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Tribal challenge to same-sex marriage dismissed
Thursday, August 4, 2005

A Cherokee Nation couple claimed victory on Wednesday when the tribe's highest court dismissed a lawsuit challenging their same-sex marriage.

Kathy Reynolds, 28, and Dawn McKinley, 33, sparked an outcry last year after they obtained a marriage license from the tribe. Upon learning of the development, the Cherokee Nation Council passed a resolution to define marriage as between a man and a woman.

The resolution applied to future marriages but the legal status of the couple's license remained in doubt because the tribal council's attorney file a lawsuit to block it. Todd Hembree said the Cherokee Nation has never allowed same-sex marriages.

After hearing arguments on Tuesday, however, the Judicial Appeals Tribunal of the Cherokee Nation dismissed the case. In a one-page order, three judges held that Hembree, as a private citizen, lacked the legal standing to challenge the license.

The decision brought praise from Reynolds and McKinley, whose marriage was not borne out of activism or politics. The couple decided to formalize their relationship when Dawn was barred from Kathy's hospital room because she was not considered a family member.

"We are so happy that the court dismissed the case," the couple said in a statement released by the National Center for Lesbian Rights, whose attorneys took on the case after no one else would. "Our relationship is precious to us and we're grateful for all the support we’ve received from throughout the world."

"Permitting same-sex couples to marry does not individually harm or affect other people," added Lena Ayoub, who argued the case before the tribunal. "The court's ruling protects people’s right to conduct their lives in privacy and peace, without being hauled into court by third parties who have no relationship to them and no direct interest in the matter being litigated."

Hembree, in a story for the Associated Press, agreed that the ruling ends the dispute. "That is a decision by the highest court in our land," he was quoted as saying.

Yet the dismissal of the case won't help the couple win rights beyond the Cherokee Nation's 14-county jurisdictional area in northeastern Oklahoma. Under the Defense of Marriage Act of 1996, which was signed into law by former President Bill Clinton, any government -- whether state or tribal -- can refuse to recognize a same-sex union that is considered legal in another jurisdiction.

As of 2004, more than 10 states have banned same-sex marriages. Only one state, Massachusetts, has allowed it although it is still being fought in the political arena. Vermont allows civil unions between members of the same sex.

In Indian Country, the issue is considered fresh legal ground. At a Federal Bar Association conference last fall, attorneys and Native advocates said tribes could exercise their sovereignty to allow or bar same-sex unions or marriages.

"It's clear that, under federal law, tribes have a long history of being able to regulate domestic relations as a matter of their inherent tribal sovereignty," said Wenona Singel, a professor at the University of North Dakota School of Law who became interested in the legal background when her tribe asked her to draft a marriage statute.

The debate stirred controversy on the Navajo Nation, the largest tribe in the United States. As the Cherokee case was making headlines, a Navajo Nation Council delegate introduced a resolution to define marriage as between a man a woman.

The measure was approved this year despite opposition from some delegates who called it discriminatory. Navajo Nation President Joe Shirley Jr. subsequently vetoed the Dine Marriage Act of 2005, said it was an attempt to deny Navajo people their inherent rights.

"The right to be, whatever that is, is a real basic right," Shirley said on Democracy Now!, a liberal-leaning radio show, in May.

The council, however, overrode Shirley's veto. Delegate Larry Anderson, the sponsor of the act, said was wanted to strengthen traditional Navajo values. That view is disputed by some Navajos who say that gay and lesbian people have always been a part of tribal culture. The Navajo language has a term, nadleeh, to describe gay and lesbian people. Other tribal culture have similar concepts and words, according to Native gay and lesbian advocates.

Judicial Appeals Tribunal Decision:
In the matter of Reynolds and McKinley (August 3, 2005)

Relevant Links:
Cherokee Nation - http://www.cherokee.org
National Center for Lesbian Rights - http://www.nclrights.org
Native Out - http://www/nativeout.com
Bay Area American Indian Two-Spirits - http://www.baaits.org
Dine Coalition for Cultural Preservation - http://www.dinecoalition.com