The Cherokee Nation, one of the largest registered Native American tribes in the U.S., has officially decided to recognize same-sex marriage. The tribe, as a separate sovereign, isn’t bound by the U.S. Supreme Court’s landmark 2015 gay-marriage decision, Obergefell v. Hodges. But its judgment relies in part on evidence of historical recognition of same-sex relationships among Cherokees — a basis for contemporary gay rights that is different from, and in some ways deeper than, the equality and dignity rationales that the Supreme Court used.
The history of how tribes have been treated in their interaction with the U.S. legal system is complex and often inconsistent — usually to the detriment of the tribes. But the basic principle of “Indian law” is that tribes are considered sovereign nations: dependent on the U.S. and subject to congressional control in some respects, but entitled to exercise self-government.
Thus, tribes need not govern themselves democratically — nor are they necessarily bound by the U.S. Constitution. Instead, basic rights in Indian country come from either the tribes’ own fundamental constitutional principles or the Indian Civil Rights Act, enacted by Congress in 1968.
The act includes guarantees of equal protection and due process of law, the same principles that are found in the 14th Amendment to the U.S. Constitution and that were the basis for the Obergefell decision. But when the Supreme Court updates its interpretation of the Constitution, as it did in the gay marriage case, that doesn’t automatically change the meaning of Indian Civil Rights Act. So, because equal protection and due process were not understood in 1968 to require a right to gay marriage, the act hasn’t been held to mandate gay marriage in Indian country.
As a result, when Todd Hembree, the attorney general of the Cherokee Nation, issued his binding gay marriage opinion last week, the Indian Civil Rights Act went unmentioned. The decision was based on the Constitution of the Cherokee Nation, which he described as “the supreme written will of the Cherokee people regarding the framework of their government.” Hembree mentioned Obergefell only to cite it in a footnote.
What’s perhaps most remarkable about the attorney general’s opinion is how it grounded its argument in Cherokee tradition. In a section titled “Perpetual Partnership and Marriage in the Cherokee Nation,” Hembree devoted significant attention to a ceremony of devotion that was traditionally performed between two men at an annual festival.
Hembree quoted in its entirety an eyewitness description from 1836 by John Howard Payne, a picaresque writer, composer and traveler. In Payne’s account, the ritual “sprang from a passionate friendship between young men” that led them “mutually to a solemn act of devotedness to each other.” The young men would engage in “silent interchange of garment after garment, until each was clad in the other’s dress.”
According to Hembree, “the relationship described in some respects would seem to parallel a modern-day same-sex marriage” — and received “recognition by the other members of the tribe.”
The attorney general’s opinion also referred to a 19th century report on Cherokee customs that stated, “There were among them formerly men who assumed the dress and performed all the duties of women and who lives full lives in this manner.” This resonates with contemporaneous reports from many tribes, especially in the Great Plains, of men who lived as women. The anthropological literature long referred to them as “berdaches,” from a French word for the younger partner in a gay male relationship; today the preferred term is “two spirits.”
Although Hembree’s opinion did make the argument that the Cherokee constitution’s guarantees of equal protection and due process trump a 2004 law passed by the tribal legislature that outlaws gay marriage, the attorney general was trying to achieve something more significant than simply applying the Supreme Court’s reasoning in the Cherokee context. Hembree seemed to demonstrate to Cherokees that acceptance of same-sex relationships is a core element of their unique cultural and religious traditions.
In the long run, arguments from authenticity and tradition may be even more powerful ways to establish acceptance of gay marriage than reliance on the abstract principles of equality and dignity. That is true not only among Indian tribes, which take a broad range of positions on gay marriage, but also among a wide range of Americans.
After all, opposition to gay marriage derives for the most part from religious tradition, which can effectively resist liberal arguments for modernization. Now that gay marriage is a legal right, the next challenge is to convince opponents that the best reading of their own traditions favors equal treatment of gay couples. The Cherokee nation’s attorney general is leading the way.
Payne, who wrote the song “Home Sweet Home” and ended his career as U.S. consul in Tunis, himself never married. A 19th-century biographical compendium quotes a correspondent who called him “a gay Bohemian, extravagant in his taste, lavish in expenditure; living much, too much ‘mid pleasures and palaces,’ yet with a vein of sadness deep in his heart.” This may well be coded language intended to suggest homosexuality.
The scholar Gregory Smithers has written an article exploring evidence for and against the presence of two-spirit people among the Cherokee, including references to Cherokee women going into battle dressed as men.
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by Noah Feldman
Source – Bloomberg