The marriage of a
lesbian Cherokee couple cannot be invalidated by a
tribal council, the judicial appeals tribunal of the
Cherokee Nation has ruled. In a decision issued on
December 22 and made public on Wednesday, the highest
Cherokee court rejected an attempt by several tribal council
members to invalidate the marriage of Cherokee citizens
Kathy Reynolds and Dawn McKinley.
The court held
that the council members, who make up the legislative
branch of the Cherokee Nation, had no standing to seek a
court order invalidating the couple's marriage
because they could not show that they were
individually harmed or affected by the marriage in any
way. The court rejected the council
members' argument that permitting the marriage
to stand would injure "the reputation" of the
Cherokee Nation.
"We are
relieved by the court's ruling," said
Reynolds. "Dawn and I are private people, and
we simply wish to live our lives in peace and quiet,
just as other married couples are permitted to do. We are
grateful to the court for applying the law fairly and
for protecting our privacy and our rights as equal
citizens of the Cherokee Nation."
According to the
National Center for Lesbian Rights, which represented
Reynolds and McKinley, this is the second time the high
court has rejected a challenge to the couple's
marriage. In May 2004, Reynolds and McKinley
applied for and were issued a marriage certificate, and the
couple wed shortly thereafter. On June 16, 2004, a member of
the Cherokee tribe, Todd Hembree, filed a petition
seeking to have the couple's marriage
invalidated. On August 3, 2005, the Cherokee court found
that Hembree lacked standing to bring suit challenging
the validity of the marriage because he had failed to
show that he would suffer individualized harm.
Two days later
nine members of the Cherokee Nation Tribal Council filed a
petition for declaratory judgment against the couple. The
nine members of the council, represented by Hembree,
claimed to be filing the petition in their official
capacity. The petition asked the court to declare that
marriages between same-sex couples are not allowed under the
Cherokee Nation Code marriage statute. Six members of
the council declined to participate in the lawsuit.
"We are
pleased that that court protected the fundamental principles
of the Cherokee legal system, which prevents
government officials from dragging private citizens
into court unless the officials have a direct personal
stake in the lawsuit," said NCLR staff attorney Lena
Ayoub. "The court held that legislators must
demonstrate a specific, individualized harm in order
to challenge the validity of a person's marriage,
regardless of whether the marriage is between a
different-sex or a same-sex couple."
In briefs filed
with the court, the council members argued that marriages
between same-sex couples are inconsistent with Cherokee
Nation culture, heritage, and tradition. But according
to an affidavit submitted to the court by Brian
Gilley, an assistant professor of anthropology at the
University of Vermont who is of Cherokee ancestry,
"There is overwhelming evidence for the
historic and cultural presence of multiple gender roles
and same-sex relations among most if not all Native North
Americans, including the Cherokee, and that they
historically shared in the institution of
marriage." (Advocate.com)