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!!!!!!!! Search error!  If the URL ends something like .htm/  or .htm# delete the character(s) after .htm and hit return.

SAME-SEX MARRIAGE IN THE CHEROKEE NATION:

Marriage of a lesbian couple,
citizens of the Cherokee Nation

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Sponsored link.

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Background:

In 2004, Kathy Reynolds, 27, and Dawn McKinley, 32, were a loving, committed lesbian couple, who are both citizens of the Cherokee Nation. They remain so today. They were thrust into the same-sex marriage debate by an incident that occurred when Kathy was hospitalized. The hospital did not allow Dawn to visit Kathy, because the institution only recognized the couple as roommates, not as spouses -- even though they had been living together for years and were parenting a child.

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Their marriage:

In order to assure their rights in the future, they applied for and received a marriage application from the clerk of the Cherokee Nation District Court on 2004-MAY-13. "The Cherokee Nation has issued marriage certificates since 1992, and because it it a sovereign nation, those licenses are recognized by Oklahoma and other states." 7 Reynolds said in an interview: "We were told that the Cherokee law didn't exclude same-sex marriages. We just wanted recognition for our relationship." McKinley said: "We were very naive. We thought we'd get married under Cherokee law and that would be the end of it. We never thought it would turn into this." 2

The next day, MAY-14, the Chief Justice of the Court initiated a memorandum preventing any further same-sex couples from obtaining marriage certificates. Further, no marriage certificates could be filed with the Cherokee Nation by same-sex couples who had been married.

On 2004-MAY-18, McKinley and Reynolds were married by a minister who had been certified by the Cherokee Nation to perform marriages. The wedding took place on Cherokee land at a park in Tulsa, OK. Their intent was to have a traditional Cherokee ceremonial wedding after their marriage license was certified. However, when they attempted to register the marriage with the tribal court, it was rejected.

The Tribal Council unanimously passed a measure in 2004-JUN excluding same-sex couples from marrying within their jurisdiction. However, under Cherokee law, the measure is not retroactive and thus did not impact the McKinley - Reynolds marriage. 1

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Petition to nullify the marriage:

bullet2004-JUN-11: Todd Hembree, a member of the Cherokee Nation, filed a letter with the District Court objecting to the issuance of the marriage license. Although he is a lawyer for the Cherokee Tribal Council, he acted solely as a private individual.
bullet2004-JUN-16: Hembree filed a Petition for Declaratory Judgment with the District Court asked that the marriage be nullified. He said: "I took action because I feel strongly that our laws have to stand for something. The Cherokee statute is not gender-neutral.  It is meant to be between a man and a woman.  I my view, they are trying to circumvent Oklahoma law." He also filed a temporary injunction to prevent the couple from registering their marriage.
bullet2004-JUN-18: The District Court granted Hembree a temporary injunction, nullifying the couple's marriage.
bullet2004-JUL-12: Dawn and Kathy, representing themselves, filed a Motion to Quash and a Motion to Dismiss Hembree's Petition for Declaratory Judgment using as grounds that he lacked standing. McKinley said: "There were about 35 lawyers on the list of those permitted to argue in tribal court, and one day I went down the whole list and couldn't find anyone willing to take the case. One guy laughed and hung up on me." Finally, the National Center for Lesbian Rights (NCLR) in San Francisco, CA agreed to represent the couple.
bullet2004-AUG-12: The couple fled a Motion for Summary Judgment, again arguing that Hembree lacked standing.
bullet2004-DEC-10: The District Court rejected the couple's three motions.
bullet2004-DEC-17: The couple appealed to the Judicial Appeals Tribunal, the highest court in the Cherokee Nation.

Mike Miller, a spokesperson for the Cherokee Nation said: "Whatever happens [with the petition] will set no precedent -- it will affect only this one case."

Reynolds said: "One neighbor just stopped talking to us when this became public. I mean, really, who are we hurting here? We don't bother anyone, we mind our own business....[We] stick to ourselves. How would our marriage hurt anyone?" 2

bullet 2005-JUL-08: NCLR filed a motion with the Judicial Appeals Tribunal to dismiss Hembree's petition. They argued that he does not have standing to challenge the validity of the marriage:

"The requirement that a party must have standing to maintain a court action is necessary to protect 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. The standing requirement 'reflects a due regard for the autonomy of those most likely to be affected by a judicial decision.' Diamond v. Charles, 476 U.S. 54, 62 (1986). 'The exercise of judicial power . . . can so profoundly affect the lives, liberty, and property of those to whom it extends, that the decision to seek review must be placed in the hands of those who have a direct stake in the outcome. It is not to be placed in the hands of concerned bystanders, who will use it simply as a vehicle for the vindication of value interests'." 3

Hembree said that as a citizen of the Cherokee Nation, he would be affected because the tribe would not be honoring its own laws. He said that the entire tribe would suffer because it would be "the only tribe in the United States to recognize same-sex marriage in violation of our own statute." 7

bullet 2005-AUG-03: The Cherokee National Judicial Appeals Tribunal dismissed Hembree's petition. They wrote: "The Court FINDS that the Petitioner, Todd Hembree, has failed to show that he will suffer individualized harm and that he, therefore lacks standing to maintain his action." 5

Lena Ayoub, National Center for Lesbian Rights Staff Attorney, said: "This is a tremendous victory for our clients and the Cherokee Nation. By dismissing the case, the Court rejected the idea that a private citizen can attack the validity of a marriage simply because he has strong political beliefs regarding the right of same-sex couples to marry. Permitting same-sex couples to marry does not individually harm or affect other people. 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."

Richard LaFortune, Campaign Director for 2SPR (2 Spirit Press Room), a Native GLBT Media Project 8 in Minneapolis, Minnesota said: "This decision speaks to the primacy of native sovereignty and traditions that demonstrate acceptance and dignity of all human beings and our spiritual traditions."

Dawn and Kathy said: "We are so happy that the Court dismissed the case. Our relationship is precious to us and we're grateful for all the support we've received from throughout the world.6
bullet 2005-AUG-06: The couple's marriage license remains unregistered.

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References:

  1. "Tribal Government Opposes Same-Sex Marriage," CitizenLink, Focus on the Family, 2005-AUG-01.
  2. Louis Romano, "Battle Over Gay Marriage Plays Out in Indian Country," Washington Post, 2005-AUG-01, at: http://www.washingtonpost.com/
  3. Text of "McKinley and Reynolds' motion to dismiss" before the Judicial Appeals Tribunal, 2005-JUL-08, at: http://www.nclrights.org/ **
  4. "Reynolds and McKinley, Cherokee Nation, Victory!," NCLR, undated, at: http://www.nclrights.org/
  5. "Order granting motion to dismiss," Judicial Appeals Tribunal of the Cherokee Naiton [sic]," at: http://www.nclrights.org/  **
  6. "Cherokee Court Rejects Petition to Block Same-Sex Marriage," NCLR, 2005-AUG-03, at: http://www.nclrights.org/
  7. S.E. Ruckman, "Cherokee Nation court hears same-sex marriage arguments," posted on 2005-AUG-03 at: http://64.176.73.100/
  8. The term "GLBT" is a commonly used abbreviation referring to gay, lesbian, bisexual and transsexual persons.

** These are PDF files. You may require software to read them. Software can be obtained free from: 

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Copyright © 2005 by Ontario Consultants on Religious Tolerance
Originally written: 2005-AUG-06
Latest update: 2005-AUG-06
Author: B.A. Robinson

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