The Supreme Court decision in Obergefell v. Hodges that legalized same-sex marriage in the states and most territories (excluding American Samoa) did not apply on Indian reservations. The decision was based on the equal protection guarantee of the 14th Amendment to the U.S. Constitution, but by long established law, this part of the Constitution does not apply to Indian tribes. Therefore, the individual laws of the various United States federally recognized Native American tribes may set limits on same-sex marriage under their jurisdictions. At least ten reservations specifically prohibit same-sex marriage and do not recognize same-sex marriages performed in other jurisdictions; these reservations remain the only parts of the United States to enforce explicit bans on same-sex couples marrying.
Most federally recognized tribal nations have their own courts and legal codes but do not have separate marriage laws or licensing, relying instead on state law. A few do not have their own courts, relying instead on CFR courts under the Bureau of Indian Affairs. In such cases, same-sex marriage is legal under federal law. Of those that do have their own legislation, most have no special regulation for marriages between people of the same sex or gender, and most accept as valid marriages performed in other jurisdictions. Many Native American belief systems include the two-spirit descriptor for gender variant individuals and accept two-spirited individuals as valid members of their communities, though such traditional values are seldom reflected explicitly in the legal code. Same-sex marriage is possible on at least forty-nine reservations with their own marriage laws, beginning with the Coquille Indian Tribe (Oregon) in 2009. Marriages performed on these reservations were first recognized by the federal government in 2013 after section 3 of the Defense of Marriage Act (DOMA) was declared unconstitutional in United States v. Windsor. These were statutorily affirmed by the Respect for Marriage Act, which formally repealed DOMA.
Nations that explicitly provide legal recognition In some instances, tribal law has been changed to specifically address same-sex marriage. In other cases, tribal law specifies that state law and state jurisdiction govern marriage relations for the tribal jurisdiction.
Ak-Chin Indian Community Until October 25, 2017, the Ak-Chin Law and Order Code specifically banned same-sex marriages and did not recognize those performed off the reservation.
In September 2015, a member of the Ak-Chin Indian Community filed a lawsuit in the Ak-Chin Indian Community Court, alleging violations of equal protection, the Indian Civil Rights Act and due process, after the tribe refused to recognize her same-sex marriage. On October 25, 2017, the court ruled that the law banning same-sex marriage was in violation of the tribe's Constitution and the Indian Civil Rights Act of 1968. The tribe's chairman announced that the Government will not appeal the ruling. The ruling only applies to the Ak-Chin Indian Community, but may set a precedent for similar future challenges by more tribes.
Bay Mills Indian Community The Tribal Council of the Bay Mills Indian Community of Michigan legalized same-sex marriage on July 8, 2019, by changing its marriage code, removing all wordings which only recognized marriages between a man and a woman.
Previously, the Tribal Code in section 1401 "Recognition of Marriages" stated, "The Bay Mills Indian Community shall recognize as a valid and binding marriage any marriage between a man and a woman formalized or solemnized in compliance with the laws of the jurisdiction in which such marriage was formalized or solemnized." Section 1404.B.1 "Minimum Qualifications of Applicants" stated that "No license for marriage shall be issued by the Tribal Court for a marriage to be performed pursuant to this Chapter unless the applicants for the license shall demonstrate to the Court's satisfaction that: 1. The parties are a man and a woman."
Blackfeet Nation Chapter 3 of the Law and Order Code of the Blackfeet Nation of the Blackfeet Indian Reservation of Montana specifies that state law and state jurisdiction governs marriage relations and that neither common-law nor marriages performed under native customs are valid within the Blackfeet Reservation. On November 19, 2014, US District Court Judge Brian Morris struck down Montana's same-sex marriage ban in Rolando v. Fox. In December 2007, a traditional Blackfoot marriage ceremony was held in Seeley Lake, Montana for a Blackfoot two-spirit couple.
Blue Lake Rancheria The Blue Lake Rancheria legalized same sex marriage on November 1, 2013 by repealing section 6C of its Marriage Ordinance. Previously, on October 13, 2001, the Business Council of the Rancheria had passed an ordinance which prohibited marriages contracted by same-sex parties. However, section 13 state that marriages legally contracted outside the boundaries of the Blue Lake Rancheria are valid within the tribal jurisdiction.
Central Council of the Tlingit and Haida Indian Tribes of Alaska The Central Council of the Tlingit and Haida peoples in Alaska voted in February 2015 to legalize same-sex marriage on their sovereign lands. The Council will also be responsible for any related divorces that may arise.
Cherokee Nation The Cherokee Nation has recognized same-sex marriages since December 9, 2016, overturning a ban established in 2004.
On May 13, 2004, a lesbian couple applied for a marriage license and were approved by a Cherokee Nation tribal court deputy clerk. On May 14, 2004, Judicial Appeals Tribunal Chief Justice Darrell Dowty issued a moratorium on issuing additional same-sex marriage licenses.
On May 18, 2004, the couple were married in Tulsa, but their request to register their certificate of marriage was refused. On June 11, 2004, the Tribal Council's attorney, as a private party, filed an objection to the issuance of the application and on June 16 filed an injunction to nullify the marriage. On June 14, the Cherokee Nation Tribal Council passed a law banning same-sex marriages. The couple filed a motion for a decision in November 2004. On December 10, their motions to dismiss, quash and for summary judgment were denied by the Cherokee District Court and they appealed to the Judicial Appeals Tribunal of the Cherokee Nation (JAT) on December 17. In June 2005, the JAT set a trial date of August 2 to determine the standing of the Tribal Council attorney to file as a private individual. On August 3, 2005, the JAT ruled that no individual suffered harm from the legal recognition of same-sex marriage and the plaintiff therefore lacked standing.
The following day, 15 tribal councilors filed a petition to prevent the couple from filing their marriage certificate with the tribe. On December 22, the JAT dismissed the injunction again citing the inability of council members to demonstrate that they suffered harm as individuals from the recording of the marriage.
On January 6, 2006, the Cherokee Nation Court Administrator filed a petition stating that recording the marriage certificate would violate the tribal law defining marriage as that of a man and a woman. On March 8, the couple filed a motion to dismiss the third challenge as their marriage had occurred prior to the enactment of the law defining marriage as being only between a man and a woman. Though Oklahoma's same-sex marriage ban was overturned on January 14, 2014, in a ruling by U.S. District Judge Terence Kern, the petition before the JAT remained unanswered.
On December 9, 2016, the Attorney General of the Cherokee Nation overturned the tribe's ban on same-sex marriage. His decision took effect immediately. He had been asked to rule on the recognition of same-sex marriage by the tribe's tax commissioner. Citing the Cherokee Constitution (, ), which protects the fundamental right to marry and establish a family, the Attorney General ruled that prohibiting same-sex marriage was unconstitutional.
On March 21, 2017, a Cherokee Nation Rules Committee discussed a proposal that would ask voters whether the tribe should recognize same-sex marriage. The following day, the Council voted to table the resolution indefinitely, keeping same-sex marriage legal.
Cheyenne and Arapaho Tribes Marriage law of the Cheyenne and Arapaho Tribes, a united tribe in Oklahoma, makes no specification of the gender of the participants. Based on that, Darren Black Bear and Jason Pickel applied for and received a marriage license on October 18, 2013. Theirs was the third such license issued by the Tribes.
Chickasaw Nation The Chickasaw Nation Code was amended on April 18, 2022 to allow marriage between any two individuals and repeal language barring recognition of marriages between persons of the same gender. The definition of marriage now reads:
Previously, Section 6-101.6.A of the Code, asserted that Marriage' means a personal relation arising out of a civil contract between members of the opposite sex to which the consent of parties legally competent of contracting and of entering into it is necessary, and the Marriage relation shall be entered into, maintained or abrogated as provided by law." Section 6-101.9, titled "Marriage Between Persons Of Same Gender Not Recognized", had asserted that "a Marriage between persons of the same gender performed in any jurisdiction shall not be recognized as valid and binding in the Chickasaw Nation as of the date of the Marriage". That section was removed with the 2022 revision.
Choctaw Nation In May 2023, the Choctaw Constitutional Court ruled that Choctaw Nation members have a right to marry, regardless of gender. The ruling was due to an adoptive couple who were eligible to adopt under federal law under the 14th Amendment but not under tribal law, due to a tribal ban on same-sex marriage; the Choctaw constitution guarantees that tribal members shall not be denied rights provided for by the federal constitution. Choctaw Chief Gary Batton said after the ruling, "Based on this decision, we will review our Codes to see what changes need to be made."
Previously, the Choctaw Nation Marriage Act stated in section 3.1 "Recognition of marriage between persons of same gender prohibited", that "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."
As in the other Oklahoma Tribal Statistical Areas governed by one of the "Five Civilized Tribes", all of which are inhabited by a majority non-native population, Choctaw authority only extends to Tribal members and property. Non-members, who do not receive services from the Tribal Government and are not subject to the Tribal Code, were unaffected by the ban on same-sex marriage.
Colorado River Indian Tribes The Colorado River Indian Tribes of the Colorado River Indian Reservation in California, Nevada and Arizona legalized same-sex marriage on 8 August 2019 by changing section 2-102 of its domestic relations code, stating that a "marriage between two consenting persons licensed, solemnized, and registered as provided in this Chapter is valid". Previously, the code, enacted in 1982, stated that "a marriage between a man and a woman licensed, solemnized, and registered as provided in this Chapter is valid".
Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians