The Oklahoma Bar Journal January 2026

COMPARATIVE SUMMARY

Common-Law Marriage

Factor

Licensed Marriage

Tribal Customary Marriage

“Personal relation arising out of a civil contract” (43 O.S. §1)

“Minds of the parties meet in consent at the same time” ( Standefer )

“Marriages ... according to usages and customs of their tribe” ( Coker )

Legal Definition

License Required? Ceremony Required?

Yes (mandatory)

No

Depends on tribal law

Yes (with two witnesses) No

Varies by tribe

“Clear and convincing evidence” ( Standefer ) “Present assumption of existing relationship” ( Hornback ) Litigation costs if disputed Any eligible resident Standefer , Reaves and Maxfield Oklahoma and most states (if proven) Relationship-based autonomy

Tribal certification or proof of custom under tribal law

Proof Standard

Automatic upon filing

Formal ceremony required

Timing Requirement

Varies by tribal custom and law

Cost

$5-50

Varies (often minimal or free)

Who Can Marry?

Any eligible resident

Tribal citizens (rules vary by tribe) Tribal codes, Coker and Allen recognition and federal sovereignty ( Martinez, William and CFR ) Oklahoma (12 O.S. §728) and federal law Preservation of Indigenous traditions and tribal self-determination

Governing Authority

43 O.S. §§1-7

All 50 states and international

State Recognition

Cultural Significance

Secular/religious blend

Plains tribes, including the Osage, Kiowa and Comanche. This “marriage” is based upon the customs of the particular tribe(s). Professor Matthew L.M. Fletcher noted these applications of custom ary and traditional laws and how, even in tribal courts, the concepts are hard to recognize and enforce. 9 Almost 100 years ago, the Oklahoma Supreme Court in Coker v. Moore recognized that “marriages, contracted between tribal Indians according to the usages and customs of their tribe, at a time when the tribal government and relations are existing, will be upheld by the courts, in the absence of a federal law rendering invalid the laws and customs of the tribe.” 10

That is, a tribal customary marriage has been and continues to be valid in Oklahoma. In its most simplistic form, a tribal customary marriage involves the intent of the parties to be married and some kind of tribal recognition, either through a public ceremony or even an informal acknowledgment. As the Oklahoma Supreme Court said in 1936, “In marriage by tribal custom the consent may be either expressed or implied, but nevertheless there must be some fact or circumstance inferring such necessary consent.” 11 In the Allen case, the court also noted how the Congressional Act of May 2, 1890, only legitimized tribal customary marriages that were recognized by the tribes

TRIBAL CUSTOMARY MARRIAGE: VALID THEN AND NOW Suppose a man is a member of an Oklahoma tribe, as is the woman he wishes to marry. Rather than going to a courthouse for a license or simply telling everyone (including the IRS) that they are married, the couple goes through a cultural ceremony, where an elder and the community that gathers provide a blessing and recognition. Perhaps he playfully tossed pebbles at the woman he wanted to marry to get her atten tion, like in traditional Choctaw culture. Perhaps he provided gifts, like horses, to her father, like in traditional cultures of certain

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

48 | JANUARY 2026

THE OKLAHOMA BAR JOURNAL