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
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