OK, I lied when I said that I had "completed" my research into recognition of polygamous marriages. In reality, research is never "completed", at least not for me. But in this case, I was too busy this last week to come up with a new topic for research so I gave my research time to continuing to look at case law on the recognition of polygamous marriages. I also did a little research into polygamy and immigration law.
Hallowell v. Commons, 210 F. 793 (8th Cir. 1914), is the first federal case I've looked at (reading over my old entries, I discovered that I had mentioned it before in passing but not discussed it). This is not suprising, since marriage law as well as inheritance law (the most common situation where the validity of a polygamous marriage is questioned) are almost always matters of state law. Hallowell deals with the inheritance of a piece of property allotted to a Native American under federal law by the daughter of a polygamous marriage. The Eighth Circuit strongly upheld the validity of the marriage under the laws of the Omaha Indians and therefore the validity of the inheritance.
Hallowell led me to Jones v. Meehan, 175 U.S. 1 (1899), which also deals with allotments. About Jones, the Eighth Circuit Court of Appeals noted:
The question was thus directly presented as to whether the children and grandchildren by the second wife were entitled to inherit. If the Supreme Court had thought the mere fact of their descent from the second wife defeated their claims, it could easily have said so. It apparently recognized their claims as heirs, but decided the case upon other grounds.
Hallowell, supra at 799.
The next case, chronologically, that I looked at was Pompey v. King, 101 Okla. 253 (1923). I overlooked this in my earlier study of Oklahoma cases because of one of the major flaws of computer-based searching: Pompey doesn't use the word "polygamous" in the text, instead using the phrase "plural marriage". Pompey deals with the customs and laws of the Seminole Indians. Like apparently most other Native American tribes, the Seminoles recognized polygamous (or, plural) marriage. Unlike the tribes mentioned in the other Oklahoma cases, the Seminoles had not made any laws against polygamy and thus if polygamy proved to be permissible under Seminole customary law, the courts would uphold it.
I also looked at Ng Suey Hi v. Weedin, 21 F. 2d 801 (9th Cir. 1927). This one is a federal case because it deals with an immigration question. The plaintiff was the daughter of a U.S. citizen by a polygamous marriage he made in China. The Ninth Circuit Court of Appeals did not recognize her claim to citizenship on this basis, saying that there was no evidence that Congress had intended to allow children of polygamous marriages to become citizens.
This is a good lead-in to my immigration discussion. I'm researching immigration law as part of my paralegal internship and noticed that "practicing polygamists" are excludable; that is, they may be forbidden from entering the U.S. and not granted a visa. A practicing polygamist is currently defined as a person who "is coming to the U.S. to practice polygamy".
It appears that at one time the definition extended to anybody who had practiced polygamy in the past or who believed in the validity of polygamy as a form of marriage, but it is now limited to people who practice it in the U.S.
Following up on this, I found myself in some confusion. A document that is otherwise about how immigration law deals with homosexuals said that the polygamy restriction had been removed in 1990. The source on this was Yepes-Prado v. INS, 10 F. 3d 1363 (9th Cir. 1992). The Ninth Circuit Court of Appeals apparently did believe that the polygamy restriction had been removed:
We are particularly reluctant to find implied authority to inquire into and "punish" private consensual sexual conduct in light of the fact that Congress has removed from Title 8 the three provisions that had previously penalized certain forms of that activity. In 1981 Congress repealed the statutory subsection that provided that adultery disqualified an applicant from being found to possess good moral character. More significant, Congress has eliminated the statutory ground for exclusion based on "sexual deviancy". The legislative history of the Act described the eliminated ground as "being out of step with current notions of privacy and personal dignity." The Immigration Reform Act also removed polygamy as a ground of exclusion. As a whole, these changes evidence Congress's intent that private sexual conduct among consenting adults should no longer be considered a legitimate basis for making immigration decisions.
Yepes-Prado, supra at 1369 (citations omitted, emphasis added).
I looked up section 601 of the Immigration Reform Act and the text is indeed the same as the current classes of excludable aliens cited above.
Was the Ninth Circuit mistaken? Confused?
In any case, Yepes-Prado is not about homosexuality or polygamy but rather about having children out of wedlock. Yepes-Prado, a permanent resident, was going to be deported because of an old drug offense and sought a waiver. However, the immigration judge denied it on the grounds that his non-marital relationship showed a lack of good moral character.
Good moral character is also a requirement for naturalization and permanent residents who are currently practicing or who have practiced polygamy in the last five years cannot be found to have good moral character.