Attorney General Todd Hembree of the Cherokee Nation handed down the decision December 9. The attorney general of the Cherokee Nation yields major power for its more than 300,000 tribesmen. The power vested in him reads as such: "The Attorney General shall represent the Nation in all criminal cases in the courts of the Nation, and in all civil actions wherein the Cherokee Nation is named as a party."
The decision came about after a woman presented her so-called same-sex marriage certificate to the Cherokee Nation Tax Committee. Under Tribe Code, "Consent of parties' Marriage, so far as its validity in law is concerned, is a civil contract between one man and one woman, to which the consent of the parties, capable in law of contracting, is essential."
Attorney General Todd Hembree, educated at Notre Dame Law School, a Catholic institution, deemed the ban on gay marriage "unconstitutional." Hembree's decision will now officially recognize same-sex marriages in the tribe.
Although the ruling of the 2015 U.S. Supreme Court ruling legalizing "gay marriage" last year in Obergefell v. Hodges did not affect the Cherokee tribe directly, since it's a sovereign nation, Cherokees performed gay marriages outside of the tribe's jurisdiction and returned to Cherokee Nation seeking formal recognition.
Tribal assistant attorney general Chrissi Nimmo said Monday that the Cherokee Nation operates under a government that mirrors the United States. "It's a very similar decision to that of the United States Supreme Court," she said.
Citing sources from biographies of European settlers, the decision claims that "evidence suggests a tradition of homosexuality or alternative sexuality among a minority of Cherokees." Chief Chad Smith approved the recent ruling based on "adhering to past Cherokee law."
It is Hembree's opinion that banning gay marriage "created two classes of Cherokee citizens" and "offends the fundamental precepts of equality."
Of the other 567 federally recognized Native American tribes, those upholding bans on gay marriage are the Chickasaw, Choctaw and Seminole Nations.
One such passage that will be removed from the Cherokee Tribal Code reads:
No marriage shall be contracted whilst either of the parties has a husband or wife living; nor between parties who are nearer of kin than first cousins whether of the half or of the whole blood; nor between parties who are insane or idiotic nor between parties of the same gender.
Church Militant reached out to the Cherokee Nation for comment but as of press time has received no response.