The Same-Sex Marriage Debate and Indian Country

I came across the law review title "Same-Sex Marriage, Indian Tribes, and the Constitution," and couldn't resist skimming it (Matthew L.M. Fletcher, 61 U. Miami L. Rev. 53 (2006), on Westlaw here).

The author begins with a 19th century state case recognizing a polygamous marriage among Chippewa Indians because the tribe at that time recognized such marriages. He uses that as a springboard into the same-sex marriage debate and what it could possibly mean for tribal sovereignty. Pieces of the puzzle:

• After Goodridge two lesbians applied for (and were denied) a marriage license on the Cherokee reservation. Their appeal was dismissed on procedural grounds.
• The Navajo Nation passed a Defense of Marriage Act.
The federal DOMA explicitly mentions Indian tribes as sovereigns that don't have to recognize marriages recognized by other states and tribes.
• Drafts of the proposed constitutional amendment to preserve marriage as heterosexual only do not mention Indian tribes.

Much of the article is speculative -- what if a constitutional amendment DOMA passes? what if there were a federal law requiring recognition of same-sex marriages, what if some tribes recognized such marriages? -- so speculative that I had a "so what?" reaction. But it is a good reminder that we're looking at a lot more sovereigns than 50 states, DC, and the federal government.

If someone registered as a domestic partner in Washington State is hurt on the Yakama Nation reservation and taken to a clinic there, does the partner get to visit and make decisions?

State of Washington's Domestic Partnership Law

On July 23, 2007, at 8 a.m., gay and lesbian couples (along with couples in which one of the two people is 62 years of age or older) were allowed to register as domestic partners under a newly enacted law in Washington State. Details about the law—including the text of the law itself—can be found at the following website:

http://www.secstate.wa.gov/corps/domesticpartnerships/

The law provides a limited set of rights for couples who register as domestic partners, including:

• the right to visit one's partner in the hospital
• the right to make medical decisions for one's partner
• the right to receive information from a partner's health care providers about that partner's condition
• the right to administer the estate of a partner who dies without a will
• inheritance rights if one's partner dies without a will
• the right to be listed on a deceased partner's death certificate
• the right to authorize a partner's autopsy and to receive copies of a partner's autopsy reports and records
• the right to control the disposition of a deceased partner's remains (as well as the right to make anatomical gifts)
• the right to be buried as a couple
• the right to seek damages in a civil action for a partner's wrongful death

The proponents of the new law plan to add additional rights in future legislative sessions. What rights (and duties) do you think should be added next (keeping in mind that the state legislature can only address state, not federal, rights)?

As someone who specializes in evidence law, a right that I would like to see added is the right to prevent your domestic partner from being forced to testify against you in court, as well as the right to prevent one's former domestic partner from testifying about confidential communications made between one another when you were "partnered" (that word doesn't roll off the tongue quite like the word "married," does it?).

What else should be on the high priority list? If you could pick one right or duty added in the next legislative session, what would it be?