By SCOTT MCKIE B.P.
One Feather Staff
For now, the marriage law of the Eastern Band of Cherokee Indians (EBCI) will remain the same and only recognize unions between a man and a woman. Tabled Ord. No. 574 (2021), submitted by Tamara Thompson, an EBCI tribal member from the Big Cove Community, sought to change the wording of the Tribe’s marriage law (Cherokee Code Section 50-1) and allow same-sex marriage. That legislation was defeated during the regular session of Tribal Council on the afternoon of Thursday, Sept. 9.
The idea of changing the Tribe’s marriage law was first brought forth to Council in June by Thompson, but it was not deemed read and tabled as is customary for newly submitted ordinances and it died on the floor. The same scenario played out the following month. It was then deemed read and tabled during the August session. The ordinance sought numerous changes to Sec. 50.1 including striking that the institution of marriage is only “between a man and a woman”. It also would have added, “Marriage shall not be limited by the gender or sexual orientation of the parties being married” and amended the following sentence to read, “The licensing and solemnization of same-sex marriages, that are duly and legally recognized within the United States, are accepted without discrimination within the jurisdiction of the Eastern Band.”
Thompson told Council during discussion on the issue on Thursday, “There was a time, if you think back to the 1960s, when inter-racial marriages were illegal. That wasn’t right, and the same thing is being done now. It’s in the same category.”
She added, “There’s a Veteran’s Park out here. Every name on that, they fought for freedom. This is freedom. This is a form of freedom, and I deserve freedom too.”
Principal Chief Richard G. Sneed commented, “This is really a simple civil rights issue. That is really what it comes down to. As a tribal government, we should not be passing laws that contain discriminatory language. Our current marriage law, (Cherokee Code Section) 50-1, does include discriminatory language as it recognizes marriage only between a man and a woman.”
He proposed a floor amendment to Ord. No. 574 to strike Section 50-1 entirely and replace it with the following language, ““The institution of marriage is recognized in the territory of the Eastern Band of Cherokee Indians and may be solemnized by any ordained minister. Any judicial official of the Cherokee Court is authorized to officially solemnize a marriage. For a marriage to be legally recognized, a couple seeking to marry shall obtain a marriage license from and record with the Register of Deeds in their county of residence.”
Thompson said she supported Chief Sneed’s proposal. “A neutral law is better than a discriminatory one any day of the week.”
Chris Siewers, of the EBCI Attorney General’s Office, offered his legal thoughts on Chief Sneed’s proposal. “You can’t get married in Cherokee without the involvement of the state. Cherokee doesn’t issue marriage licenses. So, the law is outdated in that respect. Marriage is a three-step process. You have to go get a license from the Register of Deeds, you have to get it solemnized, and then you have to return the license. And, those three steps make a valid marriage.”
He added, “Because Cherokee doesn’t issue the license what we’re talking about here is solemnization. From a legal perspective, leaving the law the way it is now is concerning to me as an attorney for the Tribe because it keeps in a bit of a legal limbo…the State of North Carolina says that the state will give full faith and credit to solemnizations performed on tribal land, but full faith and credit is only extended when the law is not considered discriminatory. This language would not be allowed because of the U.S. Supreme Court opinion in Obergefell – language that restricts marriage to a man and a woman is not allowable in any state in the United States any longer.”
Ord. No. 381 (2014) was passed on Dec. 11, 2014 and added the language to the Cherokee Code banning same-sex marriages within the EBCI tribal jurisdiction. The legislation stated in part, “God’s Holy word defines marriage as being between a man and a woman only, according to Genesis 1:27; and, it defines homosexuality, etc. being error according to Romans 1:27…”
Dan Conseen, an EBCI tribal member from the Wolftown Community and the Pastor of Macedonia Baptist Church, told Council during discussion, “The original ordinance (2014) that was submitted was done so to help protect the churches from outside influences and unnecessary pressure to perform same-sex marriages. And, all we are asking is for a modification to exempt the churches from that problem.”
Yellowhill Rep. Tom Wahnetah noted, “I think this speaks to the law more than it does religion because I think that they should be separated. As lawmakers, that’s what we’re here to do is make the law and make sure it is right and that we don’t violate anyone’s rights.”
Rep. Chelsea Taylor-Saunooke made the motion to accept Chief Sneed’s amendment with Rep. Albert Rose giving a second to the motion. Those two legislators, along with Rep. Wahnetah and Big Cove Rep. Perry Shell, voted in favor of the amendment. The other eight members of Council voted against it, and the amendment failed.
Painttown Rep. Dike Sneed made the motion to kill the ordinance and Vice Chairman David Wolfe seconded his motion. Voting to kill were: Rep. Sneed, Vice Chairman Wolfe, Painttown Rep. Tommye Saunooke, Wolftown Rep. Bo Crowe, Tribal Council Chairman Adam Wachacha, Cherokee Co. – Snowbird Rep. Bucky Brown, Birdtown Rep. Boyd Owle, and Big Cove Rep. Richard French. Voting against killing it were Wolftown Rep. Chelsea Taylor-Saunooke, Birdtown Rep. Albert Rose, and Yellowhill Rep. Tom Wahnetah. Big Cove Rep. Perry Shell abstained from voting stating that he supported the proposed amendment put forth by Chief Sneed.
