The Niqabi Paralegal

even more on polygamous marriages and the courts

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.

miscellaneous notes related to recognition of polygamous marriages

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.

more on recognition of polygamous marriages

Again, this refers to the recognition by American courts of foreign polygamous marriages that were valid where they were made. I've found an additional case involving recognition of a foreign polygamous marriage as valid for some purposes. This also involves Native Americans. It is Compo v. Jackson Iron Co., 50 Mich. 578 (1883). Here the daughter of a polygamous marriage was recognized as legitimate and therefore entitled to inherit from her father's estate. The court wrote: It is no doubt true that among civilized nations polygamy is very justly discarded, as a barbarous usage which is inconsistent with true civilization. If the Indian tribes were governed by the laws of the State, and their marriages covered by those laws, the result would follow as claimed. But the Indian tribes at the time now under consideration did not derive their right to occupy the country from the State. they were recognized by the United States as tribes capable of making treaties and of regulating their own internal affairs. In the absence of any determination by the United States by treaty or otherwise on the subject, they have as complete power to determine their own domestic relations as any other organzied community would have, and those who were recognized by Indian usage as married persons must be so regarded by us, and the children of such marriages cannot be deemed illegitimate without violating every principle of justice. Compo, supra at 585. The opinion also discusses some English precedent: A still more decisive class of cases is found in the English courts where until Jews were fully emancipated from their former disabilities they were treated as a community of alien people although living in England. It was uniformly held that Jewish marriages with all their incidents and qualifications were to be governed entirely by Jewish usage, and were valid if so conforming. Id., at 586. The case Ortley v. Ross, 78 Neb. 339 (1907), mentioned previously, also deals with the legitimacy of a child born to a polygamous marriage. As an aside, one thing that struck me while reading the Indian tribal law cases is that the judges felt that Indian marriages were not "civilized" because they allowed easy dissolution. This is mentioned in several of the polygamy cases as one of the unusual characteristics of Indian tribal marriage and there are also some cases I came across that deal expressly with this question and whether the divorces and subsequent remarriages should be recognized as valid. How things have changed! Another thing that struck me while doing my research is that the phrase "polygamous" is usually found in close proximity with "incestuous". Do people really think that polygamy is equivalent to or as bad as incest?? In addition to the Compo case, I found two cases that touch on related issues. The first is Wei See v. Young Sheong, 3 Haw. 489 (1873). This case deals with the estate of a Chinese man who had a wife in China and a native Hawaiian wife. He apparently attempted to devise his property according to Chinese law and custom which considered the Hawaiian wife Kamaka as his concubine, who did not have equal inheritance rights but was entitled to some portion of his estate. The executor of the will filed false documents with the court to conceal the actual amount of money at issue and in so doing denied the Chinese wife and also the mother of the deceased their rightful share. The Supreme Court of Hawaii recognized the Chinese marriage as valid and gave the Chinese widow her share as a widow. It also held that Kamaka had been unaware of the pre-existing Chinese marriage so she received a widow's share as well rather than the smaller amount originally devised to her. The other case, Royal v. Cudahy Packing Company, 195 Iowa 759 (1923), does not actually involve a polygamous marriage. Instead, the defendants attempted to claim that a marriage made in Turkey was invalid because Turkish marriage law allows polygamy. However, the court did not agree with this view. This is similar to the arguments made against recognizing Indian tribal marriages as valid. That is, the argument is that because Indian tribal or Islamic law allows types of marriage not allowed in American law it should not be recognized at all, even if the marriage at issue is of a type allowed by American law. The courts have never taken this position, but instead will recognize marriages as valid as long as they are of a type allowed by American law. As the cases discussed here show, they are even willing to recognize other types of marriages for some purposes. I have not yet complete my research of case law in all the states, which I hope to do next week, inshallah.

recognition of polygamous marriages

It is not lawful in the United States to make a polygamous marriage. But what about a polygamous marriage made in another country that is lawful there? Should U.S. courts recognize it? Eugene Volokh raised this question in the context of whether U.S. courts will recognize gay marriages made in Canada. He mentioned two cases: People v. Ezeonu, 588 N.Y.S.2d 116 (1992), and In re Estate of Bir, 83 Cal. App. 2d 256 (1948). Ezeonu deals with a man who was criminally charged with the statutory rape of a 13 year old girl. One of the defenses to statutory rape is that the defendant was married to the complainant. Ezeonu attempted to raise this defense. The problem was that the complainant was his second wife. The marriage was lawful where made, in Nigeria. The court said that foreign marriages would only be recognized as valid if they were not contrary to public policy in New York and it considered polygamy to be "repugnant to public policy". This particular marriage (i.e., to a 13 year old girl) certainly strikes one as questionable at best (and according to this story the circumstances are indeed repugnant) but the judge seems to have felt that even a polygamous marriage involving all consenting adults was equally repugnant. The other case, Bir, deals with the division of the estate of Dalip Singh Bir, who died intestate and had two wives claiming portions as heirs. After an extensive review of the precedents, the court decided that the polygamous marriages should be recognized as valid for the purposes of succession. As Professor Volokh notes, the two decisions are not contradictory since the California Court of Appeal did not rule that polygamous marriages were valid for purposes of cohabitation, which was the question at issue in Ezeonu. Bir is particularly interesting for the precedents that it cites for its position recognizing polygamous marriages as valid for purposes of succession. I was not able to track down all of the cases cited, since most of them are very old, but I did find two that are directly on point, both dealing with Native Americans. These are Ortley v. Ross, 78 Neb. 339 (1907), and Hallowell v. Commons, 210 F. 793 (8th Cir. 1914). Bir also cited Caballero v. The Executor, 24 La. Ann. 573 (1872), which deals with the validity of a foreign-made interracial marriage. There are a couple of interesting points here. First, none of these cases seem to involve Muslims. Polgamy is common in West Africa among people of all ethnic groups and religions and is even recognized by some Christian churches in Nigeria. Ezeonu's religion isn't mentioned in the ruling; he could be animist or even Christian as well as Muslim. Bir was Sikh. And of course, Native Americans have their own religious traditions. Bir mentions a Canadian case, Yew v. Attorney General for British Columbia, 1 Dominion Law Reports 1166 (1923), which involved a Chinese polygamous marriage. Although Americans tend to associate polygamy exclusively with Islam, it has in fact been practiced in many if not most non-Western cultures. It also appears in the Bible; prophets such as Abraham, Moses, David, and Solomon, among others had multiple wives (see Polygyny in Christianity for links about the support for polygamy among Biblical Christian groups). The other point was brought to my mind by the interracial marriage case. Today, we consider it obvious that interracial marriages should be allowed. We're also moving towards greater recognition for same-sex couples (as Lawrence v. Texas shows). Perhaps in the future, Americans will come to accept polygamy as well on the grounds that consenting adults should be free to choose whatever family structure they want as long as they are not harming anyone.