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| In this Jan. 25, 2014 photo provided by Jerry Archuleta, Alray Nelson, left, and Brennen Yonnie, right, pose for a photo at the flea market in Gallup, N.M. The couple has been advocating to have a Navajo Nation law that prohibits same-sex marriages repealed. |
Even if a U.S. Supreme
Court ruling this spring makes same-sex marriage the law, it would
leave pockets of the country where it isn't likely to be recognized any
time soon: the reservations of a handful of sovereign Native American
tribes, including the nation's two largest.
Since
2011, as the number of states recognizing such unions spiked to 37, at
least six smaller tribes have revisited and let stand laws that define
marriage as being between a man and a woman, according to an Associated
Press review of tribal records. In all, tribes with a total membership
approaching 1 million won't recognize marriages between two men or two
women.
Several explicitly declare that same-sex marriages are prohibited. And some have even toughened their stance.
In
December, just weeks after North Carolina began issuing marriage
licenses to same-sex couples, the state's Eastern Band of Cherokee
Indians updated its law to add language preventing gay couples from
having marriage ceremonies performed on tribal land. The resolution
changing the law, which passed 8-1, says court cases around the country
prompted the tribe of about 13,000 enrolled members to review its own
laws.
The Cherokee Nation in Oklahoma and the
Navajo Nation, with about 300,000 members each, maintain decade-old laws
that don't recognize same-sex marriage. Neither tribe has shown much
sign of shifting.
Alray Nelson, a gay rights
activist who lives with his partner Brennen Yonnie on the Navajo
reservation, said the tribe's law denies same-sex couples the right to
be included in decisions on a partner's health care, or to share in a
home site lease. Getting a marriage license would only require a short
drive to a courthouse off the reservation, but the couple - both
enrolled Navajo members - would rather wait until it's allowed on the
reservation.
"We are both planning to build a
life here, and we want to raise a family," he said. "So it's not an
option for us to remove ourselves from our community."
As
with the states, opposition to gay marriage varies among tribes. At
least 10 have recognized same-sex marriage, often well ahead of their
surrounding states and without having judges force their hands. Many
others are neutral.
The Supreme Court will
hear arguments April 28 and could decide by June whether gay couples can
marry in the remaining states and U.S. territories where it's not
allowed. But while 27 states that allow gay marriage got dragged over
the threshold by judges, the sovereign status of federally recognized
tribes means a Supreme Court ruling wouldn't directly affect their laws.
Cherokee
officials in Oklahoma and North Carolina say nothing in their laws
prevents members from getting marriage licenses in adjacent counties.
The Oklahoma-based Cherokee Nation, which has a separate government and
laws from the Eastern Band, passed its marriage law in 2004.
The
Navajo Nation Council voted in 2005 to ban same-sex marriages on the
27,000 square-mile reservation that extends into Arizona, New Mexico and
Utah - all states where such marriages are legal. Then-President Joe
Shirley Jr. vetoed the measure, but lawmakers overturned it.
There's been no push recently among tribal lawmakers to change that, said council spokesman Jared Touchin.
The Osage Nation, bordering Tulsa, Oklahoma, passed a wide-ranging marriage law in 2012 that doesn't recognize same-sex unions.
John
Hawk Co-Cke' (co-KAY), an enrolled member of the Osage Nation who's
gay, said that before reservations were created, many tribes had no
problem with men who embraced their feminine side and women who lean
toward their masculine side, inspiring the term two-spirit people.
Two-spirit people were sometimes given special ceremonial roles because
of their ability to go into both the masculine and feminine world, he
said.
The spread of Christianity starting when
tribes were moved onto reservations contributed to a change in attitude
that's reflected in laws that reserve marriage for heterosexual
couples, Co-Cke' said. The influence of Christianity remains strong in
many tribes more than a century after an era of mass conversions on
reservations.
"It saddens me, but I don't
blame them because they have been forced to give in," said Co-Cke', who
was raised as a Methodist and has for many years led two-spirit retreats
in Oklahoma.
Co-Cke' said he respects the
faith he was raised in, but learning about Native American traditions
that date back further helped him become comfortable with being gay.
"I started feeling that emptiness. That's when the old ones started calling me," he said. "I had to get healthy."
The
Eastern Band of Cherokee Indians' Tribal Council voted to strengthen a
law on the books since at least 2000 with language that says: "The
licensing and solemnizing of same-sex marriages are not allowed within
this jurisdiction."
The tribe's acting
attorney general, Hannah Smith, said the resolution's only practical
effect is to make it explicit that a same-sex marriage ceremony can't
legally be officiated on tribal land. A gay or lesbian couple married in
a neighboring county could live on tribal land with no penalty.
At
least 10 tribes - including the Cheyenne and Arapaho Tribes in
Oklahoma, the Coquille Indian Tribe in Oregon and the Little Traverse
Bay Bands of Odawa Indians in Michigan - have enacted laws since 2009 to
recognize gay marriage, according to the New York-based advocacy group
Freedom to Marry. The group's president, Evan Wolfson, said tribal laws
banning gay marriage send the wrong message even if a tribe member can
get a license from a nearby county.
"It's not
just about a venue. It's about hanging a sign saying: `You're not
welcome here. You're lesser than.'
And what community would want to do
that to its own?" Wolfson said.
Navajos are
set to elect a new president April 21, a week before the Supreme Court
hearing. Shirley, the former president who supports same-sex marriage,
faces former lawmaker Russell Begaye, who said he would let Navajos
decide the matter with a reservation-wide vote. Neither man could change
the law without lawmakers on board, given the rarity of voter-led
ballot initiatives on the reservation where about 185,000 tribe members
live.
"It's a different battle," said Nelson, the activist. "It's a different landscape."
