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Cherokee affirms gay marriage ban

Same-sex marriage may be legal in the state of North Carolina, but it’s not on the Qualla Boundary, according to a resolution recently passed by Cherokee Tribal Council. 

Though tribal code already defines marriage as a union between a man and a woman, the newly adopted resolution further specifies that the “licensing and solemnizing” of same-sex marriage cannot happen on tribal land.

Of the councilmembers present at the Dec. 11 vote, seven voted in favor of the resolution: Bill Taylor, Perry Shell, Tommeye Saunooke, Albert Rose, Bo Crowe, Brandon Jones and Adam Wachacaha. Council Chairwoman Terri Henry voted against the resolution and Teresa McCoy refrained from voting. 

The legislation doesn’t really do anything new, however.

“This amendment to tribal law would not change any kind of legal analysis in our court system,” said Assistant Attorney General Hannah Smith at the Nov. 6 council meeting, when the legislation was originally introduced. “Therefore, because we already define marriage here between a man and a woman, there’s no legal need to amend the law.”

While the newly adopted resolution does explicitly prohibit Cherokee licensing of same-sex marriage, that’s a bit of a moot point because the tribe doesn’t issue marriage licenses anyway. 

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“Everything gets processed strictly through our office,” said Jennifer Blanton, deputy register of deeds in Jackson County. In order to be legally married, a couple must pick up a marriage license application from a county office and then return the application once the ceremony has occurred. 

“I just remember off the top of my head we have had a same-sex couple obtain a marriage license here and one of them was an enrolled member,” Blanton said. 

That ceremony was performed Oct. 30, 2014. 

The bulk of tribal land is located in Swain County, but that county’s register of deeds, Diane Williamson Kirkland, said she doesn’t recall seeing any same-sex Cherokee couples come through. 

The legislation met widespread support in council, but one tribal member came forward to speak against it at the November meeting. 

“There might be some people on the reservation that might want to marry each other, and if they can’t do it in our court are you going to recognize it?” asked Robert Cat, adding that he’d like to see a referendum on the issue. 

The answer to Cat’s question seems to be yes. Because Cherokee gives “full faith and credit” to states’ lawful orders, the legislation would not preclude same-sex couples who have received marriage licenses in North Carolina or any other state from accessing the same benefits on the Qualla Boundary as any other married couple. 

What the Cherokee laws do mean, however, is that legal marriage ceremonies between same-sex couples can’t happen on tribal land. Such a ceremony would be void in the eyes of the law. But that was the case even before this latest resolution passed in December. 

Federal courts have struck down state bans on same-sex marriage, including the United States Court of Appeals for the Fourth Circuit, which covers North Carolina. But any challenge to the Cherokee law would have to come through Cherokee Tribal Court, Smith said on Nov. 6.

“This has been a very hot topic in other jurisdictions,” Smith said. “It has not been a hot topic in our jurisdiction. No one has challenged it through the court system. The law that’s proposed isn’t doing anything new. It doesn’t add to what our tribal law has already crafted for this jurisdiction.”

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