The Constitutional Court of the Choctaw Nation made a groundbreaking decision for same-sex married couples within the tribe.
The high court found that Choctaw members do have a constitutional right to marry, regardless
of the sex.
The Barkers are now set for finalization of their adoption on Friday.
NORMAN, Okla. (KFOR) — A couple from Norman is tangled up in a bizarre case of discrimination in one of Oklahoma’s Tribal Courts and a new breakthrough court decision has changed the couple’s lives.
This is an adoption case involving a 10-year-old girl, her adoptive family and a Tribal code that is at odds with the U.S. Constitution.
Kennedy and Chelcie Barker married in 2021.
A few days after they returned from their honeymoon, they were approved as a foster home for the Choctaw Nation.
“We are both Choctaw. So, we wanted to keep it within our roots,” Chelcie said. “We were not expecting to adopt. We were just here to foster and help her through her journey.”
The Barkers opened their home to an 8-year-old girl from Colorado.
We’re protecting the identity of this young Choctaw citizen.
More than 500 days she’s been in their loving care.
“She’s very girly. She loves glitter, rainbows, unicorns, everything that you imagine little girls are into,” Kennedy said. “That’s her. She’s very happy.”
Earlier this year, the biological father relinquished his parental rights.
The Barkers were approved for adoption through Choctaw Nation Indian Child Welfare Department.
After a few months of paperwork, the Barkers had a “gotcha day” on the calendar: March 9th.
“Our entire our entire family and all of our friends came,” Kennedy remembers. “We get into the courtroom. We’re excited. This is one of the best days of our lives, and she’s excited. We’re all very excited. And so, we get in there and the judge says he has to take a phone call and steps out. Then he comes back in and tells us there is a legal issue.”
The Barkers and their extended family were very concerned and confused.
The legal issue in this non-contested adoption, was a complete shock to the family lawyer.
“She steps off the bench,” said family law attorney, Linque Gilett, “I’m thinking, ‘This is odd. This hasn’t happened before.'”
The Choctaw Nation Tribal Judge told the court the Tribal code within the Choctaw Nation explicitly says The Nation does not recognize same sex marriage.
“It was heartbreaking,” said Chelcie. “We we don’t have the same rights. We’re not getting equal rights as everybody else in the Choctaw Nation. Getting all the way to adoption day to have that be denied was heartbreaking.”
“It almost made me ashamed for how our tribe is, and how behind all the laws are,” said Kennedy.
The judge denied their adoption petition, even though the Barkers were approved by Indian Child Welfare, even though their marriage is recognized in the State of Oklahoma and protected by the U.S. Constitution.
“We’re good enough to foster, but we’re not good enough to adopt?” Kennedy questioned. “So we’re going enough for a short time, but not forever. That makes me feel used.”
Chelcie echoed that sentiment. “We’re good enough to help out, but when we’re ready to step up and help her for the rest of her life, nope! We’re not good enough.”
It’s particularly confusing because the ruling is also contradictory to the Choctaw Nation’s own Tribal constitution, which specifically states Choctaw citizens shall not be denied any state or federal rights.
“Their own tribe is discriminating against them based on their marriage,” said tribal family law expert, attorney Rob Hopkins. “So we’re simply asking them to follow their own constitution that says you can’t violate constitutional rights under the 14th Amendment. That’s exactly what they’re doing here.”
On adoption day, the family attorney asked the court to approve a single parent adoption, since the nation does not recognize their same sex marriage.
One mom was able to adopt.
“This was spur of the moment. These two people are expecting to have this beautiful day together to celebrate and both be moms, and they have to choose on the spot,” said Gilett. “These are tribal members. This child is a tribal member. For the tribe to do this to their own members and not validate that relationship and give this little girl to her parents, we need help. We need a change. We need tribal members to stand up and say, this isn’t right. We need our members to be treated better by our tribe.”
Additionally, the family filed a second-parent adoption so both moms could be adoptive parents to their little girl.
The tribal judge denied the motion.
“We just want to help getting this right,” said Chelcie. “I don’t want another family to have to go through this.”
Choctaw Nation of Oklahoma Chief Gary Batton issued the following statement regarding a case in the Nation’s court system.
“I am grateful to all foster parents who offer their homes to children in need. Protecting children is our highest calling as a tribe and as people. Although we are legally prohibited from commenting on the specifics of cases involving children, we can say the Choctaw Nation of Oklahoma is a sovereign nation governed by the Choctaw Constitution and Choctaw Codes. Like the federal Constitution, the Choctaw Constitution protects the civil rights for our tribal members.
Sometimes, changes in federal law may create a conflict with a Choctaw Code that was constitutional when the code was enacted. Such conflicts may be challenged and are resolved through the legal process of the Choctaw judiciary, similar to how Oklahoma laws are reviewed in District Courts. All cases before our Constitutional Court, including the one in question, are handled quickly and fairly, and we remain confident our lower courts will apply the rulings as instructed to them by the constitutional court.”Choctaw Nation of Oklahoma Chief Gary Batton
NEW: One week after that ruling the Constitutional Court ruled in favor of the couple, stating Choctaw members do have a right to marry, regardless of their sex.
Choctaw Nation sent this statement after the new court ruling in favor of the couple:
“Matters of family law can be extremely sensitive and complex, especially when determining what is best for a child,” he said. “The Constitutional Court clearly weighed many factors, including our Choctaw Codes and Constitution, and I thank everyone involved for their diligent service to our people and our Nation.”
“Based on this decision, we will review our Codes to see what changes need to be made,” he said. “We offer our love and support to the family involved in this case.”
Choctaw Nation of Oklahoma Chief Gary Batton
The Choctaw Nation is the third-largest Indian Nation in the United States with more than 220,000 tribal members and 12,000-plus associates.