Tribal judge extends marriage moratorium

BY TRAVIS SNELL
Assistant Editor – @cp_tsnell
07/09/2004 08:47 AM
TAHLEQUAH, Okla. - A Cherokee Nation District Court judge extended a moratorium on tribal marriage applications at a June 18 hearing, just four days after the Tribal Council amended a law banning same-sex marriages.

District Court Judge John Cripps extended the marriage-application freeze until a hearing can be held to determine the legal status of an Owasso lesbian couple's marriage.

Dawn L. McKinley and Kathy E. Reynolds, both enrolled Cherokee citizens, were recently wed after receiving a tribal marriage application in May.

Mike Miller, tribal communications officer, said the tribe issues marriage applications instead of licenses. After the ceremony, the person conducting the wedding signs the application, and the couple returns it to the tribal court for certification.

The June 18 hearing, which was to determine the marriage's legality, was postponed after McKinley and Reynolds asked for more time to respond to objections filed June 11 and June 16 by Cherokee citizen Todd Hembree.

The couple did not have an attorney who is recognized by the Cherokee courts, officials said. A lawyer must be a member of the Cherokee Nation Bar to argue in tribal court. Officials said a lawyer can be approved to try a case in tribal court after making a special request or apply for Cherokee Bar recognition through an application process.

Muskogee attorney William Mark Bonney said as of press time he was still in the CNB application process and was not "officially" representing the couple. He said attorney Tim Studebaker of Tulsa submitted his CNB application almost a month ago so he could help represent the couple, but that he is still awaiting approval.

On June 11, Hembree, who is also the Tribal Council's attorney, filed an objection to the issuance of the lesbian couple's marriage application, which was issued May 13.

"These individuals being of the same gender do not qualify for a marriage license under Cherokee Nation Code Annotated Title 43," Hembree's objection states. "I would ask the Cherokee Nation Court to continue the moratorium on filing of any marriage license until this matter is resolved."

On May 14, Judicial Appeals Tribunal Chief Justice Darrell Dowty issued a 30-day marriage application moratorium. McKinley and Reynolds tried to register their marriage certificate May 18 after they were married by Leslie Penrose, a Tulsa-area minister, but were turned away by court officials.

Hembree said he filed the objection because Dowty's moratorium was set to expire June 14 and if a Cherokee citizen did not lodge a formal protest, the couple's marriage application was going to be approved.

Bonney said he feels Justice Dowty put himself "in a position of involving himself in a suit by issuing the moratorium without a case in controversy."

With regards to Hembree's June 11 objection, Bonney said there is no basis in Cherokee law for a private citizen of the tribe to object to another citizen's marriage.

"It wouldn't be any different than Todd Hembree having obtained a Cherokee (marriage) license and any other member filing an objection. I think most people would be offended by another member filing an objection to their marriage, and for Judge Cripps to issue and order based upon an objection, and to do it so quickly, I felt it was an unusual act for the judge with again, no case."
The couple again tried to register the marriage application with the court June 15, one day after the 30-day moratorium expired. However, McKinley and Reynolds were turned away again because of the extended moratorium granted by Cripps because of the June 11 objection.

Bonney said that McKinley and Reynolds's June 15 attempt to have their marriage application registered with the tribal court would be their last until the case is heard.

"We agreed to have a temporary order entered that they wouldn't seek to register their certificate until there is a determination on the merits of Todd Hembree's complaint," he said. "That doesn't mean that they believe that Todd Hembree's complaint has any merit."

Scrambling to clarify any future marriage ambiguity, the Tribal Council unanimously voted to amend the tribe's marriage law banning same-sex marriages along with bigamy and adultery at its June 14 meeting.

Under the previous marriage law, anyone 18 or older was capable of contracting marriage. It also stated the only people who would not be married under Cherokee law were parties having a "husband or wife living, parties who are nearer of kin that first cousins, either of the half or of the whole blood, and parties who are insane or idiotic."

With the new law, the tribe recognizes as "a civil contract between one man and one woman."

"I certainly expected it," Bonney said of the marriage law change. "There has been only one couple, these two girls, who have sought to even obtain a marriage license. For the council to believe there was an emergency and that they had to act simply wasn't true.
"I'm disappointed that some council members would vote a law such as this without even reading it," Bonney added. "As was stated in the council meeting, many of the members hadn't even seen it until after they sat down for the council meeting. I don't think there was enough time, from the time they sat down until the time the vote was taken, for any council member to read it, and if they did read it, to understand all of the implications. I was also disappointed that there was no discussion. No one was allowed to speak, and the girls weren't given notice of the council's intention so they could come and have an opportunity to address their concerns."
On June 16, Hembree also filed a petition for declaratory judgment stating that the original Cherokee marriage law implies that marriage certificates are reserved for couples comprised of one man and one woman.

The petition states the original law was based upon the Constitution of Laws of the Cherokee Nation in 1892 and that "same sex marriages were not part of Cherokee history or tradition. Cherokee society in 1892 did not allowsame sex marriage. This Court should not determine that same sex marriage is not allowed under today's laws."

Hembree's petition states that the couple is seeking to take advantage of a "loophole" in the Cherokee statute.

Bonney said he doesn't believe the couple is taking advantage of a loophole.
"Now, I don't think it's a loophole," he said of the tribe's old marriage law. "I think when the statute was drafted in the late 1970s, that the drafters had available to them the fact that Oklahoma had changed its law from being gender neutral in 1976 to one of stating that marriage is between a man and a woman. Also you have the fact that in the Cherokee law, it's not husband and wife. It's ‘my companion' or ‘the one that I live with' and ‘my cooker,' which are genderless terms. The fact that the terms are genderless indicates that it was not intended for Cherokee law to be that marriage is limited to one man and woman."

Many Cherokees contend otherwise.

As of press time, no new court date had been set.

About the Author
Travis Snell has worked for the Cherokee Phoenix since 2000. He began as a staff writer, a position that allowed him to win numerous writing awards from the Native American Journalists Association, including the Richard LaCourse Award for best investigative story in 2003. He was promoted to assistant editor in 2007, ...
TRAVIS-SNELL@cherokee.org • 918-453-5358
Travis Snell has worked for the Cherokee Phoenix since 2000. He began as a staff writer, a position that allowed him to win numerous writing awards from the Native American Journalists Association, including the Richard LaCourse Award for best investigative story in 2003. He was promoted to assistant editor in 2007, ...

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