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Copyright (c) 2006 University of Miami Law Review
University of Miami Law Review

ARTICLE: Same-Sex Marriage, Indian Tribes, and the Constitution

October, 2006

61 U. Miami L. Rev. 53


Matthew L.M. Fletcher* and Michigan State University College of Law


In a 19th century Michigan Supreme Court case immortalized by Robert Traver's Laughing Whitefish, 1 the court upheld the inheritance rights of the child of a polygamous marriage between two Chippewa Indians in the Upper Peninsula of Michigan. 2 The court wrote that "we had no more right to control [tribal] domestic usages than those of Turkey or India." 3 Taking judicial notice "that among these Indians polygamous marriages have always been recognized as valid," 4 the court identified a conundrum: "We must either hold that there can be no valid Indian marriage, or we must hold that all marriages are valid which by Indian usages are so regarded. There is no middle ground which can be taken, so long as our own laws are not binding on the tribes." 5

Times have changed. Most, if not all, Indian tribes no longer recognize polygamous marriages 6 and Indian people tend to utilize the divorce laws as much as non-Indian people. 7 The Upper Peninsula is no longer on the fringes of the American frontier. 8 Moreover, the laws of states often do apply to Indians and sometimes even Indian tribes. 9 It remains settled black-letter law, however, that Indian tribes retain plenary and exclusive inherent authority over "domestic relations among tribal members." 10

The fact that tribes control their own domestic relations well into the "modern era" 11 of federal-state-tribal relations is a function of the sui generis character of federal Indian law. ...
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