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The Coquille Indian Tribe, Same-Sex Marriage, and Spousal Benefits: a Practical Guide

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The Coquille Indian Tribe, Same-Sex Marriage, and Spousal Benefits: a Practical Guide THE COQUILLE INDIAN TRIBE, SAME-SEX MARRIAGE, AND SPOUSAL BENEFITS: A PRACTICAL GUIDE Julie Bushyhead1 Civil marriage is at once a deeply personal commitment to another human being and a highly public celebration of the ideals of mutuality, companionship, intimacy, fidelity, and family. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Because it fulfils yearnings for security, safe haven, and connection that express our common humanity, civil marriage is an esteemed institution, and the decision whether and whom to marry is among life's momentous acts of self-definition.2 INTRODUCTION The Coquille Tribe, located in Oregon, is the first and only Indian tribe to codify the definition of marriage as a fundamental right regardless of the biological sex of the parties.3 Coquille Tribal Chief Ken Tanner stated, “we want 1. University of Tulsa College of Law, J.D. expected May 2009. The author would sincerely like to thank Professor Melissa Tatum, now the Associate Director of the Indigenous Peoples Law and Policy (IPLP) Program at the University of Arizona James E. Rogers College of Law, for her guidance and unwavering support in writing this article; Brian Gilley, Ph.D., assistant professor of Anthropology at the University of Vermont for his help in understanding a Native American tradition of recognizing “two-spirit” people; Melissa Cribbins, Esq. and Kay Collins from the Coquille Indian Tribe Legal Services Department for their assistance helping me understand Coquille law; last, but certainly not least, the staff and editorial board of the Arizona Journal of International and Comparative Law for their support and thoughtful advice. The author uses the term “same-sex couple” throughout the article in an attempt to educate without creating confusion. However, this term is biologically incorrect for some couples as it presumes that all human beings are either male or female, and may foster unwarranted societal stigma of inferiority and/or immorality. Furthermore, the use of “sex” to refer to gender can be misleading. In fact, there is a distinct difference between a person’s gender identity and a person’s sexual orientation. 2. Goodridge v. Mass. Dep’t of Pub. Health, 798 N.E.2d 941, 954-55 (Mass. 2003) (quoting Griswold v. Connecticut, 381 U.S. 479, 486 (1965) (emphasis added) (internal quotations omitted)). 3. E-mail from Brian Gilley, Anthropologist and Assistant Professor at the University of Vermont, to Julie Bushyhead, Student at the University of Tulsa College of Law (Oct. 16, 2008) (copy on file with author). 510 Arizona Journal of International & Comparative Law Vol. 26, No. 2 2009 all people to be open to benefits and accepted in our group.”4 The Tribe tries to accomplish this goal by recognizing “people of different lifestyles.”5 The Coquille’s new marriage ordinance “finds that the formation, continuity and recognition [of] domestic relationships are essential to the political integrity, economic security and the health and welfare of the Tribe.”6 By enacting this ordinance, the Tribe demonstrates its appreciation for the importance of recognizing a couple’s sincere commitment to one another through the institution of marriage.7 The Tribe supports its action to resist discrimination against same- sex couples by referring to the Tribe’s historic tradition of accepting people with different lifestyles—“none of [the Tribe’s traditional] mores would have excluded same-sex relations [or marriage].”8 Although the federal government impairs any attempt by tribes or states to completely abolish discrimination against same-sex couples,9 the Coquille Tribe is making an effort to promote equality for its members by granting marriage licenses to couples regardless of biological sex.10 Same-sex couples married by the Coquille Tribe are in a unique position to receive equal and respected recognition as “married” by the Coquille Tribe, extensive health benefits provided by the Coquille Tribe, and extensive spousal benefits provided by the Oregon Family Fairness Act if those couples register as domestic partners in Oregon. This article will discuss the flaws underlying the majority view concerning access to marriage, the inherent discrimination against same-sex couples, and the various spousal rights concerning end of life and estate planning decisions. In particular, this article will examine spousal rights available to same- sex couples married by the Coquille Indian Tribe and registered as domestic partners under the Oregon Family Fairness Act. Part I discusses the United States view on same sex marriage including the problems with the federal definition, potential solutions, and the discrimination inherent in those solutions; Part II 4. The Jefferson Exchange: Gay Rights/Indian Tribes (Jefferson Public Radio Broadcast Aug. 26, 2008) (interviews with Ken Tanner and Brian Gilley) [hereinafter Interview with Ken Tanner and Brian Gilley]. Brian Gilley illustrated this point by stating, the: Coquille have made a decision to accept people in their communities . [an] entire group of people who are hidden who could contribute to community, but ironically the majority of native peoples in the United States have decided to continue to alienate these potentially productive, contributing people, so I really admire what the Coquille have done. Id. 5. Interview with Ken Tanner and Brian Gilley, supra note 4. 6. COQUILLE INDIAN TRIBAL CODE § 740.010(2) (2008) [hereinafter CITC]. 7. See CITC § 740.010(1). 8. Interview with Ken Tanner and Brian Gilley, supra note 4. 9. Defense of Marriage Act of 1996, 1 U.S.C. § 7 (2000). 10. CITC § 740.010(3)(b). The Coquille Indian Tribe, Same-Sex Marriage, and Spousal Benefits 511 discusses same-sex marriage in Indian Tribes, including cultural traditions and the present tribal views on same-sex marriage. Part III encompasses a case study involving spousal rights for same-sex couples married by the Coquille Indian Tribe and registered as domestic partners by the state of Oregon within the end of life and estate planning context. This includes examining the probate of non-trust property, probate of trust property, medical decisions, anatomical gifts, disposal of human remains, guardianships, and health insurance. Part IV provides several important notes regarding the intended scope of this article. I. MARRIAGE AND MARRIAGE ALTERNATIVES IN THE UNITED STATES The dominant definition of marriage, which largely remains an institution reserved for individuals of the opposite sex, is subject to strong criticism as it relies on several problematic assumptions: (1) there is a bright-line between people who are absolutely male or female;11 (2) marriage is necessary to promote or ensure responsible procreation;12 and (3) marriage promotes social goals of morality.13 This portion of the article will discuss why these assumptions are problematic and why adopting a definition of marriage based upon these assumptions frustrates any argument favoring marriage as a superior institution that should be reserved for couples of opposite sex. This section will explore one, albeit radical, method for alleviating discrimination against same-sex couples. Finally, this section discusses that while this radical proposal, along with many others, may present worthy goals for the future, same-sex couples need a practical understanding to navigate a legal framework that does not recognize their status as a committed couple. A. The United States’ View on Marriage The United States defines marriage, both federally and in most states, as a union reserved for individuals of the opposite sex.14 Congress codified this belief in the Defense of Marriage Act (DOMA) enacted in 1996.15 Most states have taken similar legislative action to ban same-sex marriage.16 However, three 11. See infra text accompanying notes 60-69. 12. See infra text accompanying notes 70-95. 13. See infra text accompanying notes 96-105. 14. 1 U.S.C. § 7 (2000); NATIONAL CONFERENCE OF STATE LEGISLATURES, SAME-SEX MARRIAGE, CIVIL UNIONS, AND DOMESTIC PARTNERSHIPS, http://www.ncsl.org/programs/cyf/samesex.htm (last updated May 2008) [hereinafter STATE SURVEY]. 15. 1 U.S.C. § 7. 16. STATE SURVEY, supra note 14. 512 Arizona Journal of International & Comparative Law Vol. 26, No. 2 2009 states’ judiciaries—Connecticut, California, and Massachusetts—have found that banning same-sex marriage is unconstitutional under their state constitutions.17 Congress enacted DOMA in response to pending litigation by same-sex couples who asserted that precluding same-sex couples from marrying in Hawaii was unconstitutional.18 The United States House of Representatives stated two important purposes, among others, for enacting DOMA: to “defend the institution of traditional heterosexual marriage,” and to “protect the right of the States to formulate their own public policy regarding the legal recognition of same-sex unions.”19 Accordingly, DOMA consists of two provisions in the United States Code: (1) a statutory definition,20 and (2) a statutory exception to the Full Faith and Credit doctrine.21 Prior to the threat of legalized same-sex marriage, the House of Representatives recognized that the federal government relied on states to define valid marriages for the purposes of applying federal statutes and regulations that gave rights and benefits to married spouses.22 In an effort to preempt questions concerning the scope of federal benefits to married couples, DOMA defined “marriage”—a word that in 1996 appeared in over 800 sections of federal law—as “a legal union between one man and one woman as husband and wife.”23 In addition, this statute defines the word “spouse” to refer “only to a person of the opposite sex who is a husband or a wife.”24 Based on the federal definition of “marriage” and “spouse,” and unless later amended by Congress, the United States government does not recognize any marriage falling outside the contours of the definition above (i.e.
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