Same-Sex Marriage Isn't Law Of The Land From Sea To Shining Sea

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DAVID GREENE, HOST:

Same-sex marriage is not legal everywhere in the United States. The Supreme Court's decision in June does not extend to Indian reservations. Only a dozen of the 566 U.S. tribes recognize same-sex marriage. In fact, the country's largest tribes, the Cherokee and the Navajo, have laws specifically prohibiting the unions. Laurel Morales from member station KJZZ reports from Flagstaff, Ariz.

LAUREL MORALES, BYLINE: It's hard to tell Alray Nelson is crying behind his mirrored sunglasses. He can't help but get emotional when he talks about this summer's U.S. Supreme Court ruling that decided same-sex marriage was constitutional. Nelson says he and his partner, Brennen Yonnie, have mixed feelings.

ALRAY NELSON: We both know now that if we leave the Navajo reservation that our relationship's validated off the reservation. But that's a big statement within itself too, is that in our own home community our relationship's not valid. So...

MORALES: That's because a decade ago, when many states approved laws defining marriage between a man and a woman, Navajo lawmakers drafted the Dine Marriage Act, a law that prohibits and refuses to recognize same-sex marriage.

NELSON: We can, yes, remove ourselves from our community and go get married, like, say in a city, in San Francisco or in Albuquerque or let's say we go to a local border town, like Farmington or Gallup. But that's not our community. That's not where we're from. Our songs and those prayers that we were both raised with as traditional young people is located here. The ceremonies are conducted here.

MORALES: Nelson was raised by traditional grandparents in Beshbetoh, Arizona, a tiny rural Navajo community. He and his partner want to get married. So they're speaking with an attorney and may challenge the Dine Marriage Act in tribal court. The lawmakers who passed that act said the purpose of marriage is to create a family. Navajo council delegate Jonathan Hale says that's what his constituents, who are mostly elders, tell him.

JONATHAN HALE: They stand with their viewpoints, as far as what marriage is, was between a man and a woman.

MORALES: The Navajo marriage ceremony focuses on fertility and procreation.

HALE: You know, holding those traditional values, that is what they stick to because out of that relationship, of course, comes a next generation of both families. And that's been carried on through.

MORALES: June's Supreme Court ruling did not apply to the Navajo or any other tribe because tribes are not parties to the U.S. Constitution. Lindsay Robertson directs the Center for the Study of American Indian Law and Policy. He says Congress could theoretically pass a statute that affects Indian country. But he says that's not likely because of how Congress understands its pledge to serve as guardians in American Indians' best interest.

LINDSAY ROBERTSON: And for the past 40 years or so, that tribe's-best-interest standard has meant that Congress has supported tribal self-government.

MORALES: But, Robertson says, the U.S. Bill of Rights extends to tribal jurisdictions through the Indian Civil Rights Act of 1968. Claims made under that law must be heard in tribal court. So the Navajo Supreme Court could eventually hear a challenge to the Dine Marriage Act. Members of the Cherokee, Seminole and other tribes with laws that forbid same-sex marriage could potentially use the Indian Civil Rights Act to challenge those laws in their tribal courts. For NPR News, I'm Laurel Morales in Flagstaff. Transcript provided by NPR, Copyright NPR.