Law students and attorneys tend to think that there are only two types of recognized marriages in Oklahoma – license marriages and common-law marriages – and that each requires a statutory divorce.[1] However, there has been and continues to be a third legally valid way to get married and even divorced in Oklahoma: traditional tribal customary marriages or divorces in certain circumstances. Not everyone can be married or divorced in this way, but some are, despite the legal complications that arise from these types of arrangements.

As someone whose practice includes family law throughout state and tribal courts, as well as personal involvement with tribal gatherings and ceremonies, I see a growing number of people who choose this third and valid way to be married. I also hear a growing number of questions and even consternation from family law practitioners and judges about this issue. This article explains the concept in the context of the history of marriage in Oklahoma and provides practice tips for practitioners when they encounter Indigenous people who want to get married or divorced, resolve probate disputes and more in their customary ways.

THE BASICS OF OKLAHOMA MARRIAGE – FACTS AND FICTION

Under Title 43 of the Oklahoma Revised Statutes, the state defines marriage as “a personal relation arising out of a civil contract to which the consent of parties legally competent of contracting and of entering into it is necessary, and the marriage relation shall only be entered into, maintained or abrogated as provided by law.”[2]

A district judge or county court clerk may issue a marriage license.[3] Then, “a formal ceremony” takes place with at least two witnesses and an officiant, usually a judge or a recognized and approved religious leader.[4] After that, the license must be returned to and recorded by the court clerk in a timely manner.[5]

On the other hand, courts recognize common-law marriage in Oklahoma, which means a license has not been obtained, though the parties intend to be married. As the Oklahoma Supreme Court has explained:

A common law marriage is formed when “the minds of the parties meet in consent at the same time.” Some evidence of consent to enter into a common-law marriage are cohabitation, actions consistent with the relationship of spouses, recognition by the community of the marital relationship, and declarations by the parties. The person seeking to establish a common-law espousal relationship has the burden to show by clear and convincing the existence of the marriage.[6]

Thus, it is a fact-specific inquiry made by a court. As the Oklahoma Supreme Court has said:

A common law marriage is based on a present assumption of an existing relationship, not upon what the parties intended or have agreed to do at a future time. To constitute a valid marriage per verba de praesenti there must be an agreement to become husband and wife immediately from the time when the mutual consent is given.[7]

For most practitioners, the analysis stops there – if a marriage exists, it must be by license or common law. Simply living together does not mean a couple is married under common law in Oklahoma, especially when there are multiple sexual partners, unless there is evidence of intentions for a common-law marriage.[8] But those two types of marriages are notions of Western law, not necessarily tribal customary law.

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 attention, like in traditional Choctaw culture. Perhaps he provided gifts, like horses, to her father, like in traditional cultures of certain 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 customary 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 themselves.[12] Sometimes, tribal customary marriages are transacted 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 differs 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 recognized 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 political 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 multiple “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 sometimes, tribal people represent to the community that they have multiple spouses. Since adultery and bigamy are still felonies in Oklahoma, each of which could result in up to five years imprisonment,[17] those who practice those kinds of sexual relationships usually stay quiet about it. However, a discerning attorney will want to know how tribal people arrange their relationships and their intentions about responsibilities, children and property.

Oklahoma’s case law explains the functional and practical problems that arise with tribal customary 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 married 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 customary 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 inheritance 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 government –⁠ but did make him a member 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 regulating marriage and divorce.[20]

The most important and essential 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 marriage 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 emphasizes tribal customary law as mandatory and not just persuasive precedent:

The provisions of this Code shall be interpreted to be in accordance 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 inconclusive in any matter, the Court shall construe it consistently with applicable textual tribal law. In the absence of applicable tribal customary law or textual tribal law, the Court shall construe it consistently with applicable 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 personal 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 abrogated as provided by law.”[25]

It then defines common-law marriage to include “a personal relationship 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 marriage 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 prospective 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 agreement 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 practitioner 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, traditionally 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 customs. Yet, that ignores the need to be respectful and thorough for tribal clients 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.

CONCLUSION

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

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COMPARATIVE SUMMARY

Factor	Licensed Marriage	Common-Law Marriage	Tribal Customary Marriage
Legal Definition	"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)
License Required?	Yes (mandatory)	No	Depends on tribal law
Ceremony Required?	Yes (with two witnesses)	No	Varies by tribe
Proof Standard	Automatic upon filing	"Clear and convincing evidence" (Standefer)	Tribal certification or proof of custom under tribal law
Timing Requirement	Formal ceremony required	"Present assumption of existing relationship" (Hornback)	Varies by tribal custom and law
Cost	$5-50	Litigation costs if disputed	Varies (often minimal or free)
Who Can Marry?	Any eligible resident	Any eligible resident	Tribal citizens (rules vary by tribe)
Governing Authority	43 O.S. §§1-7	Standefer, Reaves and Maxfield	Tribal codes, Coker and Allen recognition and federal sovereignty (Martinez, William and CFR)
State Recognition	All 50 states and international	Oklahoma and most states (if proven)	Oklahoma (12 O.S. §728) and federal law
Cultural Significance	Secular/religious blend	Relationship-based autonomy	Preservation of Indigenous traditions and tribal self-determination

 

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ABOUT THE AUTHOR

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

 

 

 

 

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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).