The Cherokee Nation‘s attorney general has said the tribe must lift the ban on same-sex marriage. According to a report, the current law violates a tribal requirement for all of its citizens to be treated equally.
The Cherokee Nation’s Attorney General has issued an opinion declaring bans on same-sex marriage to be in violation of their tribal constitution.
Attorney General Todd Hembree’s 12-page opinion, which was issued Friday, says parts of a 2004 tribal law that defined marriage as “a civil contract between one man and one woman” and prohibited marriage between two persons of the same sex violate the Cherokee Constitution, which requires the equal treatment of tribal citizens.
“The right to marry without the freedom to marry the person of one’s choice is no right at all,” Hembree wrote in his opinion.
Tribal Assistant Attorney General Chrissi Nimmo said Monday that the opinion carries the force of law and legalizes same-sex marriage and adoption by same-sex couples who are members of the Oklahoma-based tribe. The sovereign Cherokee Nation is the largest tribal nation in the United States, comprising more than 317,000 citizens.
Prior to the release of the opinion, Cherokee Nation was among 11 of the nation’s 567 federally recognized tribes that had explicit bans on gay marriage.
‘Similar decision to US’
The move comes more than a year after the US Supreme Court issued its landmark decision in June 2015 striking down same-sex marriage bans in the 13 US states that still prohibited it.
In a similar move, the US legalized gay marriage in June, 2015
Nimmo said the sovereign laws of the Cherokee Nation and other tribes were not directly affected by last year’s US Supreme Court decision legalizing same-sex marriage and that Indian tribes are the only remaining governments in the US that can prohibit or legalize same-sex marriage.
But the Cherokee Nation Constitution contains similar due process and equal protection guarantees as the US Constitution, rights that are reflected in the tribal opinion, she said.
“It’s a very similar decision to that of the United States Supreme Court,” she said.
‘Administratively and practically easier’
Hembree’s opinion was requested by the director of the tribe’s tax commission regarding whether it could accept a same-sex marriage certificate as proof of a woman’s identity, despite the tribe’s laws defining marriage as “a civil contract between one man and one woman.”
The matter arose when a person who was recently married outside the tribe’s jurisdiction offered a marriage certificate issued to her and another woman as proof of her identity, according to the ruling.
In light of the tribe’s prohibition of same-sex marriage, the commission was therefore unsure as to whether it could accept the same-sex marriage certificate.
“We were having to deal with this kind of thing on a daily basis,” Nimmo said. “Administratively and practically, it makes things easier.”