- Views & Opinions
Cherokee National Attorney General Tom Hembree declared unconstitutional the tribal ban on marriage between “parties of the same gender.”
The decision carries the force of law and legalizes same-sex marriage in the Oklahoma-based Cherokee Nation, the second largest tribe in the United States, with about 300,000 members.
Hembree issued his opinion in December in response to a legal question from Cherokee National Tax Commission Director Sharon Swepston. She asked whether the commission should recognize same-sex marriages from other jurisdictions in connection with registering a vehicle.
But Sweptson’s inquiry was much more than a simple question about issuing a license and registration, and the magnitude of the question was not lost on Hembree’s office.
Hembree ruled the Cherokee Nation’s constitution protects the fundamental right to marry, establish a family, raise children and enjoy the full protection of the nation’s marital laws — and the nation may not refuse to recognize a marriage based on the sex of the people in the union.
Therefore, Hembree said, the nation’s Marriage and Family Act, which defined marriage as the union of a man and a woman, is unconstitutional.
The law, he added, is null and void until a differing opinion or order is issued by a Cherokee Nation Court.
In drafting the 12-page opinion, Hembree referred to tribal tradition, values and history. He noted that Cherokees never had a prohibition against marrying a partner of the same sex until passage of the Marriage and Family Act of 2004. That act was adopted during a wave of anti-gay legislation advanced in the United States, part of a well-funded campaign by the Christian right.
The attorney general also observed that oral history reveals Cherokee and Euro-American worldviews differed dramatically regarding gender roles, marriage, sexuality and spiritual beliefs.
“Evidence suggests a tradition of homosexuality or alternative sexuality among a minority of Cherokees,” he wrote.
Hembree even referred to historical writings documenting a ceremony held during a Great New Moon Festival in the 1830s that bonded two people of the same sex together for life.
In other words, the anti-gay law was not the Cherokee Nation way.
Eleven of the nation’s 567 federally recognized tribes have passed explicit bans on gay marriage. These laws were not directly affected by the U.S. Supreme Court ruling in 2015 that legalized same-sex marriage nationwide.
The marriage law of the Oneida Tribe of Indians of Wisconsin was revised in May 2015 to say “spouses” instead of “husband and wife” to recognize same-sex marriage.
The Tribal Code of the Wisconsin-based Lac du Flambeau Band of Lake Superior Chippewa provides that legal marriages must be in accord with the laws of the state wherein the marriage is consummated or the laws of Wisconsin.