The Oklahoma Bar Journal January 2026

In the absence of applicable tribal customary law or textual tribal law, the Court shall con strue it consistently with appli cable federal law. 23 In fact, tribal custom marriages are considered to be valid marriages under the Code of Federal Regulations if they are properly registered with the Court of Indian Offenses. 24 By comparison, the Chickasaw Nation defines marriage as “a per sonal relation arising out of a civil contract between two individuals to which the consent of parties legally competent of contracting and of entering into it is necessary, and the Marriage relation shall be entered into, maintained or abro gated as provided by law.” 25 It then defines common-law mar riage to include “a personal relation ship arising out of tribal customs and traditions or from common law of a tribe, state or nation wherein the parties entered Marriage.” 26 Therefore, a court arguably finds a customary Chickasaw mar riage valid if it is consistent with “tribal customs and traditions,” even if they may not be consistent with elements of common-law marriage in Oklahoma. Holding a ceremony may vary according to tribal traditions. For instance, some expect gift-giving by the prospec tive husband to the prospective wife’s family, but some do not. The relationship may be as simple as a common and private agreement to have a customary marriage and a similar common and private agree ment to be divorced. Of course, this creates problems when discussing child custody and related issues. That is part of why the Kiowa Family Code references customs and traditions when analyzing the best interests of children. 27

In Oklahoma, with so many tribal nations and people, a family law practi tioner should always inquire with new clients whether they are members of or could be members of an Indigenous tribe, despite how the person may look. Then identify the specific tribe and quickly research online whether the tribe has courts and codes. Many tribal courts provide up-to-date codes online. When in doubt, call the court clerk and ask for copies. To be thorough, discuss with the client what their intentions were in the relationship in question (to be married, not be married, tradition ally or not, etc.), determine whether that tribe’s laws affirm the intended relationship and decide whether asserting the validity of the tribal customary marriage helps or hurts what the client wants to accomplish (divorce, probate or whatever). Too many practitioners and judges simply choose to ignore tribal laws and cus toms. Yet, that ignores the need to be respectful and thorough for tribal cli ents and even opposing parties. This article is not an exhaustive study of all tribes, but it does highlight important and subtle nuances with some tribes. In the age of growing tribal self-determination and assertions of jurisdiction post- McGirt , 28 Oklahoma attorneys have fresh awareness of the existence of complications when applying tribal values, customs and laws to a family law matter. Some frankly and loudly reject the idea of having to think that way, but that endangers and even disrespects a tribal client. Consider all of this in the context of an increase in anyone sim ply wanting a relationship without the bonds of marriage – people make their own choices every day. Sometimes, their choice is to be married or divorced and not worry about whether the state of Oklahoma approves or not. CONCLUSION

This works in theory until a probate case, or something along those lines, complicates the analysis.

ABOUT THE AUTHOR

Kevin R. Kemper practices at his law firm in Guthrie.

ENDNOTES

1. 43 O.S. §§1-7. 2. Id. at §1. 3. Id. at §§4-7.

4. Id. at §7. 5. Id. at §8.

6. Standefer v. Standefer , 2001 OK 37, ¶11, 26 P.3d 104, 107, quoting James v. Adams , 1915 OK 896, 155 P. 1121 and Buck v. Branson , 1912 OK 616, 127 P. 436, quoting Reaves v. Reaves, 1905 OK 32, 15 Okla. 240, 82 P. 490 and Maxfield v. Maxfield , 1953 OK 390, P24, 258 P.2d 915 and 921. 7. In re Estate of Hornback , 1970 OK 142, P14 (Okla. 1970) . 8. In re Estate of Whitehouse, 2020 OK CIV APP 59, 479 P.3d 230, 2020 Okla. Civ. App. Lexis 36, 2020 WL 6816417. 9. Matthew L.M. Fletcher, “Rethinking Customary Law in Tribal Court Jurisprudence,” (Michigan State University College of Law Indigenous Law & Pol’y Ctr., Working Paper No. 2006-04, 2006), https://bit.ly/4acgobA. 10. Coker v. Moore , 1926 OK 556, ¶4, 249 P. 694, 696. 11. Allen v. Smith , 1936 OK 600, P10 (Okla. 1936). 12. Id. at ¶14 , citing Congressional Act of May 2, 1890, 26 Stat. 98. 13. Morgan M. Guzman, “Tribal Ceremony Ends Festivities of Osage Wedding,” Sequoyah National Rsch. Ctr. (May 29, 1927), https://bit.ly/4q2dfjd, quoting “Tribal Ceremony Ends Festivities of Osage Wedding,” Daily J. Cap. (Oklahoma City), May 29, 1927, at 1. 14. 87 Fed. Reg. 4636 (Jan. 12, 2023), https://bit.ly/4a41ggh. 15. 12 O.S. §728. 16. 25 C.F.R. §11.603. 17. 21 O.S. §§871-872 (2024) (adultery) 21 O.S. §§881-884 (2024) (bigamy). 18. Buck v. Branson, 1912 OK 616, 34 Okla. 807, 127 P. 635 (Okla. 1912). 19. Coker v. Moore, 1926 OK 556, 121 Okla. 219, 249 P. 694, 1926 Okla. LEXIS 122 (Okla. 1926), citing Law of October 2, 1881, by the Creek Tribe of Indians (now Muskogee (Creek) Nation). 20. Cyr v. Walker, 1911 OK 252, ¶17, 29 Okla. 281, 116 P. 931, 1911 Okla. LEXIS 287 (Okla. 1911). 21. Kiowa Family Code §3-1. 22. Id. at §3-4. 23. Id. at §1-5. 24. 25 C.F.R. §11.600 (b)(2), www.law.cornell.edu/cfr/text/25/11.600. 25. Chickasaw Nation Code, §6-101.5 (A), https://code.chickasaw.net/Title-06. 26. Id. at (B). 27. Kiowa Family Code §5 passim. 28. McGirt v. Oklahoma , 591 U.S. 894 (2020).

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.

50 | JANUARY 2026

THE OKLAHOMA BAR JOURNAL