Top US Indian Court upholds first gay marriage

By Adam Tanner
Associated Press

SAN FRANCISCO - The top court of the Cherokee Nation has declined to strike down a gay marriage in what is seen as a pioneering case in American Indian country, the couple and officials said on Wednesday.

Cherokee tribal members Kathy Reynolds, 29, and Dawn McKinley, 34, married in May 2004 in Oklahoma, just weeks after the city of San Francisco ignited a national debate on gay marriage by briefly allowing same-sex couples to wed.

Gay rights advocates say the pair are the first registered same-sex marriage in Indian country.

Because tribal law at the time allowed same-sex marriages, a tribal clerk gave them a wedding certificate. But members in the Tribal Council sued, saying the marriage would damage the reputation of the Cherokees, and the law was later changed.

In a December 22 decision announced on Wednesday, the Judicial Appeals Tribunal of the Cherokee Nation, the tribe‘s highest court in Tahlequah, Oklahoma, rejected the request for an injunction against the marriage.

"Members of the Tribal Council, like private Cherokee citizens, must demonstrate a specific particularized harm," the court ruled. "In the present case, the Council members fail to demonstrate the requisite harm."

Historians say Native American culture before the arrival of European settlers tolerated homosexuality, although the settlers‘ religious teachings ultimately turned the tribes against it.

"Since the tribe has become so Westernized and adopted Christian religions and European ways, they strayed away from traditional Cherokee values of indifference," Reynolds told Reuters. "Cherokees are very private where they respect each other and respect how they live."

Reynolds, a graduate student, said she had lived together with McKinley, who works in the retail industry, for four years before they opted to wed. Both women said their friends and family welcomed their decision although tribal officials disapproved.

"We really thought our tribe would be accepting of us," Reynolds said. "That hasn‘t proven to be the case."

Added McKinley: "Because of their law we were able to get married, but now they want to say that it is not family values or that it is bothering them."

McKinley said the couple did not marry to make a point, but because of love. "It‘s exciting and it‘s scary at the same time," she said of their pioneering status.

The lawyer for the Tribal Council, Todd Hembree, said the tribe would no longer fight the marriage. "As far as the Tribal Council is concerned, that is the end of the legal proceeding," he said in an interview on Wednesday.

He said it was also possible that the U.S. government would have to recognize the marriage because of the sovereign status of Indian tribes, which could, in theory at least, make them eligible for federal tax benefits denied to date to gay couples.

Lena Ayoub, an attorney who represented Reynolds and McKinley, said the federal government has not recognized any same-sex state marriages to date and called the federal obligation to recognize sovereign tribal marriage "a very complicated area of the law."

The largest Indian reservation, the Navajo Nation, also banned gay marriage last year.