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Coquilles' recognize same sex marriage.

 
 
Reply Thu 21 Aug, 2008 08:51 am
The Coquille tribe in southwest Oregon has decided to recognize same sex marriage. This could get interesting!

Quote:
....As a federally recognized sovereign nation, the tribe is not bound by the Oregon's Constitution. The tribe recently adopted a law that recognizes same-sex marriage and extends to gay and lesbian partners, at least one of whom must be a Coquille, all tribal benefits of marriage.....


Quote:
...Because the Coquilles have federal status, a marriage within the tribe would be federally recognized, Gilley says. And that would violate the Defense of Marriage Act, a law that says the federal government "may not treat same-sex relationships as marriages for any purpose."

The federal government could challenge the Coquille law as a way of testing the limits of tribal independence....


Read more: http://www.oregonlive.com/news/index.ssf/2008/08/coquille_tribe_will_sanction_s.html

What do you think the ramifications of this might be?


 
JPB
 
  1  
Reply Thu 21 Aug, 2008 08:58 am
@boomerang,
Very Interesting... I can imagine that the level of interest that the Feds place in fighting this will depend on the results of November's elections.
0 Replies
 
rabel22
 
  2  
Reply Thu 21 Aug, 2008 09:46 am
@boomerang,
Dident we fight a war over this in the 1850 0r 1860's. Even the tribes are supposed to adhere to the constitution and fedreal law. Not that I dont agree that a legal union should be recognized by government.
boomerang
 
  1  
Reply Thu 21 Aug, 2008 10:14 am
@rabel22,
Tribal law is complicated and it's interaction with federal law is even more complicated. It is WAY over my head, which is why I asked here.

But yes, I believe Tribal law is subordinate to federal law. According to the article several Nations have made law regarding same sex marriage, just like the States have done.

There must be something regarding jurisdiction that I don't get. I hope someone can fill me in!
0 Replies
 
fishin
 
  3  
Reply Thu 21 Aug, 2008 02:57 pm
My guess is that this will be a minor legal skirmish. The Coquille's own tribal Constitution says:

Quote:
The authority of the government established by this Constitution shall extend over all persons, property, and activities within the jurisdiction of the Coquille Indian Tribe, except as limited by this constitution and federal law.

The jurisdiction of the Coquille Indian Tribe shall extend, to the fullest extent possible under federal laws, over all lands, waters, property, airspace, minerals and other natural resources, and any interest therein, either now or in the future, owned by the Tribe or held in trust by the United States for the Tribe.


http://www.narf.org/nill/Constitutions/coquilleconst/coqconstitution.htm#I

So their own Constiitution recognizes that they are subordinate to Federal Law and that they don't have any authority to violate the DoMA. They may be able to operate as MA and CA do where same sex marriage is recognized within the boundries of the state but they'll hit a roadblock when it comes to any Federal benefits.
boomerang
 
  2  
Reply Thu 21 Aug, 2008 07:59 pm
@fishin,
Thanks, fishin'.

I'm just trying to get all this straight....

A Nation, like a State, can make it's own laws but the laws aren't recognized outside the state? Is that correct? The Nation operates like a State.

So the newspaper quote in my first post saying that the marriage must be recognized on a federal level is incorrect?

Just out of curiosity -- how does that effect adoption law? Is adoption strictly a state matter or are there federal laws regarding adoption. I know that adopting a Native child is virtually impossible.
fishin
 
  3  
Reply Fri 22 Aug, 2008 04:37 am
@boomerang,
Some issues (as outlined in the Federal Constitution) have been assigned to the Federal government for management - these are almost entirely things that cross state lines - Interstate Commerce, for example. We don't want teh states setting up arbitrary taxing schemes so that when some store in Oregon buys their wholesale goods from a distributor in Nevada they get hit with taxes. We also want transportation systems so that goods and people can move around between the states without things like border crossing systems. Those sorts of things fall almost entirely into the Federal realm but the States have a small part in them too. All of the Federal laws have effect on all of the states. In some cases all there are is Federal law. In other cases there are Federal laws and complimentary State level laws.

Anything that isn't mentioned in the Federal Constitution defaults to the States or to the individuals ( that's what the 10th Amendment to the Federal Constitution say anyway! Razz). So things like marriage laws, gambling, legal hours of operation of businesses open to the public, housing rental issues, aren't mentioned in the Federal Constitution, so they default to the States to regulate. When a State makes law it is only binding on those under the jurisdiction of the state. It doens't affect people in other states (not directly anyway) and it doesn't override Federal laws if they exist.

Recognized Native American tribes (such as this one) fall into a hazy middle ground. By definition they are a "Nation" not a State. But as condition of the Federal recognition they agree to accept Federal laws and the Federal Constitution as superior to their own laws (in return they get access to some Federal monies and benefits) so the net affect is that they are treated like a state in many ways. Marriage laws is one of the areas they the individual tribes are allowed to decide on for themselves. Tribal laws work pretty much exactly the same way State laws work.

As far as the claim made in the article... Well, it came from an anthropology professor... I'm sure he's a nice guy and all but if you read a bit further down in the article the Tribe's own lawyer pretty much disagrees with him and admits that they don't expect that it will hold up if poushed against the Federal law.

Adoption is a State/Tribal level issue. The Feds don't really get involved with it much UNLESS it involves international adoptions. They get involved there because of issues of citizenship and such. Reconginzed tribes are allowed to control the adoption process for their citizens (and that goes for both citizens and adoptees and those doing the adopting.) Most tribes have agreements setup with the different states to handling things like a Non-Native American adopting a Native American child or the adoption of a non-Native American child by a Tribal adult. (Some tribes don't allow their tribal children to be adopted by non-tribal adults at all.)
boomerang
 
  1  
Reply Fri 22 Aug, 2008 07:51 am
@fishin,
Thank you very much!

Now it all makes sense.
0 Replies
 
 

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