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Cherokee Nation Recognizes Same-Sex Marriage

"The right to marry without the freedom to marry the person of one’s choice is no right at all."

The Cherokee Nation will begin recognizing same-sex marriages, according to the tribe's attorney general, Todd Hembree. The announcement overturns a 2004 tribal ruling specifically defining marriage as between one man and one woman.

In his written opinion, Hembree claimed that while the tribe is not beholden to Obergefell v. Hodges, he agreed with the Supreme Court's ruling in that case, that marriage should be available to all, regardless of sexual orientation.

3D Flag of Cherokee Nation. Close Up.

"The right to marry without the freedom to marry the person of one’s choice is no right at all... Cherokee citizens have a fundamental right not only to choose a spouse but also, with mutual consent, to join together and form a household irrespective of sexual orientation."

Hembree, a lawyer before he became attorney general, had actually defended the Cherokee's marriage ban in tribal court before.

"A lot of time has passed," since the 2004 law, assistant attorney general Chrissi Nimmo told the Tulsa World. "And a lot of social changes have happened."

The decision came after questions arose whether same-sex marriages performed by state officials in Oklahoma should be recognized for tax purposes. Previously, Cherokee courts had avoided the issue.

George Rose/Getty Images

CHEROKEE, NC - OCTOBER 22: Two Cherokee Native American dancers pose for pictures along the highway on October 22, 2016 in Cherokee, North Carolina. Located near the entrance to Great Smoky Mountains National Park on the North Carolina side of the mountains, and at the southern end of the Blue Ridge Parkway, this area is home to the Cherokee Nation band of Indians. (Photo by George Rose/Getty Images)

The attorney general cited a history of non-traditional sexuality and gender identities among the Cherokee before the arrival of European settlers and Christian missionaries.

In the 1830s, writer John Howard Payne described a festival that "resembles that of a homosexual ceremony," according to Hembree, who also cited 19th century explorer Charles Trowbridge, who observed "men who assumed the dress and performed all the duties of women" among the Cherokees.

"Our oral history teaches us also that the Cherokee and Euro-American worldviews differed dramatically regarding appropriate gender roles, marriage, sexuality, and spiritual beliefs," he wrote. "Indeed, while the majority of Cherokees subscribed to the traditional gender roles, evidence suggests a tradition of homosexuality or alternative sexuality among a minority of Cherokees."

Approximately 829,000 Americans claim Cherokee ancestry, with 316,049 actually enrolled as tribal members.

Today's decision takes effect immediately, though marriage equality is still prohibited by the Navajo, Chickasaw, Seminole and several other tribes.

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