The Supreme Court will hear arguments April 28 and could decide by June whether gay couples can marry in the remaining states where it’s not allowed. But the sovereign status of federally recognized tribes means a ruling wouldn’t directly affect their laws.
Even if a U.S. Supreme Court ruling this spring makes same-sex marriage the law of the land, it would leave pockets of the country where it isn’t likely to be recognized any time soon: the reservations of a handful of sovereign Native American tribes, including the nation’s two largest.
Since 2011, as the number of states recognizing such unions spiked to 37, at least six smaller tribes have revisited and let stand laws that define marriage as being between a man and a woman, according to an Associated Press review of tribal records. In all, tribes with a total membership approaching 1 million won’t recognize marriages between two men or two women.
Several explicitly declare that same-sex marriages are prohibited. And some have even toughened their stance.
In December, just weeks after North Carolina began issuing marriage licenses to same-sex couples, the state’s Eastern Band of Cherokee Indians updated its law to add language preventing gay couples from having marriage ceremonies performed on tribal land. The resolution changing the law, which passed 8-1, says court cases around the country prompted the tribe of about 13,000 enrolled members to review its own laws.
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The Cherokee Nation in Oklahoma and the Navajo Nation, with about 300,000 members each, maintain decade-old laws that don’t recognize same-sex marriage. Neither tribe has shown much sign of shifting.
Alray Nelson, a gay-rights activist who lives with his partner, Brennen Yonnie, on the Navajo reservation, said the tribe’s law denies same-sex couples the right to be included in decisions on a partner’s health care or to share in a homesite lease. Getting a marriage license would only require a short drive to a courthouse off the reservation, but the couple — both enrolled Navajo members — would rather wait until it’s allowed on the reservation.
“We are both planning to build a life here, and we want to raise a family,” he said. “So it’s not an option for us to remove ourselves from our community.”
As with the states, opposition to gay marriage varies among tribes. At least 10 have recognized same-sex marriage, often well before their surrounding states and without having judges force their hands. Many others are neutral.
The Supreme Court will hear arguments April 28 and could decide by June whether gay couples can marry in the remaining states and U.S. territories where it’s not allowed. But while 27 states that allow gay marriage got dragged over the threshold by judges, the sovereign status of federally recognized tribes means a Supreme Court ruling wouldn’t directly affect their laws.
Cherokee officials in Oklahoma and North Carolina say nothing in their laws prevents members from getting marriage licenses in adjacent counties. The Oklahoma-based Cherokee Nation, which has a separate government and laws from the Eastern Band, passed its marriage law in 2004.
The Navajo Nation Council voted in 2005 to ban same-sex marriages on the 27,000- square-mile reservation that extends into Arizona, New Mexico and Utah — all states where such marriages are legal. Then-President Joe Shirley Jr. vetoed the measure, but lawmakers overturned it.
There’s been no push recently among tribal lawmakers to change that, said council spokesman Jared Touchin.
The Osage Nation, bordering Tulsa, passed a wide-ranging marriage law in 2012 that doesn’t recognize same-sex unions.
John Hawk Co-Cke’ (co-KAY), an enrolled member of the Osage Nation who’s gay, said that before reservations were created, many tribes had no problem with men who embraced their feminine side and women who lean toward their masculine side, inspiring the term two-spirit people. Two-spirit people were sometimes given special ceremonial roles because of their ability to go into both the masculine and feminine world, he said.
The spread of Christianity starting when tribes were moved onto reservations contributed to a change in attitude that’s reflected in laws that reserve marriage for heterosexual couples, Co-Cke’ said. The influence of Christianity remains strong in many tribes more than a century after an era of mass conversions on reservations.
“It saddens me, but I don’t blame them because they have been forced to give in,” said Co-Cke’, who was raised as a Methodist and has for many years led two-spirit retreats in Oklahoma.
Co-Cke’ said he respects the faith he was raised in, but learning about Native American traditions that date back further helped him become comfortable with being gay.
“I started feeling that emptiness. That’s when the old ones started calling me,” he said. “I had to get healthy.”
The Eastern Band of Cherokee Indians’ Tribal Council voted to strengthen a law on the books since at least 2000 with language that says: “The licensing and solemnizing of same-sex marriages are not allowed within this jurisdiction.”
The tribe’s acting attorney general, Hannah Smith, said the resolution’s only practical effect is to make it explicit that a same-sex-marriage ceremony can’t legally be officiated on tribal land. A gay or lesbian couple married in a neighboring county could live on tribal land with no penalty.
At least 10 tribes — including the Cheyenne and Arapaho Tribes in Oklahoma, the Coquille Indian Tribe in Oregon and the Little Traverse Bay Bands of Odawa Indians in Michigan — have enacted laws since 2009 to recognize gay marriage, according to the New York-based advocacy group Freedom to Marry. The group’s president, Evan Wolfson, said tribal laws banning gay marriage send the wrong message even if a tribe member can get a license from a nearby county.
“It’s not just about a venue. It’s about hanging a sign saying: ‘You’re not welcome here. You’re lesser than.’ And what community would want to do that to its own?” Wolfson said.
Navajos are set to elect a new president April 21, a week before the Supreme Court hearing. Shirley, the former president who supports same-sex marriage, faces former lawmaker Russell Begaye, who said he would let Navajos decide the matter with a reservation-wide vote. Neither man could change the law without lawmakers on board, given the rarity of voter-led ballot initiatives on the reservation where about 185,000 tribe members live.
“It’s a different battle,” said Nelson, the activist. “It’s a different landscape.”