PR 05905.055 Wisconsin

A. PR 88-012 Recognition of Marriage Performed by Bad River Band of Lake Superior Chippewa Indians Under Wisconsin Law: Bernard F~, a/k/a Roland B. F~, SSN ~ DATE: May 23, 1988

1. SYLLABUS

If an Indian tribe recognizes the validity of a marriage of a tribal member and a Caucasian, Wisconsin will also view this marriage as valid. It would not be necessary for the purposed spouse to know or believe in Tribal Council's acceptance of a "common-law" marriage for the state to recognize the marriage. Intra-tribal family matters are essential tribal relations in which States should not be involved. (F~ Bernard, ~ - RAV [Jackson] to ARC, Progs., Wisconsin, 05/23/88)

2. OPINION

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.


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PR 05905.055 - Wisconsin - 04/30/2008
Batch run: 01/27/2009
Rev:04/30/2008