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Same-sex marriage is now law of the land. But is it on the res?

The legal system in the United States is considered the best in the world by many standards. That does not mean it is without complications, and the practice of family law is not immune.

One reason there can be difficulties is because there are so many different layers of jurisdiction competing for control over social conventions. Most readers in Minnesota are likely familiar with the notion that we have federal, state, county and local ordinances. Fewer may be familiar with yet one more jurisdiction in the state -- the law on reservation lands of the various Native American tribes.

Tribal sovereignty rights can pose unanticipated legal quandaries -- especially where family law is concerned. As an example, simply consider the issue of same-sex marriage.

As most everyone likely knows, same-sex couples can now legally marry, regardless of what the law may once have been. The U.S. Supreme Court ruled that bans against same-gender individuals is illegal. Minnesota law has allowed such marriages for several years now.

One might conclude that the issue would therefore be resolved. However, as some students of Native American culture observe, it isn't that simple.

There are reportedly 567 tribes with nation recognition from the federal government. Each is considered a sovereign land that is not bound by the U.S. Constitution. The laws of some expressly acknowledge the validity of same-sex marriage. Some tie their marriage laws to those of the state in which they exist. Still others, like the Navajo Nation, ban gay marriage.

The Ak-Chin Indian Community in Arizona is one that does not recognize same-sex marriage. The ban is now the subject of a lawsuit by a lesbian community member who is married to her partner, but who is denied the right to live in her tribal home. She is suing in tribal court arguing that she is being denied equal protection and due process under the tribe's constitution, which echoes some provisions in the federal Indian Civil Rights Act.

How this battle plays out is something attorneys with experience in tribal law will surely be watching with interest.

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