SAME-SEX MARRIAGE IN THE CHEROKEE NATION:
Marriage of a lesbian couple,
citizens of the Cherokee Nation
In 2004, Kathy Reynolds, 27, and Dawn McKinley, 32, were a loving,
committed lesbian couple, who are both citizens of the Cherokee Nation. They
remain so today. They were thrust into the same-sex marriage debate by an
incident that occurred when Kathy was hospitalized. The hospital did not
allow Dawn to visit Kathy, because the institution only recognized the
couple as roommates, not as spouses -- even though they had been living
together for years and were parenting a child.
In order to assure their rights in the future, they applied for and
received a marriage application from the clerk of the Cherokee Nation
District Court on 2004-MAY-13. "The Cherokee Nation has issued marriage
certificates since 1992, and because it it a sovereign nation, those
licenses are recognized by Oklahoma and other states." 7 Reynolds said in an
interview: "We were told that the Cherokee law didn't exclude same-sex
marriages. We just wanted recognition for our relationship." McKinley
said: "We were very naive. We thought we'd get married under Cherokee law
and that would be the end of it. We never thought it would turn into this."
The next day, MAY-14, the Chief Justice of the Court initiated a
memorandum preventing any further same-sex couples from obtaining marriage
certificates. Further, no marriage certificates could be filed with the
Cherokee Nation by same-sex couples who had been married.
On 2004-MAY-18, McKinley and Reynolds were married by a minister who had
been certified by the Cherokee Nation to perform marriages. The wedding took
place on Cherokee land at a park in Tulsa, OK. Their intent was to have a
traditional Cherokee ceremonial wedding after their marriage license was
certified. However, when they attempted to register the marriage with the
tribal court, it was rejected.
The Tribal Council unanimously passed a measure in 2004-JUN excluding
same-sex couples from marrying within their jurisdiction. However, under
Cherokee law, the measure is not retroactive and thus did not impact the McKinley - Reynolds
Petition to nullify the marriage:
||2004-JUN-11: Todd Hembree, a member of the Cherokee Nation,
filed a letter with the District Court objecting to the issuance of the
marriage license. Although he is a lawyer for the Cherokee Tribal
Council, he acted solely as a private individual.
||2004-JUN-16: Hembree filed a Petition for Declaratory
Judgment with the District Court asked that the marriage be
nullified. He said: "I took action because I feel strongly that our
laws have to stand for something. The Cherokee statute is not
gender-neutral. It is meant to be between a man and a woman. I my
view, they are trying to circumvent Oklahoma law." He also filed a
temporary injunction to prevent the couple from registering their
||2004-JUN-18: The District Court granted Hembree a temporary
injunction, nullifying the couple's marriage.
||2004-JUL-12: Dawn and Kathy, representing themselves, filed a
Motion to Quash and a Motion to Dismiss Hembree's
Petition for Declaratory Judgment using as grounds that he lacked
standing. McKinley said: "There were
about 35 lawyers on the list of those permitted to argue in tribal
court, and one day I went down the whole list and couldn't find anyone
willing to take the case. One guy laughed and hung up on me."
Finally, the National Center for Lesbian Rights (NCLR) in San
Francisco, CA agreed to represent the couple.
||2004-AUG-12: The couple fled a Motion for Summary Judgment,
again arguing that Hembree lacked standing.
||2004-DEC-10: The District Court rejected the couple's three
||2004-DEC-17: The couple appealed to the Judicial Appeals
Tribunal, the highest court in the Cherokee Nation.
Mike Miller, a spokesperson for the Cherokee Nation said: "Whatever
happens [with the petition] will set no precedent -- it will affect only
this one case."
"One neighbor just stopped talking to us when this became
I mean, really, who are we hurting here? We don't bother anyone,
we mind our own business....[We] stick to ourselves. How would our
marriage hurt anyone?" 2
2005-JUL-08: NCLR filed a motion with the Judicial Appeals Tribunal to dismiss Hembree's petition. They argued that he does not have standing to
challenge the validity of the marriage:
"The requirement that a party must have standing to
maintain a court action is necessary to protect people’s right to
conduct their lives in privacy and peace, without being hauled into
court by third parties who have no relationship to them and no
direct interest in the matter being litigated. The standing
requirement 'reflects a due regard for the autonomy of those most
likely to be affected by a judicial decision.' Diamond v. Charles,
476 U.S. 54, 62 (1986). 'The exercise of judicial power . . . can so
profoundly affect the lives, liberty, and property of those to whom
it extends, that the decision to seek review must be placed in the
hands of those who have a direct stake in the outcome. It is not to
be placed in the hands of concerned bystanders, who will use it
simply as a vehicle for the vindication of value interests'."
Hembree said that as a citizen of the Cherokee Nation, he would be
affected because the tribe would not be honoring its own laws. He said
that the entire tribe would suffer because it would be "the only
tribe in the United States to recognize same-sex marriage in violation
of our own statute." 7
2005-AUG-03: The Cherokee National Judicial Appeals
Tribunal dismissed Hembree's petition. They wrote: "The Court
FINDS that the Petitioner, Todd Hembree, has failed to show that he will
suffer individualized harm and that he, therefore lacks standing to
maintain his action." 5
National Center for Lesbian Rights Staff Attorney, said:
"This is a tremendous victory for our clients and the Cherokee
Nation. By dismissing the case, the Court rejected the idea that a
private citizen can attack the validity of a marriage simply because he
has strong political beliefs regarding the right of same-sex couples to
marry. Permitting same-sex couples to marry does not individually harm
or affect other people. The court's ruling protects people's right to
conduct their lives in privacy and peace, without being hauled into
court by third parties who have no relationship to them and no direct
interest in the matter being litigated."
Richard LaFortune, Campaign Director for 2SPR (2 Spirit
Press Room), a Native GLBT Media Project 8 in Minneapolis, Minnesota
said: "This decision speaks to the primacy of native
sovereignty and traditions that demonstrate acceptance and dignity of
all human beings and our spiritual traditions."
Dawn and Kathy said: "We
are so happy that the Court dismissed the case. Our relationship is
precious to us and we're grateful for all the support we've received
from throughout the world." 6
2005-AUG-06: The couple's marriage license remains
"Tribal Government Opposes Same-Sex Marriage,"
CitizenLink, Focus on the Family, 2005-AUG-01.
Louis Romano, "Battle Over Gay Marriage Plays Out in Indian
Country," Washington Post, 2005-AUG-01, at:
Text of "McKinley and Reynolds' motion to dismiss" before the
Judicial Appeals Tribunal, 2005-JUL-08, at:
"Reynolds and McKinley, Cherokee Nation, Victory!," NCLR,
"Order granting motion to dismiss," Judicial Appeals Tribunal
of the Cherokee Naiton [sic]," at:
"Cherokee Court Rejects Petition to
Block Same-Sex Marriage," NCLR, 2005-AUG-03, at:
S.E. Ruckman, "Cherokee Nation court
hears same-sex marriage arguments," posted on 2005-AUG-03 at:
- The term "GLBT" is a commonly used abbreviation referring to gay, lesbian,
bisexual and transsexual persons.
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Copyright © 2005 by Ontario Consultants on Religious
Originally written: 2005-AUG-06
Latest update: 2005-AUG-06
Author: B.A. Robinson