Friday, December 16, 2016

Cherokee Nation: Gay-Marriage Law Is Traditional

Some time ago I cited a book called "The Origins and Role of Same-Sex Relations in Human Societies," that concluded that the tolerance, if not open acceptance of same sex relations, was the norm around the world prior to the arrival of Christian missionaries who, along with small pox and other diseases, a desire to oppress and conquer native cultures, often outright genocide, brought homophobia and animus toward those in same sex relationships.  Indeed, many who were in such relationships were put to death. The irony now, of course, is that cretins - I'm sorry, but in my view no other word applies - in parts of Africa and India for example, claim that homosexuality is a western import.  The truth is the exact opposite and it is the homophobia that they want to uphold that is the western import.   Given this true historic background, it is interesting that a recent ruling by the Cherokee nation affirming same sex relationships cited the fact that tradition within the tribe supported what would now be called gay marriage.  Here are highlights from Bloomberg:
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.
Thus, tribes need not govern themselves democratically -- nor are they necessarily bound by the U.S. Constitution. Instead, basic rights in Indian country come from either the tribes’ own fundamental constitutional principles or the Indian Civil Rights Act, enacted by Congress in 1968.
The act includes guarantees of equal protection and due process of law, the same principles that are found in the 14th Amendment to the U.S. Constitution and that were the basis for the Obergefell decision.
[W]hen Todd Hembree, the attorney general of the Cherokee Nation, issued his binding gay marriage opinion last week, the Indian Civil Rights Act went unmentioned. The decision was based on the Constitution of the Cherokee Nation, which he described as “the supreme written will of the Cherokee people regarding the framework of their government.” Hembree mentioned Obergefell only to cite it in a footnote.
What’s perhaps most remarkable about the attorney general’s opinion is how it grounded its argument in Cherokee tradition. In a section titled “Perpetual Partnership and Marriage in the Cherokee Nation,” Hembree devoted significant attention to a ceremony of devotion that was traditionally performed between two men at an annual festival.
Hembree quoted in its entirety an eyewitness description from 1836 by John Howard Payne, a picaresque writer, composer and traveler. In Payne’s account, the ritual “sprang from a passionate friendship between young men” that led them “mutually to a solemn act of devotedness to each other.” The young men would engage in “silent interchange of garment after garment, until each was clad in the other’s dress.”
According to Hembree, “the relationship described in some respects would seem to parallel a modern-day same-sex marriage” -- and received “recognition by the other members of the tribe.”
The attorney general’s opinion also referred to a 19th century report on Cherokee customs that stated, “There were among them formerly men who assumed the dress and performed all the duties of women and who lives full lives in this manner.” This resonates with contemporaneous reports from many tribes, especially in the Great Plains, of men who lived as women. The anthropological literature long referred to them as “berdaches,” from a French word for the younger partner in a gay male relationship; today the preferred term is “two spirits.”
Hembree seemed to demonstrate to Cherokees that acceptance of same-sex relationships is a core element of their unique cultural and religious traditions.
Now that gay marriage is a legal right, the next challenge is to convince opponents that the best reading of their own traditions favors equal treatment of gay couples. The Cherokee nation’s attorney general is leading the way.

It's long past time that more nations and societies wake up to the reality that homophobia is a western Christian import, brough by the same missionaries that proved so disastrous for so many cultures.   Where you find hatred of others, all too often religion is at the core. 

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