New Tribal Law Allows Couple to Plan Wedding

The Register Guard (Eugene, OR), August 21, 2008 | Go to article overview

New Tribal Law Allows Couple to Plan Wedding


Byline: Winston Ross The Register-Guard

Correction (published Aug. 29, 2008): Front page: A story on Aug. 21 incorrectly stated the effect of a new tribal law on Jeni Branting. Branting, who was recognized as a tribal spouse before the law passed because she and her partner, Kitzen Branting, had become domestic partners in Washington State, can't become a Coquille Indian with the new tribal law. She only has the rights afforded to her as a spouse.

COQUILLE - They met when Kitzen Doyle was 14 and Jeni Branting was two years older. Jeni is the only person Kitzen has ever dated. They were engaged in 2001, and Doyle legally changed her last name to Branting in 2005.

Someday, even if it wasn't recognized by the state or the federal government, the two had planned to marry.

Now, thanks to a historic decision by the Coquille Indian Tribe, the two will wed next May and their status as a married couple will be recognized by the tribal government. The Coquille is the first tribe in the nation to officially sanction same-sex marriage.

On the surface, the tribe's decision applies only to the benefits and rights afforded its members. Jeni Branting, now 27, isn't a tribe member at this point, so she doesn't have access to the health care programs and other opportunities afforded to members. But once the two are married, that will change, and they'll both be fully recognized Coquille Indians.

The tribe, like eight other federally recognized governments in Oregon, is a sovereign nation, exempted from some local and state laws and permitted, for example, to build casinos, even though the state constitution generally prevents anyone from operating a casino.

Tribes' distinctive legal status raises questions about what rights apply in this case, says Wayne Shammel, an attorney with the Cow Creek Band of Umpqua Indians.

Tribes have the right to manage civil regulatory affairs on reservations, the U.S. Supreme Court has ruled, in the same way they are able to conduct gaming, Shammel said. That means they can perform marriages and divorces, and grant rights and responsibilities to their members.

Generally, the United States recognizes marriages from other sovereign nations and the right of its own citizens to travel between states. Thus, it would be unconstitutional for a marriage to be legal in one state and not in the next, Shammel said.

But no one ever has sorted out what that means for tribal sovereignty and marriage because it hasn't come up, at least not in this way.

"It does throw in a real interesting twist," Shammel said. "We have the power to do this, but how's it going to be treated?"

Brian Gilley, an anthropology professor at the University of Vermont, said the Coquille action could test the very notion of tribal sovereignty, should the federal government decide to challenge the Brantings' marriage. Three years ago, a lesbian couple tested a loophole in the Cherokee Nation's law that defined marriage as between two people enrolled in the tribe. The tribe's clerk denied the couple's marriage certificate, prompting a lawsuit, and the Cherokee Supreme Court eventually sided with the couple.

But they never submitted the marriage certificate to the county clerk, which would have taken the issue outside the tribe, so "it died on the vine," Gilley said.

But what if the couple had gone to the county?

"It would be a federally recognized marriage that is against federal law," Gilley said. …

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