Before the colonists came, same-sex couples had nothing to fear in most tribes. Indians, claimed to be savages, might at most have been ridiculing gay people when the “civilized” Europeans were burning them alive. Tribal marriage customs differed among tribes and with European customs, but Christian missionaries set out to change that.
There is a perhaps apocryphal story about Quanah Parker, after his surrender ended the shooting part of the Indian wars on the Southern Plains. It’s said he was ensconced in the two-story, eight-bedroom Star House near Ft. Sill with whichever of his eight wives and 25 children were around at the time, when a delegation of missionaries visited and informed Quanah that he would have to tell all but one of his wives to leave Star House. Quanah thought on that just briefly before replying, “You tell them.”
Not all Indians could resist missionaries with as much aplomb as the founder of the Native American Church. One of the earliest fissures in the cultural solidarity of many tribes pitted traditional spirituality against Christianity, a struggle that continues to this day among some peoples. This fault line is often also the divide between tribal citizens who wish to ban gay marriage and a majority that does not care one way or the other. (My great-grandfather was a Cherokee Baptist minister and I have no doubt where he would stand.)
The Eastern Band of Cherokees, where the Tribal Council voted back in 2005 to display the Mosaic Ten Commandments in public, made such a point of denouncing gay marriage when the surrounding state of North Carolina started allowing it that they banned even having the ceremony on tribal land.
The Cherokee Nation of Oklahoma passed an anti-gay marriage statute in a panic because two Cherokee women, Dawn McKinley and Kathy Reynolds, had gotten a marriage license in 2004. In a free nation, everything not prohibited is permitted, and the Tribal Council referred to Christianity when prohibiting same sex marriage for the first time in one of the longest histories of statutory law among Indian governments. The legal battle over two women wanting to solemnize their relationship and whether allowing it would unsolemnize anybody else’s went on for most of 2005, with fundamentalist Christianity finally having its way. Recent headlines in the mainstream press, citing the laws of the Cherokee and Navajo nations, give the general impression that bans against gay marriage are near-universal in Indian country. A quick survey of the changing landscape shows this isn’t so.
On the other side of the issue, the Suquamish Tribal Council, in 2011, expressly legalized same-sex marriage after a meeting of the tribe’s entire enrolled membership voted in favor at the request of one gay tribal citizen, according to the Kitsap Sun. At the time, the state in which the Suquamish Reservation is situated, Washington, did not have legal gay marriage but it did have a very robust civil union law.
In 2013, the Little Traverse Bay Bands of Odawa Indians Tribal Council passed the Waganakising Odawak Marriage Statute by a 5-4 vote, having previously rejected it by the same vote. One vote switched when the statute was amended to require that one of the parties getting married be a tribal citizen. The surrounding state, Michigan, banned gay marriage by constitutional amendment at that time. The first same-sex marriage was solemnized by the tribal chairman minutes after the law passed.
The Santa Ysabel Tribe in California acted at a time when gay marriage in the state had been halted waiting for the U.S. Supreme Court to rule on California’s constitutional ban, a wait that ended in 2013 when the SCOTUS refused to hear the appeal from a lower court decision striking it down. The Tribal Chairman aggressively defended marriage equality in announcing the new law, commenting that the San Ysabel Tribe “won't ever forget the sting of prejudice, or stand passively by when others suffer discrimination or denial of basic human rights.”
Not every Oklahoma tribe agreed with the Cherokee Nation but neither did they consider it a big deal. It made news when two men wed on the Cheyenne and Arapaho Reservation in 2013, but in fact the first same-sex marriage under tribal law had been quietly solemnized a year before. The first couple saw no reason to make it a media event and neither did the tribe.
The Navajo Nation outlawed same-sex marriage for the first time in 2005, but a number of Navajos are still working to get the ban overturned. Repeating the topsy-turvy assertion of the federal Defense of Marriage Act, the Navajo statute purported to void existing marriages to “strengthen family values.” While “family values” is the calling card of a particularly fundamentalist Christian point of view, the Navajo are engaged in a genuine internal dispute over what Navajo tradition commands.
The Cherokee Phoenix reprinted an article from the Associated Press listing tribal governments that have jumped on the anti-gay bandwagon and noting that the ruling expected from the Supreme Court on gay marriage will not affect tribal lands. If the AP’s roundup of tribal laws is correct, several of the tribes have mistakenly used “gender” as a synonym for “sex” and may therefore have failed their discriminatory purpose on the face of their laws.
The Chickasaw Nation and the Kickapoo Tribe of Oklahoma, and the Oneida Tribe of Wisconsin did manage to discriminate the way they intended, on the basis of sex.
The gender identity problem appears in the laws of the Cherokee Nation of Oklahoma, the Muscogee (Creek) Nation, the Osage Nation, the Sac & Fox in Iowa, and the Seminole Nation of Oklahoma. Taken literally, such poorly drafted laws would not allow two stereotypically butch lesbians or two stereotypically effeminate men to be married.
Most gay people, however, do not fit the stereotype, and so could have a credible argument that both parties do not share the same gender identity. While it may be unlikely that a tribal court would split interpretive hairs in that manner, it does underscore that these laws are often advocated by people who think they know a gay person when they see one. Or perhaps they expect the pink triangle required in Nazi concentration camps.
The Seminoles have created a further bit of injustice in that they will not allow a same sex divorce. If this provision was on purpose with knowledge of all the implications, it was a particularly vicious cut, since divorcing couples normally have to be residents where they ask for a divorce. Texas purports to follow the same ban on same-sex divorces, and it can put same-sex couples with children or property in a real bind, particularly if the spouses have different earning power or one has been the homemaker.
The bottom line for Indian nations in the matter of marriage equality is the same as in so many other issues. One size does not fit all. Those tribes, like the Navajo, who engage in a serious debate to clarify traditional tribal values, will come out with answers nobody outside the tribal nation is equipped to criticize. Their judgment will be protected because state and federal laws, even of constitutional status, do not apply.
Those who would take the side of the missionaries against their own tribal citizens, on the other hand, enjoy the same protection from state or federal interference. This is so even when what is being protected is the sovereign right to swim against the current of history.