Dawn McKinley and Kathy Reynolds of Tulsa, Oklahoma are members of the Cherokee Nation whose marriage was recognized by The Judicial Appeals Tribunal of the Cherokee Nation in early January of 2006. The success of their appeal was based on an understanding of Cherokee culture as well as law, resulting in the blending of Cherokee sensibilities with LGBTQ marriage activism.
Marriage Process Under Cherokee Law
Reynolds and McKinley had been living together for years and raising a child together. When Reynolds was barred from McKinley’s hospital room because she was not immediate family (they were only legally recognized as roommates), the couple decided to push for public recognition of their union as a legitimate marriage. In May 2004, Reynolds and McKinley obtained a tribal marriage application and got married in a Cherokee ceremony by a minister certified by the Cherokee Nation.
A petition was presented before the Cherokee Nation Tribal Council, requesting the tribal court to nullify the union as a legal marriage, and the Tribal Council voted unanimously to define marriage as one man and one woman. McKinley and Reynolds were unable to file their marriage certificate, the last prerequisite for their union to be recognized by the Cherokee Nation.
Challenge in Tribal Court
Although the one man-one woman definition of marriage had been put into law, it could not be applied retroactively, and the case for McKinley and Reynolds could only be argued on its own — it could not theoretically be precedent for a change in Cherokee marriage law. In order to have their application accepted, the couple had to show that their marriage did not harm the community.
No lawyers licensed to argue in tribal court would help them, so they received legal counsel through the National Center for Lesbian Rights in San Francisco. A lawyer for the Cherokee Tribal Council filed to nullify the marriage on the basis of his standing as an individual Cherokee citizen. He claimed that all Cherokee citizens would suffer because their nation would be “the only tribe in the United States to recognize same-sex marriage in violation of our own statute,” and that recognition of same-sex marriage was against Oklahoma law as well.
Traditional Cherokee Values of Indifference
McKinley and Reynolds succeeded in winning their case because of a strong premium placed on respect for personal freedom, and disdain for outside interference, in traditional Cherokee society. “Since the tribe has become so Westernized and adopted Christian religions and European ways, they strayed away from traditional Cherokee values of indifference,” said Reynolds. Same-sex relationships were also thought to be part of pre-Christian Cherokee society, she added.
A review of Native American traditions (and Cherokee traditions in particular) played a role in the court proceedings. Many Native American societies have social roles for Two Spirit people (a pan-tribal term for those with gender- and orientation-variant configurations of identity). Cherokee Indian traditions as independent of Christian principles, and the sovereignty of the Cherokee Nation regardless of Oklahoma or US law were considered by the court. The Judicial Appeals Tribunal of the Cherokee Nation agreed with McKinley and Reynolds, and ruled that the marriage was not harmful to the reputation of the Cherokee people. Three separate challenges to the ruling occurred, the final one in January 2006, and all three failed.
Coquille Nation and Same-Sex Marriage
Same-sex marriages recognized by Native American law is not limited to the Cherokee in the case of Reynolds and McKinley. In 2008, the Coquille Nation of Native Americans in southern coastal Oregon recognized same-sex marriage. In response as to why, Ken Tanner, Chief of the Coquelle Nation, said, “For our tribe, we want people to walk in the shoes of other people and learn to respect differences.” Although the state of Oregon did not recognize same-sex marriage at that time, the Coquille people were a sovereign nation within the USA and thus challenged state and national laws restricting marriage to one man and one woman.
Native American Nations That Recognize Same-Sex Marriage:
Cheyenne and Arapaho Tribes
Confederated Tribes of the Colville Reservation
Leech Lake Band of Ojibwe
Little Traverse Bay Bands of Odawa Indians
Pokagon Band of Potawatomi Indians
Santa Ysabel Tribe
Duthu, Bruce. American Indians and the Law. New York: Viking, 2008.
Strasser, Mark P, and Traci C West, Martin Dupuis, William A Thompson. Defending Same-Sex Marriage. Westport, CN: Praeger, 2007.