Here’s How Same-Sex Marriage Laws Differ On Tribal Lands

Sep 30, 2021

Earlier this month, the Eastern Band of Cherokee Tribal Council upheld its ban on same-sex marriage. BPR looked into how widespread these bans are in Native American Tribal governments across the United States:

The indigenous community has been involved in LGBTQ+ rights for decades - even before the historic 1987 March on Washington for Gay Rights. Marlon Fixico remembers those early days… 

“I am 64 years old, and I am an out and proud two-spirit person,” said Fixico. 

He is managing editor of Native Out, a news source on LGBTQ+ indigenous issues. He’s Cheyenne orginally from Oklahoma.

I lived in Washington D.C. and I was a part of the early part of the two-spirit community forming. Before it was two-spirit we were just native gays and lesbians. And then we coined the term two-spirit back in something like 1989,” said Fixico.

The 2015 Supreme Court decision made same-sex marriage legal in all 50 states, but it didn't extend to all tribal and sovereign lands.

Fixico says, out of over 500 federally recognized tribes - about 40 recognize same-sex marriage. Ten prohibit it. And another 50 don't really have specific laws about it.

“I mean there's different categories. There are some nations that explicitly provide for legal recognition. There are 45 of those at the present moment. The Oglala Sioux tribe of Pine Ridge, (of South Dakota) are one of the most recent additions,” said Fixico. The tribe passed an equal rights law in 2019. 

Many of the sovereign nations also have different laws on how a marriage is recognized. Some follow state law - which means same sex-marriage is automatically recognized - while others have a different code. 

Here’s how it works for the Eastern Band of Cherokee: The first step is to obtain a marriage license from the county register of deeds. This might be in nearby Jackson or Swain Counties. Then bring the license to the tribe to be ratified. The final step of returning the license is what makes the marriage legal. 

The tribal ratification step - known as solemnization - is the step that is up for discussion. The Eastern Band also recognizes marriages that are ratified outside of the Qualla Boundary. 

At a recent tribal council meeting, where a resolution to amend the Cherokee marriage code was up for discussion, Chris Siewers from the Eastern Band of Cherokee Attorney General’s Office explained that by banning same-sex marriage, the current license process is in a bit of a legal limbo. 

“You’re leaving open the possibility that someone could go to North Carolina and say ‘you shouldn’t give full faith and credit to the tribal law because it is on it’s face discriminatory,'” said Siewers.

Tamara Thompson, the Big Cove resident who put forward the Eastern Band resolution, said at tribal council that even though she and her girlfriend could be married by North Carolina law, the tribe still needs to lift the ban. 

“It’s not to say a moot point because there really is a significance with the discrimination of it. Even though we do have the ability to go outside to Swain County Courthouse and get married and come back and it’s recognized,” said Thompson.

For LGBTQ+ activists, marriage is just one part of a larger campaign for equality. 

Alray Nelson is a member of the Navajo Nation.

“I’m lead organizer of Diné Equality and executive director of Navajo Nation Pride,” said Nelson.  

In 2013, he founded Diné Equality after he says he and his partner were denied joint health insurance by the tribe. The group organized the largest LGBTQ celebration in the United States for native and indigenous people in 2019. There were about 7,000 people at the event.

Same-sex marriage has been banned by the Navajo Nation since 2005. But since then Nelson says that there has been progress for LGBTQ+ rights. This summer, the Navajo Nation held its first official Pride Week

“The Navajo Nation Council as of today, has been more progressive and forward with their support of our LGBTQ rights. The conversation around diné marriage and same-sex unions is not the forefront of the conversation anymore. Our movement is propelled by something bigger than marriage,” said Nelson.

Nelson says the group is working with tribal council on an equal rights law that will protect gender identity, gender expression and sexual orientation under Navajo law. 

He says he hopes this law will pass in 2022.  

Hayley Atesi Cooper hopes to be a part of the next generation pushing for LGBTQ+ rights too. She is head organizer for a new Eastern Band of Cherokee LGBTQ+ organization called…

“Nudale Adantedi, that means different hearted different spirited in Cherokee and that includes our LGBTQ kin,” said Cooper, who is a member of the Eastern Band of Cherokee. 

She says she’s learned a lot about Cherokee history while working to fight the same-sex marriage ban, including discussions with Cherokee Nation elders. 

It’s exciting to see tribes and nations across the country support each other, says Cooper.

“It’s been really cool to have elders, people from Cherokee Nation, offer to teach me about these things because they want our history, our traditional knowledge [to be known] - we want everyone to know that in our tribe,” said Cooper. 

The fact that Cherokee Nation – one of the three Cherokee tribes – recognized same-sex marriage in 2016 is a sign of hope for recognition on the Qualla Boundary, says Cooper. 

“I think it just really speaks to the effects of colonialism and how even though the boarding schools in some people’s eyes happened a long time ago, they really were pretty recent. And a lot of those homophobic attitudes, a lot of that trauma it still travels down intergenerationally and that’s what we are seeing happen on council,” said Cooper. 

After the Eastern Band of Cherokee’s Tribal Council vote, advocates say they will continue to explore next steps on the road to marriage equality and LGBTQ rights.