The Oklahoma Bar Journal January 2026

are still felonies in Oklahoma, each of which could result in up to five years imprisonment, 17 those who practice those kinds of sexual rela tionships usually stay quiet about it. However, a discerning attorney will want to know how tribal peo ple arrange their relationships and their intentions about responsibili ties, children and property. Oklahoma’s case law explains the functional and practical prob lems that arise with tribal cus tomary marriages. For instance, in 1912, the Oklahoma Supreme Court affirmed the customary “divorce” from the customary “marriage.” 18 The woman had a child of an enrolled member of what is now known as the Peoria Tribe of Indians of Oklahoma when she and the father purported to have a customary marriage. They “quit living together” a few days after the child died as an infant, and the mother later mar ried another man under Oklahoma law and lived with him until his death. It could be argued that the customary divorce was a vehicle for the court to nullify what it did not want to have to recognize – a customary marriage. However, in a 1926 case, the Oklahoma Supreme Court upheld the validity of the Muscogee Creek Nation’s custom ary marriages if they predated a tribal law in 1881 that purportedly banned customary marriages and divorces. 19 That case affected how the court ruled upon inheri tance and guardianship claims by descendants from the marriage. In an earlier case, a Canadian was adopted by the Pottawatomie Tribe of Indians (now known as the Citizen Potawatomi Nation) after marrying a member:

The adoption ... by the tribe did not make him a citizen of the United States – he still remained a foreigner as to the federal govern ment – but did make him a mem ber of said tribe, and bestowed upon him the privileges and immunities of its other members, and subjected him to its laws and usages, among which were the customs and laws of the tribe reg ulating marriage and divorce. 20 The most important and essen tial thing to do is to consult the laws of the tribe in question. For instance, the Kiowa Tribe defines marriage as “a personal relationship between two individuals arising out of a civil contract to which the consent of the parties is essential, and typically any two persons may marry.” 21 The Kiowa Tribe may issue mar riage licenses pursuant to its code. There are nuances, however. “No particular form of marriage ceremony is required,” the code says, though a license is required for a ceremony. 22 More importantly, the practitioner must be aware of how to interpret the Kiowa Family Code, which empha sizes tribal customary law as manda tory and not just persuasive precedent: The provisions of this Code shall be interpreted to be in accor dance with tribal customary law. Whenever there is uncertainty or a question as to the interpretation of certain provisions of this Code, tribal law and custom shall be controlling, and where appropriate, may be based on the written or oral testimony of a qualified tribal elder, tribal historian, or tribal representative. If the traditions and customs of the Tribe are inconclu sive in any matter, the Court shall construe it consistently with applicable textual tribal law.

themselves. 12 Sometimes, tribal customary marriages are trans acted at the same time as a state marriage license, like the Osage wedding as described by one newspaper reporter in 1927. 13 Tribal customary marriage dif fers from common-law marriage in certain ways, as it turns on whether the parties seek authorization by the state. In Oklahoma, there are 38 of the 574 federally recog nized tribes with jurisdictions in Oklahoma, 14 along with members from tribes across North America and beyond. Many of these tribes either have their own court systems or function under the federal Court of Indian Offenses. Tribes may issue their own licenses, but those are distinct from tribal customary marriages. Some tribes recognize customary marriages, some do not. The state of Oklahoma provides “full faith and credit to the records and judicial proceedings of any court of any federally recognized Indian nation, tribe, band or polit ical subdivision thereof, including courts of Indian offenses.” 15 While the Court of Indian Offenses can issue marriage licenses, customary marriages are accepted if the tribe accepts them but prohibited if a tribe prohibits them. 16 While bigamy is prohibited under federal, state and tribal laws, there are some tribal cultures that unofficially practice (but officially frown upon) certain forms of polygamy, with a man having mul tiple “wives.” Some women even have multiple “husbands.” Rarely do these kinds of arrangements become more than polyamory, and never can they be approved by any court in Oklahoma, but some times, tribal people represent to the community that they have multiple spouses. Since adultery and bigamy

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.

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THE OKLAHOMA BAR JOURNAL