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Supreme Court Ruling On Same-Sex Marriage Doesn't Apply To Tribes

Alray Nelson

Alray Nelson and his partner Brennen Yonnie want to get married on the Navajo Nation but the Dine Marriage Act prohibits same-sex marriage.

It’s hard to tell Alray Nelson is crying behind his mirrored sunglasses. He can’t help but get emotional when he talks about this summer’s U.S. Supreme Court ruling that decided same-sex marriage was constitutional. Nelson said he and his partner Brennen Yonnie have mixed feelings.

"We both know now that if we leave the Navajo reservation that our relationship is validated off the reservation," said Nelson, the lead organizer of Coalition for Navajo Equality. "But that’s a big statement within itself, too. In our own home community, our relationship’s not valid."

That’s because a decade ago, when many states approved laws defining marriage between a man and a woman, Navajo lawmakers drafted the Dine Marriage Act, a law that prohibits and refuses to recognize same-sex marriage.

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"We can, yes, remove ourselves from our community and go get married like say in a city in San Francisco or in Albuquerque or let’s say we go to a local border town like Farmington or Gallup," Nelson said. "But that’s not our community. That’s not where we’re from. Our songs and those prayers we were both raised with as traditional young people is located here. The ceremonies are conducted here."

Nelson was raised by traditional grandparents in Beshbetoh, Arizona, a tiny sheepherding Navajo community.

He and his partner want to get married, so they’re speaking with an attorney and may challenge the Dine Marriage Act in tribal court.

June’s Supreme Court ruling doesn’t affect American Indians. Only a dozen of the 566 U.S. tribes recognize same sex marriage. The country's two largest tribes -- the Cherokee and the Navajo -- have laws that prohibit same-sex marriage.

The lawmakers who passed that act said the purpose of marriage is to create a family. Navajo council delegate Jonathan Hale said that’s what his constituents, who are mostly elders, tell him.

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"They stand with their viewpoints as far as what marriage is between a man and a woman," Hale said.

The Navajo marriage ceremony focuses on fertility and procreation.

"Holding those traditional values that is what they stick to because out of that relationship of course comes a next generation of both families and that’s been carried on through," Hale said.

This summer's Supreme Court ruling did not apply to the Navajo or any other tribe, because tribes are not parties to the U.S. Constitution, said Lindsay Robertson, the director of the Center for the Study of American Indian Law and Policy at the University of Oklahoma. He said Congress could theoretically pass a statute that affects Indian Country. But he said that’s not likely because of how Congress understands its pledge to serve as guardians in American Indians’ best interests.

"For the past 40 years or so that ‘tribes’ best interests’ standard has meant that Congress has supported tribal self government," Robertson said.

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But Robertson said the U.S. Bill of Rights extends to tribal jurisdictions through the Indian Civil Rights Act of 1968. Claims made under that law must be heard in tribal court. So the Navajo Supreme Court could eventually hear a challenge to the Dine Marriage Act. Members of the Cherokee, Seminole and other tribes with laws that forbid same-sex marriage could potentially use the Indian Civil Rights Act to challenge those laws in their tribal courts.

Navajo council delegate Amber Kanazbah Crotty said it’s time to examine the Bill of Rights and the Dine Marriage Act side by side. She said she’s worried about its impact on today’s youth.

"Young Navajos are taking their lives who identify with the LGBTQ community because they feel discriminated against," Crotty said. "If suicide is the second leading cause of death among young Navajo men, this is something we need to address."

Crotty said she may sponsor a bill to amend or repeal the Dine Marriage Act.