January 4, 2006

Top US Indian court upholds first gay marriage

By Adam Tanner

SAN FRANCISCO (Reuters) - The top court of the Cherokee
Nation has declined to strike down a gay marriage in what is
seen as a pioneering case in American Indian country, the
couple and officials said on Wednesday.

Cherokee tribal members Kathy Reynolds, 29, and Dawn
McKinley, 34, married in May 2004 in Oklahoma, just weeks after
the city of San Francisco ignited a national debate on gay
marriage by briefly allowing same-sex couples to wed.

Gay rights advocates say the pair are the first registered
same-sex marriage in Indian country.

Because tribal law at the time allowed same-sex marriages,
a tribal clerk gave them a wedding certificate. But members in
the Tribal Council sued, saying the marriage would damage the
reputation of the Cherokees, and the law was later changed.

In a December 22 decision announced on Wednesday, the
Judicial Appeals Tribunal of the Cherokee Nation, the tribe's
highest court in Tahlequah, Oklahoma, rejected the request for
an injunction against the marriage.

"Members of the Tribal Council, like private Cherokee
citizens, must demonstrate a specific particularized harm," the
court ruled. "In the present case, the Council members fail to
demonstrate the requisite harm."

Historians say Native American culture before the arrival
of European settlers tolerated homosexuality, although the
settlers' religious teachings ultimately turned the tribes
against it.

"Since the tribe has become so Westernized and adopted
Christian religions and European ways, they strayed away from
traditional Cherokee values of indifference," Reynolds told
Reuters. "Cherokees are very private where they respect each
other and respect how they live."

Reynolds, a graduate student, said she had lived together
with McKinley, who works in the retail industry, for four years
before they opted to wed. Both women said their friends and
family welcomed their decision although tribal officials


"We really thought our tribe would be accepting of us,"
Reynolds said. "That hasn't proven to be the case."

Added McKinley: "Because of their law we were able to get
married, but now they want to say that it is not family values
or that it is bothering them."

McKinley said the couple did not marry to make a point, but
because of love. "It's exciting and it's scary at the same
time," she said of their pioneering status.

The lawyer for the Tribal Council, Todd Hembree, said the
tribe would no longer fight the marriage. "As far as the Tribal
Council is concerned, that is the end of the legal proceeding,"
he said in an interview on Wednesday.

He said it was also possible that the U.S. government would
have to recognize the marriage because of the sovereign status
of Indian tribes, which could, in theory at least, make them
eligible for federal tax benefits denied to date to gay

Lena Ayoub, an attorney who represented Reynolds and
McKinley, said the federal government has not recognized any
same-sex state marriages to date and called the federal
obligation to recognize sovereign tribal marriage "a very
complicated area of the law."

The largest Indian reservation, the Navajo Nation, also
banned gay marriage last year.