Showing posts with label Indians/Reservations. Show all posts
Showing posts with label Indians/Reservations. Show all posts

January 3, 2017

The Cherokee Nation decided to recognize Same Sex Marriage







THE CHEROKEE NATION, one of the largest registered Native American tribes in the United States, has officially decided to recognize same-sex marriage. The tribe, as a separate sovereign, isn’t bound by the U.S. Supreme Court’s landmark 2015 gay-marriage decision, Obergefell v. Hodges. But its judgment relies in part on evidence of historical recognition of same-sex relationships among Cherokees — a basis for contemporary gay rights that is different from, and in some ways deeper than, the equality and dignity rationales that the Supreme Court used.

The history of how tribes have been treated in their interaction with the U.S. legal system is complex and often inconsistent — usually to the detriment of the tribes. But the basic principle of “Indian law” is that tribes are considered sovereign nations: dependent on the United States and subject to congressional control in some respects, but entitled to exercise self-government.

Thus, tribes need not govern themselves democratically — nor are they necessarily bound by the U.S. Constitution. Instead, basic rights in Indian country come from either the tribes’ own fundamental constitutional principles or the Indian Civil Rights Act, enacted by Congress in 1968.

The act includes guarantees of equal protection and due process of law, the same principles that are found in the 14th Amendment to the U.S. Constitution and that were the basis for the Obergefell decision. But when the Supreme Court updates its interpretation of the Constitution, as it did in the gay marriage case, that doesn’t automatically change the meaning of Indian Civil Rights Act. So the act hasn’t been held to mandate gay marriage in Indian country.

As a result, when Todd Hembree, the attorney general of the Cherokee Nation, issued his binding gay marriage opinion last month, the Indian Civil Rights Act went unmentioned. The decision was based on the Constitution of the Cherokee Nation, which he described as “the supreme written will of the Cherokee people regarding the framework of their government.” Hembree mentioned Obergefell only to cite it in a footnote.

What’s perhaps most remarkable about the attorney general’s opinion is how it grounded its argument in Cherokee tradition. In a section titled “Perpetual Partnership and Marriage in the Cherokee Nation,” Hembree devoted significant attention to a ceremony of devotion that was traditionally performed between two men at an annual festival.


Hembree quoted in its entirety an eyewitness description from 1836 by John Howard Payne, a picaresque writer, composer and traveler. In Payne’s account, the ritual “sprang from a passionate friendship between young men” that led them “mutually to a solemn act of devotedness to each other.” The young men would engage in “silent interchange of garment after garment, until each was clad in the other’s dress.”

According to Hembree, “the relationship described in some respects would seem to parallel a modern-day same-sex marriage” — and received “recognition by the other members of the tribe.”

The attorney general’s opinion also referred to a 19th century report on Cherokee customs that stated, “There were among them formerly men who assumed the dress and performed all the duties of women and who live full lives in this manner.” This resonates with contemporaneous reports from many tribes, especially in the Great Plains, of men who lived as women.

In the long run, arguments from authenticity and tradition may be even more powerful ways to establish acceptance of gay marriage than reliance on the abstract principles of equality and dignity. That is true not only among Indian tribes, which take a broad range of positions on gay marriage, but also among a wide range of Americans.

After all, opposition to gay marriage derives for the most part from religious tradition, which can effectively resist liberal arguments for modernization. Now that gay marriage is a legal right, the next challenge is to convince opponents that the best reading of their own traditions favors equal treatment of gay couples. The Cherokee nation’s attorney general is leading the way.

Noah Feldman, law columnist for Bloomberg View

March 15, 2013

Michigan Now Has Gay Marriage If You belong to a Tribe

Gay Marriage-Michigan Tribe

 — With an exchange of rings and a kiss, two men became spouses Friday during a ceremony at a northern Michigan Indian reservation after the tribal chairman signed a measure approving same-sex marriage in a state where it's officially banned.
Tim LaCroix, 53, a member of the Little Traverse Bay Bands of Odawa Indians, wed longtime partner Gene Barfield, 60, during a ceremony that blended familiar-sounding vows with native symbolism including drumming and the burning of pungent sage. The men joyfully embraced as Tribal Chairman Dexter McNamara pronounced them married.


"I'm the happiest, luckiest guy in the world," Barfield said.
The men, who live in Boyne City, acknowledged the state of Michigan does not recognize their union but said they hoped the tribe's approval would be one more step toward acceptance across the U.S. Federally recognized Native American tribes are self-governing and not bound by the state law.
Same-sex marriage is prohibited under an amendment to the state Constitution approved by voters in 2004. Attorney General Bill Schuette agrees with an opinion issued by his predecessor, Mike Cox, that Michigan law does not regard gay marriages performed in other states as valid, according to spokeswoman Joy Yearout.
The federal Defense of Marriage Act lets states refuse to recognize gay marriages performed in states that allow them, although the law is being challenged before the U.S. Supreme Court. The outcome of that case could affect a pending suit in Detroit that contends Michigan's ban violates the U.S. Constitution.
Either way, the tribe's new policy is likely to result in an eventual legal showdown with the state, said Richard Monette, a professor and federal Indian law specialist at the University of Wisconsin. Gay couples married under tribal jurisdiction may adopt children, get divorced or be required to pay child support. If they move off the reservation and try to have tribal court orders enforced in state courts, "it could be ... a bit of chaos," he said.
At least two other U.S. Indian tribes recognize gay marriage. The Coquille Tribe in North Bend, Ore., began recognizing the unions in 2009 and the Suquamish Tribe in Suquamish, Wash., did so in 2011. Oregon, like Michigan, has a constitutional ban on same-sex marriage.
Approval from the 4,531-member Michigan tribe didn't happen immediately.
Annette VanDeCar, who is gay, said she and other members began discussing the matter a couple of years ago and proposed a marriage statute to the Little Traverse Bay Bands tribal council in February 2012. It was rejected last summer on a 5-4 vote. But the council approved it by the same margin this month after adding a provision requiring that at least one member of a wedded same-sex couple be a tribal citizen.
"Our tribe is making history. I'm very proud," said Cherie Dominick, who works in its legal department.
The idea that same-sex relationships are immoral is "an imposed Western belief" that contradicts the traditional native concept that people have "two spirits" with male and female natures, she said.
McNamara, who could have vetoed the measure, said he considered it a simple matter of providing equal rights for all tribal citizens. "Everyone has a different view of what love is, and all are deserving of respect," he said.
He signed the bill in the tribal government building to applause from several dozen onlookers. Shortly afterward, LaCroix and Barfield - dressed casually in open-necked shirts and sweaters affixed with white lapel flowers - stepped forward to become the first couple wed under its provisions.
After reciting pledges to each other, they were presented with a slender maple limb bent into a hoop that represents the four stages of life. Using ribbon of different colors, they knotted sacred plants - tobacco, cedar, sage and sweetgrass - to the wood.
Although their relationship began three decades ago in the U.S. Navy, they said marriage was important to fulfill a longtime dream and to send a message to others.
"We want to show people in the gay community that you can do this - you can have a sustained, fulfilling relationship and people will accept you," LaCroix said. "Times are changing."
The men are unsure whether they'll be able to file taxes as a couple or whether Barfield will be recognized as a dependent by LaCroix's health insurer. Other legal hurdles remain. But on Friday, they shared cake with well-wishers and relished their status as a married couple.
"There's no way I can love him more than I already have, but this is still a whole new thing," Barfield said. "My husband - I can't believe I'm finally saying that.”

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