Same-sex marriage provisions approved by Ho-Chunk Legislature

By Ken Luchterhand

With approval by the Ho-Chunk Nation Legislature, same-sex marriages now have legal rights within the Ho-Chunk law.
On June 5, the Legislature approved an amendment to the Marriage Ordinance, which was originally adopted on October 19, 2004.
The amendment was introduced by Rep. Henning Garvin and seconded by Kathyleen Lone Tree-Whiterabbit. It passed with a 13-0 vote.
The United States Supreme Court ruled on June 26, 2015, that gay and lesbian couples have the same right to marry as heterosexual couples. The topic has proven to be one of the most contentious social issues in U.S. history.
“We began work on the marriage ordinance this past fall essentially in response to a housing concern,” Garvin said. “In the previous version of the ordinance, common-law marriage was recognized, with the only provision being that individuals who were cohabitants for seven years or more would be recognized as married and receive the same benefits as married couples.”
This has posed issues especially in some probate cases when there arises a dispute or disagreement within families on whether or not someone really was a cohabitant for an entire seven years, Garvin said. This situation puts the courts in an awkward situation of having to determine heirship in a “he said - she said” situation.
“So, we drafted amendments that would allow individuals who have been cohabitants for that period of time to instead register with our courts as a domestic partnership, which would also be recognized the same as a formal marriage,” Garvin said. “The registering will take away most of the ambiguity in these cases and will hopefully help families avoid a potentially difficult probate process especially when they are already dealing with the loss of a loved one. While we were doing so, it was noticed that our ordinance still designated a marriage as being recognized only between a husband and wife (i.e. man and woman).
Changes in the Marriage Ordinance added the words “or domestic partnership” to the word “marriage” and, in one instance, changed the words “husband and wife” to “spouses.”
The biggest change was in the Section 10, “Common Law Marriage,” which was changed to heading “Domestic Partnership.” In that paragraph, the words “a male and female” was changed to “couples.”
In addition, majorities of two sentences were added or changed, which now reads, “Couples who have resided together for at least seven years or more may register with the Ho-Chunk Nation Trial Court as having entered into a domestic partnership. Those couples, having entered into a domestic partnership shall enjoy the same legal treatment as partners who formalize their marital relationship in Section 9.”
“First, I feel the Nation needs to be inclusive as possible to all of our people, and I also feel that the government has no business in telling people who it is they can or cannot love or who it is they can or cannot marry, regardless of sex,” Garvin said.
 “I actually regret having not realized the ordinance was written this way earlier in my term so I could’ve made the change much sooner. Secondly, in 2015 in the Obergefell v. Hodges case the Supreme Court of the United States ruled that same-sex marriage was a fundamental right guaranteed under the U.S. Constitution, and so under federal law no one within the jurisdiction of the United States has the legal ability to deny such unions. The new amendments went into effect with the adoption that took place at this past legislative meeting.”
Earlier this year, on April 5, the Ho-Chunk Insurance Department addressed the issue of same-sex marriage by revising its Master Plan Document in the section Dependent Eligibility, which now appears in the Auxiant handbook.
With the changes, the section “Lawful Spouse” was deleted and replaced with an updated version. It reads:
Lawful Spouse: An employee’s lawful spouse in the state of residence, living in the same country, if not legally separated or divorced. The Plan Administrator may require documentation providing a legal martial relationship. This includes same-sex spouses where a same-sex marital relationship is recognized as legal under applicable state or federal law. Not considered eligible for spousal coverage:  a) Common law spouses and b) Domestic partnerships.
As far as same-sex marriage in Ho-Chunk culture, the lines are not so clear.
In Ho-Chunk Traditional Court, where the customs and traditional ways of the Ho-Chunk people are upheld and maintained, some Traditional Court officials were unaware of the change and were unaware of the existence of the Marriage Ordinance.
They indicated that they did not form an opinion on same-sex marriages because the procedure was a legal one, something that was not part of the Ho-Chunk culture.
“There was no such thing as paper (back then),” said Andy Thundercloud. “In our ancient culture, marriage licenses didn’t exist before.”
Although legal marriage, in general, is a recent development in the history of the Ho-Chunk people, the existence of gay and lesbian people have been known and accepted within societies.
“If you look at any society, in any civilization, people like that have been present and acknowledged in those societies,” said Cecil Garvin.
“We have our clan system with each person having their responsibilities within the tribe. They still have those duties no matter who they are,” Garvin said.
“We do not endorse anything, we’re not saying anything and we’re not taking a stance,” Garvin said. “I believe the action by Legislature was only to comply with the court.”
As far as the ethical and moral aspect of same-sex marriages, one of the officials had a conflict with the concept.
“When you were a young person, you had a mother and a father. Correct?” Thomas Hopinkah asked a male member present in the Traditional Courtroom. “Did your mother say to you, ‘One day, go out and find yourself a good husband?’”