Cherokees' Gay-Marriage Law Is Traditional

The Cherokee Nation, one of the largest registered Native American tribes in the U.S., has officially decided to recognize same-sex marriage. The tribe, as a separate sovereign, isn’t bound by the U.S. Supreme Court’s landmark 2015 gay-marriage decision, Obergefell v. Hodges. But its judgment relies in part on evidence of historical recognition of same-sex relationships among Cherokees -- a basis for contemporary gay rights that is different from, and in some ways deeper than, the equality and dignity rationales that the Supreme Court used.

The history of how tribes have been treated in their interaction with the U.S. legal system is complex and often inconsistent -- usually to the detriment of the tribes. But the basic principle of “Indian law” is that tribes are considered sovereign nations: dependent on the U.S. and subject to congressional control in some respects, but entitled to exercise self-government.