More than a decade after declaring that marriage is limited to one man and one woman, the Cherokee Nation last week reversed its decision, effectively paving the way for same-sex unions within the tribal community.
Attorney general for the Cherokee Nation, Todd Hembree, issued an opinion on Friday essentially aligning tribal laws with the United States’, the Tulsa World News reported. As a sovereign entity, the Cherokee Nation is not legally bound by U.S. Supreme Court rulings.
“The magnitude of the question presented is not lost on this office” AG Hembree wrote in his 12-page opinion. He went on to explain that while the issue of same-sex marriage is divisive, his only concern “is whether the same-sex marriage ban under Cherokee law can constitutionally operate to deny benefits to Cherokee citizens based upon the same.”
Hembree’s opinion cited a long history of same-sex relationships within Cherokee society over the centuries. At one point, he described a ceremony witnessed by author John Howard Payne in the 1830s which “in some respects would seem to parallel a modern-day same sex marriage in the depth of its commitment, its permanence, and its recognition by the other members of the tribe.”
Ultimately, Hembree concluded, “the Cherokee Nation Constitution protects the fundamental right to marry, establish a family, raise children, and enjoy the full protection of the Nation’s marital laws”—regardless of sexual orientation.
The ruling comes as a direct rebuttal to a 2004 law passed by the Cherokee Nation that solely recognized heterosexual marriages, after two women—Dawn McKinley and Kathy Reynolds—were issued a marriage license, only to have it invalidated by the tribe’s then-attorney general.
“A lot of time has passed since then,” Chrissi Nimmo, assistant attorney general for the Cherokee Nation, told the Tulsa World News. “And a lot of social changes have happened.”
According to its website, the Oklahoma-based Cherokee Nation is the United States’ largest tribal nation, with nearly 320,000 citizens. This new ruling by AG Hembree carries the weight of official law, the News reported, but can be subsequently challenged in court.
Nevertheless, many in the Cherokee Nation are celebrating this latest step toward LGBTQ equality.
“I was really excited and really proud to be a Cherokee,” member Brittany Nunley told CNN. “Like my nation is doing something for all its people.”
Even Chad Smith, who served as the Cherokee Nation’s principal chief in 2004, and signed the previous same-sex marriage ban into law, supported AG Hembree’s decision.
“[The 2004 ban] was adhering to past Cherokee law,” he told the News. “But our constitution incorporates the provisions of the U.S. Constitution, and the [U.S.] Supreme Court has since made its ruling.”