Battle Over Gay Marriage Plays Out in Indian Country
Monday, August 1, 2005
TULSA -- Truth be told, Kathy Reynolds and Dawn McKinley were content living in quiet suburban anonymity, raising a child, accepted by neighbors who did not know their sexual orientation, and hoping to grow old together.
A complex legal battle with cultural overtones was not on their agenda. But their dreams bumped against legal reality when Dawn was barred from Kathy's hospital room because she was not family. It was not long after that the lesbian couple brought the national battle over same-sex marriage to the heart of Indian country as they moved to become the first gay couple to marry under Cherokee law.
More than a year after Massachusetts became the first state to recognize same-sex marriages, the emotional issue is playing out in the Cherokee courts in Oklahoma, confronting historic issues of cultural traditions and Indian sovereignty. A hearing Tuesday will likely determine whether Reynolds and McKinley are married under Cherokee law -- and are therefore legally recognized as a married couple in this conservative state.
Tribal sovereignty statutes mandate that Native American marriages be recognized by states, and a couple -- any couple -- could conceivably circumvent state laws to establish a legal union not approved by the state.
The Navajos have also broached the issue; the tribe's council voted to ban same-sex marriage and then voted again to override tribal President Joe Shirley Jr.'s veto of the ban. Shirley had called the issue "a waste of time."
Reynolds, 28, and McKinley, 33, insist that when they first requested and received a marriage application from the Cherokee Nation last year, their intention was not to make history.
"We were told that the Cherokee law didn't exclude same-sex marriages," Reynolds said in an interview. "We just wanted recognition for our relationship."
Added McKinley: "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."
At the urging of a local Cherokee nationalist and gay rights activist, the couple sought and received a marriage application from the tribe last year without incident. They promptly held a wedding ceremony performed by a licensed minister certified by the Cherokee Nation on Cherokee land at a Tulsa park. Family, friends and media attended. The couple planned to have the traditional Cherokee ceremonial wedding after their marriage application was certified.
But when Reynolds and McKinley tried to file their application with the tribe a year ago to make it official, they found that a tribal judge had issued an injunction prohibiting them from becoming the first same-sex couple married under Cherokee law.
Shortly after, Todd Hembree, the lawyer for the Cherokee Tribal Council, asked the tribal court to nullify the marriage, arguing that it was not covered under Cherokee law. The Cherokee Tribal Council then unanimously passed a measure limiting marriage to a union between a man and woman to clarify what it said was ambiguous language in the law.
"I took action because I feel strongly that our laws have to stand for something," said Hembree, who said he was acting on his own and not on behalf of the tribe. "The Cherokee statue is not gender-neutral. It is meant to be between man and a woman. In my view, they are trying to circumvent Oklahoma law."