I completed my research into the question of the recognition by American courts of polygamous marriages that were valid where made. As always, I found as much material on related issues as directly on point. I found three cases that deal directly with the recognition of polygamous marriages. Like most of the other cases, these deal with Native Americans. These three cases are all from Oklahoma. They are Oklahoma Land Co. v. Thomas, 34 Okla. 681 (1912); Henson v. Johnson, 117 Okla. 87 (1926); and Owens v. Carpenter, 123 Okla. 133 (1926).
These cases are similar in that they all argue that polygamy was not a recognized law or custom of the Indian tribes involved and therefore polygamous marriages would not be recognized as valid. Oklahoma Land Co. is about Creek Indians. An act of the Creek Council of 1881 forbade plural marriage. Henson is about Cherokee Indians. An act of the Cherokee Nation Council in 1825 forbade plural marriage. Owens is about Chickasaw and Choctaw Indians. An act of the Choctaw Council in 1849 forbade plural marriage.
The book Indians in American History, edited by Frederick Hoxie and Peter Iverson, discusses the development of these tribal councils and the historical context into which they fit:
The fear of being classified as black may have been a factor that led to the cultural transformation of many southern Indians in the early nineteenth century. This transformation, most pronounced among the Cherokees, Chickasaws, Choctaws, and Creeks, took place under the U.S. government's program of "civilization." Proclaiming that the Indian was doomed unless he abandoned his "savage" ways, government agents and missionaries descended on these nations to promote among them commercial agriculture, republican government, English education, and Christianity.
Indians in American History, supra at 124.
The councils were also the means by which the Indian tribes were persuaded to give up their lands. That is, in order to give the appearance of legality to the taking of Indian lands, the government helped set up formal governmental structures amongst the Indian tribes, which could then sign over the lands.
I think that this historical background should be kept in mind when looking at the actions of the tribal councils. The laws they passed did not necessarily reflect the actual laws and customs of the Indian tribes but were meant to "civilize" them by establishing European and Christian customs amongst them. Then when people who had been following the actual customs of the Indian tribes, as in the three cases cited here, attempted to bring evidence that their marriages were valid under tribal law, the acts of the councils could be used to throw out their testimony. Quite frankly, I think this series of cases says more about the shameful nature of America's treatment of Native Americans than it does about the issue of polygamy. The fact that the Indian nations involved here used to live in the Southeast but were living in Oklahoma at the time these cases were brought is also a reminder of the shameful past.
One of the cases I mentioned previously was Royal v. Cudahy Packing Company, 195 Iowa 759 (1923). Royal did not involve a polygamous marriage but instead the defendant claimed that because Turkish law allows polygamy, Turkish marriages should not be considered valid. The Iowa Supreme Court rejected this reasoning. A somewhat similar argument is made in In re Sood, 208 Misc. 819 (1955) but for a different reason. Here Sood had a living wife in India when he attempted to marry another wife in New York. In order to get around being accused of bigamy, he claimed that the Indian marriage was not valid because Indian law allowed polygamy. This argument was rejected by the court because the Indian marriage itself was not polygamous when made.
The final set of cases that I found are from North Carolina and none of them deal with polygamy at all but rather with the general question of comity. I'm including them because I found them interesting. State v. Ross, 76 N.C. 242 (1877) deals with an interracial marriage. This marriage was unlawful in North Carolina but was lawful in South Carolina, where it was made. The defendants had been charged with fornication in North Carolina on the grounds that their marriage was not valid but the Supreme Court of North Carolina overturned their conviction and upheld the validity of the marriage. I was surprised that South Carolina allowed interracial marriages in 1877 and that a North Carolina court would accept them.
The other two cases deal with a separate issue: how should the courts deal with marriages made by slaves, which were usually made according to custom since slaves generally did not have the capacity to make legal marriages, or were unable for other reasons to do so. The cases are Branch v. Walker, 102 N.C. 34 (1889), and Croom v. Whitehead, 174 N.C. 305 (1917). Both cases refer to laws passed after Emancipation, which provided for the recognition of customary marriages among slaves by registration with the state, and whether the marriages at issue in the cases met the requirements for recognition.
The research I have done is by no means comprehensive; however, I did try to review cases from each state that mention or involve polygamy.
I've listed nine cases that deal directly with the question of validity of a polygamous marriage. Six of these deal with Native Americans and the other three with Nigerians, Sikhs, and Chinese. Although Muslims are probably the primary group today who have to be concerned with this issue (which is why I'm posting about it), the precedents were set by people from other cultures. This reminds me a bit of the Sultana Freeman case. There, the precendents in favor of non-photo driver's licenses were set by various Christian groups such as Pentecostals and Amish, a fact ignored by those who went ballistic over a Muslim's religious practice. I can see the same thing happening if there is ever a high-profile case involving Muslims who want the state to recognize their polygamous marriage. Will people pay attention to the precendents set by Native Americans, Sikhs, Chinese, and Nigerians? Or will they go ballistic again at those "foreign Muslim customs"?
American courts may only recently have begun to deal with cases involving Muslims, but they have been dealing with foreign laws and customs for a very long time and we would all do well to keep this in mind. A final area of interest is the other types of marriages that have been considered invalid at one time or another, particularly interracial marriages. Our ideas of what is acceptable in marriage have changed over time, and no doubt will continue to do so.