While many American citizens were busy celebrating on June 26, members of the Navajo Nation were not able to rejoice. For Navajo tribal members, same-sex marriage is not legal although it is now legal in the United States.
“Once again, we were forgotten on a national level and the fight for marriage equality is not over,” said Alray Nelson, Navajo member and lead organizer for the Coalition for Navajo Equality. “It’s not ended. We’re still here fighting.”
In 2005, the Navajo Nation Council passed a law called the Diné Marriage Act. This law was enacted to specify marriage laws for Navajo members.
In section three, it states, “Marriage between persons of the same sex is void and prohibited.”
Legally a gay, Navajo couple could obtain a marriage license in the state of Arizona, but this couple would not be able to receive Navajo employee benefits, receive home site-leases and according to the Coalition for Navajo Equality a same-sex couple may not be allowed adopt a Native American child.
In Title 9 of the Navajo Code under Domestic Relations, the law states, “The following persons are eligible to adopt a child: a husband and wife jointly, or either the husband or wife, if the other spouse is a parent of the child to be adopted; an unmarried person who is at least 21 years of age; a married person at least 21 years of age who is legally separated from his or her spouse; or in the case of a child whose parents are not married, the child’s unmarried father.”
Howard Brown, member of the Navajo Nation Bar Association, said that the Navajo Nation has attributes of sovereignty meaning that “they have the right and the ability to make their own domestic laws and to be ruled by those laws and so their marriage laws for example are not dependent on or subject to Arizona state laws.”
Brown added that he does not necessarily agree with or endorse the Diné Marriage Act, but acknowledges the Navajo Nation’s sovereignty and right to make its own laws.
Nelson believes that the Diné Marriage Act is discrimination and it is foreign to Navajo people. The Coalition for Navajo Equality is working to lift the ban on same-sex marriage and repeal the Diné Marriage Act. Nelson and his partner will be arguing their case in front of a Navajo judge.
Nelson and his partner, Brennen Yonnie, have been together for almost five years. They made a vow that they would not get married until they are able to do it at their home on the Navajo Nation. Since same-sex marriage is legal in Arizona, they are able to get a marriage license lawfully, but the license would not be recognized on the Navajo reservation.
Regardless of state and federal laws, tribal nations have their own laws and their own government, because they are separate sovereign entities. Native American tribes, like the Navajo Nation, were not original signatories to the United States Constitution, so the Supreme Court’s decision on gay marriage has no impact on the tribal nations. The Navajo tribe is the largest tribe in the U.S. according to population and the Cherokee tribe is the second largest.
The Cherokee tribe also banned same-sex marriage, defining marriage specifically between a man and a woman. According to Nelson, only 12 out of 566 tribes provide protections for same-sex marriage couples.
“Right now, I fear that the Diné Marriage Act sends a message to that one little gay Navajo boy or that one trans girl that sees this law as something that tells them that there’s something wrong with them,” Nelson said. “It tells us gay people living under the reservation that we’re not welcome in our own communities, that we’re not supposed to feel safe in our own communities and that there’s something wrong with us.”
When Alray and Yonnie attempt to repeal the Diné Marriage Act in court in the next few months, they plan to use the Indian Civil Rights act to fight their case. The Indian Civil Rights act was passed in 1968 and it says that if tribal nations have their own sovereignty, they they should have their own laws that reflect their cultural values. Alray plans to argue that one of those cultural values is that they cannot discriminate against their own people.
Alray is taking two different roles. The first role is to work with Navajo elders, young Navajo members and same-sex marriage activists. The second role is to work with a Navajo attorney who will help argue their case in court.
Alray and Yonnie are busy receiving signatures through the Coalition for Navajo Equality. Alray started a petition about a year ago and there are already 266 signatures. They are working to receive 5,000 signatures.
“If Brennen and I are successful at a repealing this law and providing more protections for the LGBTQ community, it will have a ripple-effect across Native America,” Nelson said. “So we see that if we do this, it will send a profound message to the other 500 plus Native nations that the largest tribal nation in the United States is a safe, inclusive, supportive home for gay and lesbian youth and for transgender boys and girls.”
Kendra Hall is a reporter for Arizona Sonora News, a service from the School of Journalism with the University of Arizona. Contact her at firstname.lastname@example.org
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