Top court scraps tribe’s attempt to block gay marriage

By Donna Hales
Phoenix Sun Staff Writer

The Cherokee Nation’s highest court dismissed a suit filed by nine tribal councilors seeking to invalidate the marriage certificate of a lesbian couple married in May 2004.

The Judicial Appeals Tribunal ruled Dec. 22 the councilors had no standing because they failed to show they were individually harmed by the Cherokee marriage. The order was mailed to parties after the holidays.

The Cherokee couple, Kathy Reynolds and Dawn McKinley, are represented by the National Center for Lesbian Rights (NCLR). After marrying, the couple were not allowed to register their certificate with the court after a moratorium was placed on any registrations for a time.

The councilors’ case claimed permitting the marriage to stand would injure the “reputation” of the Cherokee Nation.

It was the second time the court rejected a challenge to the lesbian union. Todd Hembree, a Cherokee who also is the council’s attorney, filed a similar case on June 16, 2004. The court eventually ruled Hembree lacked standing.

When Lisa Field, administrator of the Cherokee Nation District Court, was asked Wednesday if the court would now register the marriage certificate of McKinley and Reynolds, she said she couldn’t answer that.

When pressed, she said if they arrived to register the certificate a “staff decision” would have to be made. She said the matter had been discussed but refused additional comment.

In a Wednesday phone interview with the NCLR staff attorney for the couple, Lean Ayoub of San Francisco, said she was not advising the couple to try to register the license at this time.

Ayoub said she’s exploring legal options but also said any moratorium on filing the certificate ended with the court’s December decision.

“We are relieved by the court’s ruling,” Reynolds said. “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.”

Professor Brian Gilley, PhD, who is of Cherokee ancestry and an assistant professor of anthropology at the University of Vermont, said in a brief filed with the court that “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.”