the Cherokee nor the Navajo, the two largest tribes in the United States, allow it.

“These folks are responding to the GLBTQ demand for human rights, equality, and they are basically reaching back to ancient history of their particular culture’s oral tradition, anthropological tradition, historic documentation of settlers, to say, ok, this is, in fact, a basic human right in our culture,” says Brian Gilley, a professor of anthropology at Indiana University and author of Becoming Two-Spirit: Gay Identity and Social Acceptance in Indian Country.

Same sex marriage is legal in 14 states, plus Washington D.C. Since the Supreme Court’s June ruling effectively gutted the federal Defense of Marriage Act, a wave of lawsuits have been filed against state laws that define the union as between one man and one woman. While tribal marriage licenses are an option for some gay couples, they are unlikely to lead to a legal challenge of state bans.

“It’s not a good vehicle for bringing this case,” says Matthew Fletcher, a professor of law at Michigan State University and Chief Justice of the Poarch Band of Creek Indians Supreme Court. “If you wanted to have a good marriage equality case out of Oklahoma, you’d probably have to come through Oklahoma state law.”

The relatively small size of the tribes allowing gay marriage also limits their larger effect. “It’s a matter of scale,” Gilley explains, noting that the Cheyenne Arapaho are only 12,500 members. “If a tribe like the Cherokee with 350,000 people were to do this, the state would stand up.”

Tim LaCroix, 53, of the Little Traverse Bay Bands of Odawa Indians, one of the Michigan tribes to legalize same sex marriage, and his husband Gene Barfield, 61, are one of the only other couples in the country who have forged a path like the Pickel-Black Bears. This past March, they thought they were going to quietly celebrate their 30th anniversary at their farm in Northern Michigan. Then LaCroix’s sister called—their tribal council had amended the marriage statute, and it was waiting for the attorney general’s signature. Barfield immediately called the attorney general. “If you are going to sign it,” he recalls asking, “would you officiate our ceremony?” They were married on March 15, right after the signing ceremony, and became the first gay couple living in Michigan to be legally married. President Obama invited them to the White House this summer for a Lesbian Gay Bisexual and Transgender Pride Month reception.

The couple reached out to the Pickel-Blackbears, offering advice on wedding planning, and they’re beginning to talk about how they might work together to advance the cause of American Indian marriage equality. “Times change because you get up off your butt and you change them,” Barfield says. “There is a sense that maybe we should make an effort to speak with one voice on the subject of being able to marry.”