Cherokee high court rejects challenge to lesbian marriage

The Judicial Appeals Tribunal of the Cherokee Nation, the highest Cherokee court, upheld the marriage of a lesbian Cherokee couple on Dec. 22 in Tahlequah, Okla.

Dawn McKinley and Kathy Reynolds of Owasso, Okla., were issued a marriage certificate from the Cherokee Nation in Oklahoma in May 2004 and were married shortly afterward. But after they were wed, a temporary moratorium was placed on any marriage registrations and the couple were not allowed to register their certificate.

Todd Hembree, the Tribal Council’s attorney, filed a suit in opposition to the marriage and argued before the court that the Cherokee Nation had no right to recognize the marriage. That suit was defeated last August when the court ruled Hembree had no right to sue on the grounds that he could not show that he had suffered any harm from the couple’s attempt to be recognized as a married couple.

A second challenge to the marriage was filed in August 2005 by a group of elected councilors of the Nation represented by Hembree after the Cherokee Nation Tribal Council approved language that legally defined marriage as a union between a man and a woman. Again the Cherokee high court found that the complainants had no standing to do so because they had not been harmed by McKinley and Reynolds’ attempt to be recognized as a married couple. Under the laws of the Cherokee Nation, only someone who can demonstrate personal harm by a couple’s marriage would have standing.

In that suit Hembree claimed that tribal laws previously used gender-specific language to define marriage, such as “husband” and “wife.” According to the January 2006 Cherokee Phoenix, McKinley and Reynolds contended those terms are not gender-specific and that in Cherokee the words used in a marriage ceremony are “cooker” for wife and “companion” for husband.

Prof. Brian Gilley, who is of Cherokee ancestry and an assistant professor of anthropology at the University of Vermont, said in a brief filed with the court, “There is overwhelming evidence for the historic and cultural presence of multiple gender roles and same-sex relations among most if not all Native North Americans, including the Cherokee, and that they historically shared in the institution of marriage.” (Muskogee Phoenix, Jan. 5)

Reynolds and McKinley were represented by the National Center for Lesbian Rights (NCLR). Staff attorney Lena Ayoub, who represented the couple, stated, “We are pleased that that Court protected the fundamental principles of the Cherokee legal system, which prevents government officials from dragging private citizens into court unless the officials have a direct personal stake in the lawsuit. The Court held that the legislators must demonstrate a specific, individualized harm in order to challenge the validity of a person’s marriage, regardless of whether the marriage is between a different-sex or a same-sex couple.”

Ayoub interprets the Cherokee court’s decision to mean that the moratorium on marriage filings ended with the December ruling. She has also stated that the ruling may be used as a precedent for any future same-sex Cherokee couples seeking the right to marry.

Indigenous First Nations that are recognized by the United States government have the legal status of “domestic dependent sovereigns,” which means that they are only under federal jurisdiction and are not subject to state and local laws.