Social Security Benefits for Same-Sex Spouses of Native Americans
If you were married in a tribal nation that permits same-sex marriage and you live there (or in a state or nation that recognizes same-sex marriage), you are eligible for spousal Social Security benefits.
While the federal government treats Native American tribes as sovereign, domestic, dependent nations, federal law trumps tribal law in many matters outside a tribal nation’s jurisdiction. This means that any laws enacted by a tribal nation must still align with the federal government’s laws and policies.
With regards to same-sex marriage, Native American nations and tribes have the right to allow or prohibit same-sex marriage. Before DOMA was partially overturned by the Supreme Court in June 2013, same-sex marriages were not recognized by the federal government, even if they were valid under tribal law.
But today, if a tribal nation permits same-sex marriage and a couple is married under the laws of their nation, the federal government is required to extend spousal federal benefits, including Social Security disability, to that couple. This is true even if the couple lives in a state that prohibits same-sex marriage.
Tribal Law and Gay Marriage
There are 566 Native American tribal entities recognized by the federal government. Most tribes have remained silent on the issue of same-sex marriage. However, some tribal nations have banned same-sex marriage, some tribal nations have chosen to adopt the laws of the state in which the tribe is located, and others have specifically legalized gay marriage for their members. Here is a list of nations that have stated their positions on same-sex marriage. See the discussion below for when Social Security benefits are available to gay Native Americans who are married under tribal law.
Tribal Nations That Permit Same-Sex Marriage
The following tribes permit same-sex marriage. This means that federal spousal benefits, such as Social Security survivor’s benefits, are available to same-sex spouses married under the laws of one of these tribes. This is true even if state law in which the tribe is located prohibits same-sex marriage. However, whether or not the state will recognize the marriage depends on the state's laws.
The Coquille Tribe of Oregon has permitted same-sex marriage since May 2009, as long as one spouse is a member of the tribe. For more information, visit the Coquille Tribe website and look under Coquille Tribal Ordinances.
Little Traverse Bay Bands of Odawa Indians
The Little Traverse Bay Bands of Odawa Indians, a tribal nation in Michigan, has permitted same-sex marriages since May 2013. For more information, visit the Little Traverse Bay Bands of Odawa Indians' website under Tribal Code.
Pokagon Band of Potawatomi Indians
The Pokagon Band of Potawatomi Indians in Michigan has permitted same-sex marriages since May 8, 2013. For more information, visit the Pokagon Band of Potawatomi Indians website and look for the Marriage Code under Codes and Ordinances.
Santa Ysabel Tribe
The Santa Ysabel Tribe in Southern California has permitted same-sex marriages since June 24, 2013. For more information, visit the Santa Ysabel Tribe website.
The Suquamish Tribe located in Washington state has recognized same-sex marriages since August 2, 2011. For more information, visit the Suquamish Tribe website.
Nations or Tribes that Prohibit Same-Sex Marriage
The following tribes and nations do not allow their members to enter into same-sex marriages under tribal law. However, tribe members may still enter into same-sex marriages under any state’s law that allows same-sex marriage. The tribe or nation, however, is not required to recognize the marriage.
Same-sex marriage is prohibited under the laws of the Cherokee nation in Oklahoma. For more information, visit the Cherokee Nation website.
Sault Saint Marie Tribe of Chippewa Indians
The law of the Sault Saint Marie Tribe of Chippewa Indians follows the laws of the state of Michigan concerning gay marriage. Michigan does not allow same-sex marriage, nor any other kind of legal relationships between same-sex couples (such as civil unions). Therefore, neither does the Sault Saint Marie Tribe. You can read about the law at the National Indian Library website.
The Chickasaw Nation in Oklahoma does not allow same-sex marriage. For more information, visit the Chickasaw Nation website.
Muscogee Creek Nation
The Muscogee Creek nation in Oklahoma does not allow same-sex marriage. For more information visit the Muscogee Creek Nation website.
The Iowa Tribe of Oklahoma
The Iowa Tribe of Oklahoma does not allow same-sex marriage. For more information visit the The Iowa Nation of Oklahoma website.
The Navajo nation, located in parts of Arizona, New Mexico, and Utah, specifically prohibited same-sex marriage when it amended its nation code on April 22, 2005. For more information, visit the Navajo Nation website.
State Law Versus Tribal Law
Because federally recognized Native American tribal entities are sovereign, they are not bound to the state constitution in which the tribe is located. This includes laws regarding same-sex marriages. This means that the federal government must extend federal spousal benefits to same-sex couples that have a valid marriage under the laws of their tribe who live on tribal lands, even if the couple would not be able to wed in the state where their tribe is located.
Conversely, this means that if your tribe is located in a state that permits same-sex marriage, your tribe is not required to allow same-sex marriages. Check with your tribal government for specific information about how your tribe approaches same-sex marriage.
The Importance of Domicile
To be eligible for spousal Social Security benefits, your marriage must be valid in the jurisdiction where you are "domiciled." Your domicile is the place where you permanently live. For example, if you are married under the laws of the Santa Ysabel tribe of California, which permits same-sex marriage, yet live in South Carolina when you apply for Social Security benefits, you will be ineligible, because the laws of South Carolina do not recognize same-sex marriage.
On the other hand, if you are married under the laws of Coquille Tribe of Oregon, for example, and have your legal residence on tribal lands, you will be eligible for spousal Social Security benefits even though Oregon doesn't permit same sex-marriage (as of August 2013). However, if you move off of tribal lands and into the state of Oregon, you will lose your eligibility for Social Security benefits, because Oregon doesn't recognize same-sex marriages, even marriages that are valid under the laws of the jurisdiction where they were performed.