Cherokee Nation has no divorce code for its courts
1/21/2011 7:24:19 AM
By JAMI CUSTER
Reporter

TAHLEQUAH, Okla. – Each year, an average of 18 couples apply for Cherokee Nation marriage licenses and get hitched through the tribe’s courts. This has been happening since 1993 when the tribe instituted its marriage code. However, no couples have ever gotten divorced through the tribe’s legal system because the tribe has no divorce code. 

CN Courthouse officials said if someone were to file for divorce through the courts, the motion would more than likely not be granted because the courts have no code for granting divorces.

“I’m not sure the fact is that Cherokee Nation doesn’t recognize divorces. It’s just that we do not have a code to work with concerning divorces,” CN Court Administrator Lisa Fields said. 

Fields added that if the tribe wanted to add a divorce code, the Tribal Council would have to pass legislation for one.

Council Speaker Meredith Frailey said the council historically has not drafted legislation covering divorces because it would add constraints to marriage applicants such as consenting to the District Court’s jurisdiction.

She also said if the tribe added a divorce code, it could be time consuming for the courts.

“Divorces require a specialized docket and are very time-consuming,” she said. “Therefore, there likely would be a need to dramatically increase the size of the courts as our dockets are almost at capacity.”

Frailey said the council has not considered legislation covering divorces, but that does not mean it wouldn’t in the future. However, Attorney General Diane Hammons said if that legislation was written, it probably wouldn’t come from her office. 

“We don’t have a divorce code. The drafters of the code chose not to include that, and we have never seen fit to add one,” Hammons said.

Fields said if a person wanted to file a divorce petition in tribal court, it would be up to the other party to contest the jurisdiction, and the judge would have to determine if the matter could move forward in the court.

Currently, the only way to petition for divorce and have it granted is to file the petition in the county in which the parties reside, Fields said. 

According to CN code, to get married through the tribe’s legal system at least one person getting married must be a CN citizen. Also, the couple needs to complete a marriage application, pay the $5 fee, choose a person from an approved list of clergy to perform the ceremony and reside within the CN jurisdiction. In addition, the approved clergy member must pick up the marriage license from the courthouse, have it signed and then return it for filing.

In 2005, the Tribal Council amended the marriage law prohibiting same-sex unions after a gay couple was issued a tribal marriage certificate. The couple has not attempted to file the marriage license and is waiting for its case to make its way through tribal court.

The Oklahoma government recognizes heterosexual marriages that have gone through the CN, but not recognize same-sex unions.


jami-custer@cherokee.org • (918) 453-5560
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