Court administrator wants gay marriage case heard

BY TRAVIS SNELL
Assistant Editor – @cp_tsnell
03/10/2006 08:08 AM
TAHLEQUAH, Okla. - A little more than a month after the Cherokee Nation Judicial Appeals Tribunal dismissed a second challenge to a gay couple's marriage, another lawsuit was filed seeking a declaratory judgment on the matter.

CN Court Administrator Lisa Fields filed a Jan. 26 petition asking the court to instruct "her how to direct the court clerk to treat a certificate of marriage" issued to Cherokee citizens Dawn L. McKinley and Kathy E. Reynolds.

The petition follows a long history of filings and rulings involving the case of the Owasso couple's marriage certificate.

On Dec. 22, 2005, the JAT dismissed a lawsuit filed by nine Tribal Councilors stating the councilors failed to "demonstrate a specific particularized harm." Under CN law, a person must prove individual harm before proceeding with litigation.

The first challenge came June 16, 2004, from the council's attorney Todd Hembree when his petition stated that when the couple's certificate was issued CN law did not contemplate, nor expressly authorize, same-sex marriages. The JAT dismissed that challenge Aug. 3, 2005, without a ruling on the case's merits.

Fields' petition states that because her court administrator position includes supervising the District Court clerk, who records tribal marriage certificates, she needs to know if accepting the couple's marriage certificate would violate her oath of "properly recording official records and documents" since the council changed the marriage law prohibiting gay marriages.

According to court documents, the marriage certificate was issued to the couple May 13, 2004. When the two received their marriage certificate, tribal law did not define marriage as a union between a man and woman, but between a "companion" and "cooker." That was changed June 14, 2004, when the council passed a law excluding same-sex couples from marrying. However, CN laws are not retroactive.

"After the issuance of the marriage certificate to Ms. Reynolds and Ms. McKinley, the Tribal Council removed any possible ambiguity in tribal law when they expressly prohibited marriage between two people of the same sex," Fields wrote in a Jan. 26 statement. "Although the council's attorney, and later council members themselves, sought judicial determination declaring the issuance of this license void, the merits raised in both cases were never presented to the tribal courts. Unless this office is ordered by the tribal courts to accept and file the marriage of Ms. Reynolds and Ms. McKinley, this office's position is that the marriage certificate between the two women is voidable, at best, and that a judicial determination on the merits would conclude the marriage certificate void."

Fields also cites a June 10, 2004, legal opinion written by the late and former CN General Counsel Julian Fite that stated CN statutes "reflected" marriage as a union between a man and a woman. Her petition also states that she and her lawyer John G. Ghostbear researched the tribe's law and history and determined that same-sex marriages were "never contemplated or recognized."

The couple's counsel, Lena Ayoub, an attorney with the National Center for Lesbian Rights in San Francisco, said she was not surprised, but somewhat disappointed, that someone from the courthouse filed a petition against her clients' marriage.

"We have been ordered to respond and we will be responding. But at this time, I can't say what exactly it (response) will be. It will likely be in the form of a motion to dismiss, but again, we are still researching the law and trying to determine for ourselves whether Ms. Fields indeed does have standing to bring this action," Ayoub said.

Ayoub said the JAT has given the couple until March 8 to file a response and that no hearing date had been set. She added that even though there is no injunction barring the couple from filing its marriage certificate, the couple has agreed not to present the certificate for registration until final resolution of the case.

Same-sex marriages are illegal in Oklahoma, but the state recognizes CN marriage licenses. However, federal law does not require the state to recognize marriages from other states.
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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