You have requested our opinion as to whether the State of Mississippi recognizes as
valid the common-law-type marriage which was provided for in the 1981 Choctaw Domestic
Relations Code. You have also queried whether the divorces and annulments granted
by the Choctaw Tribal Court are recognized as valid by the State of Mississippi.
The power to regulate marriages within a State belongs to that State and not to Congress
or another State; but Congress has power and control over marriage in the territories
of the United States, in the District of Columbia, and between members of certain
Indian tribes. American Indians, because of their quasi-sovereign status, occupy a
distinct position with respect to American jurisprudence; they are entitled to marry
according to the customs of their tribe if they are living in a tribal relation and
if the tribe's right to internal self-government has not been superceded by Federal
law or by State law under Federal authorization, and their marriages will be recognized
as valid in State and Federal courts. U.S. v. Quiver, 241 u.s. 602 (1916); Carney v. Chapman, 247 U.S. 102 (1918); Hallowell v. Commons, 210 F.793, aff'd. 239 U.S. 506 (1916). This is true even though the marriage does
not conform to the statutory requirements of the State in which the tribe is located.
Hallowell v. Commons, supra.
Indian marriages are considered neither ceremonial marriages nor common-law marriages,
but are valid marriages according to the custom and law of the tribe to which the
parties belong. 52 Am.Jur.2d, Marriage §98; LaFramboise v. Day, 136 Minn. 239, 161 N.W. 529. Similarly, divorces and annulments in accordance with
Indian law will be recognized as valid elsewhere. LaFramboise v. Day, supra; Palmer v. Cully, 52 Okla. 454, 153 P.154. It is not considered essential to the application of the
general rule for recognition of the divorce that both spouses be of Indian blood.
Cyr v. Walker, 29 Okla. 281, 116 P.931.
It is our opinion that the Choctaw Indian tribe has the inherent power to regulate
the domestic affairs of their members. As noted above, Federal statutes may be adopted
by Congress taking away jurisdiction over domestic affairs from tribal authorities
and giving it to State authorities. This office contacted Mr. Mike C~ of the Solicitor's
Office for the Bureau of Indian Affairs on November 9, 1983; he informed us that no
Federal statute has been adopted taking away the jurisdiction over domestic affairs
from the Choctaw tribal authorities.
This office also spoke with Mr. Edmund S~ of the Legal Services office for the Choctaw
Indian Administration); Mr. S~ wrote the majority of the 1981 Choctaw Domestic Relations
Code. By way of background information, Mr. S~ stated that on Indian reservations
in Mississippi, as in most States, Indian tribal governments exercise civil jurisdiction
over tribal members to the exclusion of the State. In the absence of tribal laws,
the Bureau of Indian Affairs' regulations as set forth in Title XXV of the Code of
Federal Regulations (C.F.R.) apply. 25 C.F.R. §11.l(b) and (d). The regulations promulgated
by the Bureau are general and the Choctaws operated under these regulations until
their own code was enacted effective September 1, 1981. The C.F.R. allowed and recognized
tribal custom marriages and divorces. With the adoption of a code, the Choctaw tribe
was attempting to come into conformity with the State laws while retaining certain
centuries-old practices.
The Choctaw Tribal Code parallels Mississippi law on marriage, annulments and divorce
with the exception of a factor, tribal custom, which varies based on 25 C.F.R. Title.
25 C.F.R. §11.28 provides that Indians may become married or divorced by the custom
of the tribe pending any determination on these matters by the tribal council. The
Choctaw tribal code provides for a valid non-ceremonial custom marriage where two
parties domiciled in Choctaw Indian country, who are at least 21 years of age, engage,
for a period of not less than two years, in a mutually manifested course of conduct
and representations expressive of their intention to be regarded within the Indian
community as husband and wife. §9-1-7(c) of the Choctaw Domestic Relations Code.
The Choctaw code does not, however, provide for a tribal custom divorce. Thus, with
the effective date of the code, September 1, 1981, tribal custom divorces are no longer
valid. Prior to the effective date of the code, the Choctaws, pursuant to 25 C.F.R.
§11.28, recognized an Indian custom divorce where the two parties mutually manifested
an intent and course of conduct to be no longer married. Subsequent to the effective
date of the Choctaw code (September 1, 1981), however, divorce actions must follow
the Mississippi Civil Procedure.
In summary, it is our opinion that the State of Mississippi would recognize as valid
a common-law-type marriage which is valid according to the custom and law of the Choctaw
Indian tribe. Authority for this position that Indians are entitled to marry according
to tribal custom and that these marriages will be recognized as valid in State and
Federal courts even though the marriage does not conform to the statutory requirements
of the State in which the tribe is located dates back at least as far as several 1916
Supreme Court cases. For purposes of updating the Program Operations Manual System
(POMS), we have discussed the requirements for a valid marriage according to Choctaw
tribal custom which have been codified. As noted above, the Choctaw Domestic Relations
Code effective September 1, 1981, provides for a valid common-law-type marriage according
to tribal custom consisting of:
"Engaging in a mutually manifested course of conduct over a period of not less than
two (2) years by two parties domiciled in the Choctaw Indian country who are at least
21 years of age; their conduct and representations expressive of their intention to
be regarded within the Indian community as husband and wife."
With the effective date of the Choctaw Domestic Relations Code (September 1, 1981),
annulment and divorce proceedings must be in accordance with the law of the State
of Mississippi.