Holds that Tribal Council Members Lack Standing to Challenge Couple’s Marriage
(Tahlequah, OK, January 4, 2006) — In a ruling issued on December 22, 2005, the Judicial Appeals Tribunal of the Cherokee Nation, the highest Cherokee court, rejected an attempt by several tribal council members to invalidate the marriage of Cherokee citizens Kathy Reynolds and Dawn McKinley, who are represented by the National Center for Lesbian Rights (NCLR). The Court held that the council members, who are the legislative branch of the Cherokee Nation, had no standing to seek a court order invalidating the couple’s marriage because the council members could not show that they were individually harmed or affected by the marriage in any way. The Court rejected the council members’ argument that permitting the marriage to stand would injure “the reputation” of the Cherokee Nation.
“We are relieved by the Court’s ruling,” said Kathy Reynolds. “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.”
This is the second time the Court has rejected a challenge to the couple’s marriage. In May 2004, Reynolds and McKinley applied for and were issued a marriage certificate and the couple wed shortly thereafter. On June 16, 2004, a member of the Cherokee tribe, Todd Hembree, filed a Petition seeking to have the couple’s marriage invalidated. On August 3, 2005, the Cherokee Court found that Hembree lacked standing to bring suit challenging the validity of the marriage because he has failed to show that he will suffer individualized harm.
On August 5, 2005, two days after the Cherokee Court’s ruling, nine members of the Cherokee Nation Tribal Council filed a petition for declaratory judgment against the couple in the Judicial Appeals Tribunal of the Cherokee Nation. The nine members of the Tribal Council, represented by Hembree, claimed to be filing the petition in their official capacity. The petition asked the Court to declare that marriages between same-sex couples are not allowed under the Cherokee Nation Code marriage statute. Six members of the Tribal Council declined to participate in the lawsuit.
“We are pleased that that Court protected the fundamental principles of the Cherokee legal system, which prevents government officials from dragging private citizens into court unless the officials have a direct personal stake in the lawsuit,” said NCLR staff attorney Lena Ayoub, who represented the couple before the Cherokee high court. “The Court held that legislators must demonstrate a specific, individualized harm in order to challenge the validity of a person’s marriage, regardless of whether the marriage is between a different-sex or a same-sex couple.”
In briefs filed with the Court, the Council members argued that marriages between same-sex couples are inconsistent with Cherokee Nation culture, heritage, and tradition. But according to an affidavit submitted to the Court by Professor Brian Gilley, PhD, Assistant Professor of Anthropology at University of Vermont, and who is of Cherokee ancestry, “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.” Professor Gilley’s affidavit described the historical gender diversity among the Cherokee people, as well as evidence of marriage between Cherokee same-sex couples.