You have requested our opinion as to whether the "marriage" between Bernard and Madeleine
F~ is recognized as a marriage in the State of Wisconsin, thus giving the claimant
the status of spouse for entitlement to Social Security benefits. In our opinion,
Madeleine F~ should be SO recognized.
The following facts are relevant to our determination. The wage earner, Bernard F~,
was a Chippewa Indian who married the claimant, Madeleine W~ on April 20, l940. The
claimant is a white woman. Their civil divorce became final on July 28, 1946.* A stipulation
in the divorce decree apparently provided that the wage earner and the claimant were
not to live together again for at least one year. Nevertheless, within six months
of the issuance of the decree, they resumed living together on the Bad River Indian
Reservation in Odanah, Wisconsin. Because a full year had not elapsed, the couple
apparently believed they still were married. In order to reaffirm their marriage vows
to themselves and to the community, Henry M~ the spiritual leader of the Bad River
Tribe, performed a spiritual ceremony according to Indian custom. Leo H. L~, an elder
of the Red Cliff Band of Lake Superior Chippewa Indians, informed your office that
no details of the ceremony could be discussed without the express consent of Mr. M~
who now was deceased.
In August 1985, the claimant's attorney submitted a statement signed by four persons
indicating that the wage earner moved back into the claimant's home approximately
six months after their divorce and the couple continued to live together as husband
and wife until the wage earner's death. In January 1987, the claimant additionally
submitted the notarized statements of four persons who individually attested that
"[a]s a member [of the Dad River Band of Lake Superior Chippewa Indians, they could]
personally attest that Madeleine W~ F~ and Bernard F~ lived together as husband and
wife . . . from the late 1930's to the late 1940's, at which time they moved from
the area. Mr. L~ stated that the basis for an Indian custom marriage is living together
on the reservation and that the tribe does not maintain marriage records. The Bad
River Tribal Council, Enrollment Branch, Odanah, Wisconsin concurs.
The claimant filed for wife's benefits on July 13, 1973 and was awarded such benefits
effective July 1972. The wage earner filed an application on behalf of his child,
Rita F~ on July 6, 1973 and received these benefits as payee from July of 1972 through
January of 1978. In December 1977, claimant filed an application to be the child's
payee as she and the wage earner had been separated for three years and the daughter
lived with her. The wage earner agreed to the change, although he indicated the separation
was for almost two rather than three years. The wife's benefits continued until April
of 1979 and terminated when the child became eighteen years of age.
The wage earner died on August 22, 1981. The claimant filed for widow's benefits on
October 26, 1981. She stated on the application they she and wage earner did not go
through an Indian custom or tribal marriage. On January 4, 1982, a determination was
made that claimant was not the wage earner's wife when she filed for benefits on July
13, 1973. On January 8, 1982, she also was denied surviving divorced wife's benefits
for failure to establish a ten-year marriage. In response to the determination, the
claimant indicated that she believed the marriage remained valid. She provided a real
estate mortgage recorded January 24, 1966 that was executed and signed by the couple
as husband and wife and as joint tenants.
You have requested that, in providing our opinion, we address the following issues:
(1) whether the evidence of cohabitation submitted is sufficient to establish a marriage
under tribal customs and laws; (2) whether a tribal marriage was impossible because
the claimant was white, and (3) whether Wisconsin recognizes a tribal custom marriage.
This office previously has stated that Wisconsin will recognize Indian custom marriages
of Indians living in tribal relations even where they are citizens of the State. See
Chadwick T~, SSN ~, RA V (Mills) to M. B~, Chicago, Illinois, 8/21/64. Where the Indian
party to a custom marriage between an Indian and a white person is part of a group
maintaining a tribal relationship, has customs or laws relating to a tribal marriage,
and has not adopted white man's ways for intra-tribal affairs, Wisconsin will recognize
the marriage under the theory that the Indians have limited sovereignty over their
domestic relations and that a marriage valid in such foreign jurisdictions will be
valid in Wisconsin.
Id.; see also 52 Am. Jur. 2d Marriage §98 (l970); Memorandum, Marital relationship"
of Choctaw Indians, (Walters) to S. C~, 11/23/83 (Lexis).
In another opinion regarding Chadwick T~, this office also noted that State law does
not apply to intra-tribal domestic relations. Chadwick T~, SSN ~, RA V (Mills) to
M. B~, Chicago, Illinois,
6/11/65, citing 37 Op. Att'y Gen. Wisc. 213 (1948). In a more recent opinion, the
Wisconsin Attorney General reiterated the earlier position that family matters are
essential tribal relations in which states should not be involved. 70 Op. Att'y Gen.
Wisc. 237 (1981).
In the 1965 Chadwick T~ opinion, this office evaluated the validity of a marriage
between a white woman and a Winnebago Indian. According to witnesses, the marriage
was accomplished when the chief formally adopted the woman into the tribe and gave
her an Indian name, and the couple began living together as husband and wife. The
author of the memorandum stated:
Indian custom marriages in Indian country between whites and tribal Indians have a
long history of being recognized as valid by individual States under substantially
the same reasoning by which custom marriages between full-blooded Indians are recognized.
(Citations omitted). An especially significant case is Cyr v. Walker, ll6 Pac. 931 (Okla. l9ll ) where a "custom marriage between an Indian woman and a
white man, who like the claimant in the subject case had been adopted into the tribe,
was upheld. To the same effect is the following quote from Restatement of the Law,
Conflict of Laws, §l2B, supra, Illustration No. l:
"If a white woman, living in a trading post near an Indian tribe, marries B~, a tribal
Indian, in the tribe; the marriage is valid and will be so held when its validity
comes into question in any state."
The Chadwick T~ opinion explains that Congress, on August 15, 1953, withdrew the prohibition
against State interference in intra-tribal domestic relations and other matters involving
Indians in Wisconsin and other States. 18 U.S.C. §1162." However, that case was concerned
with matters originating prior to that time. The abstract of the General Counsel's
opinion of June 11, 1965 summarized that portion of the opinion as follows:
In Wisconsin, prior to 53/08/15 [sic], if an Indian community had the status to create
an Indian custom marriage between full-blooded members of the tribe, it also had the
status to create a valid custom marriage between a full-blooded member and a Caucasian
who was adopted into the tribe.
We believe that the statement pertains to the particular facts of the Chadwick T~
case. We are not of the opinion that, in order for an Indian custom marriage to be
valid, the tribe must "adopt" the Caucasian spouse. Rather, if the tribe generally
recognizes the validity of a marriage of a tribal member and a Caucasian, whether
adopted or not, then Wisconsin also will view the marriage as valid.
In the instant case, the Tribal Council has indicated that "couples are considered
married simply by living together on the reservation." Whether or not the claimant
knew of or believed in the validity of this arrangement does not preclude the State's
recognition of it as a valid marriage. Additionally, numerous persons attested to
the relationship between the wage earner and the claimant. Moreover, the claims file
includes documentation in which these persons represented themselves as husband and
wife. The Supplemental Statement of Mr. L~ dated May 13, 1987 expressly refers to
the marriage of the F~. Thus, specifically in response to your questions: (1) the
evidence of cohabitation submitted sufficiently establishes a marriage under the tribe's
customs and laws; (2) the fact that the claimant spouse was never a tribal member
does not preclude the validity of the marriage, and (3) the State of Wisconsin would
recognize this marriage.
* There is discussion in the file that the couple "divorced" on July 28, 1945 and
August 21, 1945 but "proof of a divorce decree indicated the divorce became final
on July 28, 1946.