Judges for the Choctaw Nation’s highest court ruled portions of tribal code that prohibited recognition of same-sex marriages unconstitutional and paved the way for a same-sex couple to adopt a child through the tribe’s court system.
Choctaw Nation Chief Justice David A. Burrage and Constitutional Court Judges Frederick Bobb and Mitchell Mullin ruled Tuesday two sections of the Choctaw Nation Marriage and Divorce Act violate the tribal constitutional rights of members of the Choctaw Nation of Oklahoma.
The ruling comes after a Choctaw Nation district judge previously denied Chelcie and Kennedy Barker’s adoption of a child, saying the tribe’s Act did not recognize the couple’s marriage.
“A marriage between persons of the same gender performed in another tribe, a state, or in any other forum shall not be recognized as valid and binding in the Choctaw Nation of Oklahoma,” the Act states.
Tribal constitutional judges overturned that decision in citing Choctaw Nation’s constitution.
Section 1 of the Choctaw Nation’s Bill of Rights contained in Article 4 of the Constitution states “nothing in the Constitution shall be interpreted in a way which would diminish the rights and privileges that tribal members have as citizens of the Nation, the State of Oklahoma, the United States of America, or under any Act of the Congress of the United States.”
The Five Tribes — the Cherokee, Chickasaw, Choctaw, Muscogee (Creek) and Seminole Nations — maintain tribal sovereignty, but each of their constitutions state tribal members’ rights as American citizens will not be abridged.
Choctaw Nation’s top court also ruled a tribal member of the same sex is a husband or wife of the parent “and are quailed to adopt under the same.”
Linque Gillett, attorney for the Barkers, applauded the court’s quick and decisive ruling in line with the tribe’s motto of “Living out the Chahta Spirit of faith, family, and culture.”
Gillett said the couple are set to finalize the adoption Friday.
“Because of this ruling no other Choctaw families will have to experience the same discrimination, uncertainty, and confusion when they appear in the Choctaw Nation of Oklahoma’s tribal court in the future,” Gillett said. “My hope would be that the chief and tribal council will amend their laws so the face of their own tribal code does not show discrimination but affirms and supports its members who are same-sex couples.”
Choctaw Nation Chief Gary Batton in a statement following the ruling applauded the Constitutional Court in its ruling and said a review of codes will be made and that the couple and their family has the tribe’s support.
“Based on this decision, we will review our codes to see what changes need to be made,” Batton said. “We offer our love and support to the family involved in this case.”
The ruling from the court came after Choctaw Nation Tribal Prosecutor Kara Bacon filed an application with the court to assume original jurisdiction and sought a writ of mandamus or writ of prohibition “regarding the constitutionality of certain codes and acts and their relation to the adoption of a minor child.”
“Here it is the Choctaw Nation of Oklahoma, itself, that is questioning the constitutionality of its act,” the court’s ruling stated.
The court wrote in its opinion it focused its opinion on the right afforded to U.S. citizens determined by the 2015 U.S. Supreme Court decision in Obergefell v. Hodges, which granted individuals the fundamental right to marry regardless of their sex.
“Though tribal governments are typically not subject to the United States Constitution, it is clear from the language of the Choctaw Nation of Oklahoma Constitution, Choctaw Members are to have all freedoms, liberties, and rights of any other member of the United States of America,” the ruling states.
The court’s ruling states since the couple was married, under the laws of the tribe “or any other state” the stepparent is eligible to adopt under tribal code “regardless of the sex of the parent, their married spouse would be their husband or wife.”
Judges issued a writ of prohibition to the Choctaw Nation and its district judges “prohibiting judicial recognition or enforcement of the portions Sections 3 and 3.1 of the C.N.M.D.A., specifically as far as it would prohibit same sex marriage and the recognition of same sex marriages.”
A writ of mandamus was also issued ordering the district judge vacate the dismissal of the adoption and to conduct a new hearing consistent with the Constitutional Court’s ruling.
“Though writs of prohibition and writs of mandamus should only be issued in rare instances, this matter warrants the issuance of both,” the ruling states.
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