ARTICLE: TRIBAL MARRIAGES, SAME-SEX UNIONS, AND AN INTERSTATE RECOGNITION CONUNDRUM Skip over navigation
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Copyright (c) 2010 Boston Third World Law Journal
Boston College Third World Law Journal

ARTICLE: TRIBAL MARRIAGES, SAME-SEX UNIONS, AND AN INTERSTATE RECOGNITION CONUNDRUM

Spring, 2010

Boston College Third World Law Journal

30 B.C. Third World L.J. 207

Author

MARK P. STRASSER *

Excerpt

INTRODUCTION

Opponents of same-sex marriage suggest that the recognition of such marriages will lead to the recognition of polygamous marriages. 1 This argument implies both that there are no important differences between same-sex and polygamous unions and that the recognition of polygamous unions in this country is simply unfathomable. Neither of these implicit contentions is correct. Same-sex and polygamous unions differ in important ways. 2 Moreover, the United States has recognized Native American polygamous unions as a matter of course. 3 Tribes recognized marriages that states customarily considered void for violating an important public policy of the state. 4 Nonetheless, most states recognized those unions as valid, even though these unions would have been void had they been celebrated on non-tribal land. 5

This Article focuses on why Native American polygamous unions were recognized by federal and state governments. It explores what states' recognition of these unions means for the validity of same-sex marriages across state lines. Part I describes some historical Native American domestic relations practices and explains why states recognized certain Native American marital unions that would not have been recognized had they been celebrated elsewhere. Part II analyzes what recognition of these unions means for the debate surrounding recognition of same-sex unions. This Article concludes by arguing that the historical treatment of Native American polygamous marriages suggests Congress has the power to assure same-sex couples the same rights and protections that almost all other families enjoy when traveling through or moving to other states.

I. TRIBAL ...
 
 
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