Brooklyn Law Review


While marriage equality is thought to be the law of the land, that is not necessarily true for members of nearly a dozen Indian tribes that continue to prohibit same-sex marriage. Whether a tribe permits same-sex marriage rests on the tribes’ inherent authority to govern their own internal affairs. Acting pursuant to that inherent authority, many tribes were leaders on the issue of marriage equality, legalizing same-sex marriage when most states prohibited such marriages. Other tribes, however, like the Navajo Nation, limit marriages to “one man and one woman.” As a consequence, a married Indian couple may have their marriage recognized by their state government and by the federal government, but not by the government of perhaps their most important community—their tribe. With a focus on property rights, this article considers how a tribe, like the Navajo Nation, that denies marriage rights to same-sex couples, would dispose of marital assets upon the death of a spouse who dies without a written will. Like most Americans, tribal members are more likely to die intestate. Consequently, their marital assets will be subject to a probate code that typically allocates a priority share to the surviving spouse as a mechanism to ensure financial support for the surviving spouse and children of the deceased. Unlike most Americans, however, tribal members are subject to at least three separate jurisdictional probate codes: (1) the federal American Indian Probate Reform Act that determines the allocation of the deceased’s real property held in trust; (2) their tribe’s probate code; and (3) a state probate code for any property located outside the reservation, such as bank accounts. While the federal and state probate processes would require recognition of the surviving same-sex spouse intestate share, the tribe would deny the surviving spouse his share of his deceased spouse’s estate. Accordingly, this article explores how a tribe’s rejection of same-sex marriage may divest a surviving spouse of her intestacy share on account of her spouse’s gender—and how that conflicts with federal and state law that prohibits such discrimination. It further examines how the denial of intestacy benefits undermines the stability and financial security of same-sex couples and their families. This article proposes that, if Indian tribes continue to prohibit same-sex marriage, they should recognize lawful same-sex marriages performed outside the tribe’s jurisdiction on the basis of either full faith and credit or comity. While a tribe may opt not to solemnize a marriage, refusing to recognize a marriage lawfully undertaken in another jurisdiction denies property rights to surviving spouses and undermines the ability of spouses to support each other and their offspring.