Cherokee Nation Attorney General Todd Hembree issued an opinion Friday that the tribe's 2004 decision not to recognize same-sex marriages and partnerships is unconstitutional.
"The official attorney general opinion carries the law; there is not an appeals process," Chrissi Nimmo, Cherokee Nation assistant attorney general, said Friday. "Same-sex marriage is legal now under Cherokee Constitution."
Nimmo said the state gives full faith and credit to tribal courts, so a marriage license from the tribe would be fully recognized.
"I believe, as of today, a same-sex couple, where one of them is a Cherokee Nation citizen, could apply for and receive a marriage license from the Cherokee Nation, and after the ceremony, they could turn in the completed license and be legally married," Nimmo said.
In his written opinion, Hembree said portions of the Cherokee Nation's Marriage and Family Act are "unconstitutional," including the tribe's definition of marriage as a "civil contract between one man and one woman." Another section of the act, which prohibits a marriage between two people of the same gender, is also unconstitutional, he said.
Hembree's opinion was released in response to a question by CN Tax Commission Director Sharon Swepston, who asked whether the entity is allowed to recognize valid civil unions, same-sex marriages and same-sex domestic partnerships from other jurisdictions for the purpose of tagging a vehicle.
Nimmo said the CN attorney general's office has increasingly dealt with informal questions over issues such as health insurance and name changes, especially since the U.S. Supreme Court ruled same-sex marriages legal last summer.
Hembree said the two sections of tribal law he deems unconstitutional "are null and void until a different opinion or order is entered by a Cherokee Nation court... ."
The Marriage and Family Act was passed in 2004 with a vote of the Cherokee Nation Tribal Council. The decision came after two women applied for a marriage license from the Cherokee Nation.
The couple completed the license and the wedding ceremony, but when they tried to turn in the license, the court administrator refused to accept it. Eventually, the CN Tribal Council became involved when they decided to pass a marriage act.
Hembree now says the Nation must recognize valid civil unions, same-sex marriages and same-sex domestic partnerships from other jurisdictions for services, programs, and CN benefits.
"The magnitude of the question presented is not lost on this office," Hembree wrote. "Many Cherokees hold deep-seated religious, moral, and ethical convictions that marriage should be limited to one man and one woman, whereas, many other Cherokees hold equally strong convictions that homosexual couples should be treated the same as heterosexual couples. Neither view dictates our answer, nor guides our analysis."
Although Hembree's opinion is a legal decision, Nimmo feels the historical context is important, as well.
Hembree cited, in his opinion, the "history of perpetual partnership and marriage in the Cherokee Nation," including changing views shaped through intermarrying with non-Cherokees "and the acculturation of Anglo-American values."
Evidence exists, he said, to suggest a "tradition of homosexuality or alternative sexuality among a minority of Cherokees."
Before the CN Tribal Council defined marriage as being between a man and a woman in 2004, Hembree said, Cherokee laws were "gender-neutral" and marriage was defined as a "civil contract."
"There can be no doubt that the same-sex marriage ban rests solely upon distinctions drawn according to sexual orientation," Hembree said. "The right to marry without the freedom to marry the person of one's choice is no right at all. The history of perpetual partnerships and marriage among Cherokees supports the conclusion that Cherokee citizens have a fundamental right not only to choose a spouse but also, with mutual consent, to join together and form a household irrespective of sexual orientation. Certainly, the Cherokee government's intrusion into these core decisions undoubtedly imposes inexcusable shame on individual Cherokees."
It is Hembree's opinion that the 2004 Act approved by the Tribal Council "created two classes of Cherokee citizens" and "offends the fundamental precepts of equality."
According to Nimmo, it would take litigation from a "person with standing" to overturn the opinion.