POLITICS
07/02/2015 11:34 am ET Updated Jul 02, 2015

Fight For Marriage Equality Not Over On Navajo Nation

Navajo Nation President Joe Shirley Jr., is seen, Wednesday, Nov. 8, 2006, in Window Rock, Ariz. Celebrating the first day af
Navajo Nation President Joe Shirley Jr., is seen, Wednesday, Nov. 8, 2006, in Window Rock, Ariz. Celebrating the first day after securing a second term in the Navajo general election, Shirley began thinking about how a Democratic-controlled House would help the tribe. (AP Photo/Donovan Quintero)

Alray Nelson grew up with his three sisters in a house with no running water or electricity in Beshbetoh, Arizona, on the Navajo Nation. Nelson, who was raised by his grandmother and single mother, chuckled as he reminisced about the strong Navajo women who raised him.

"My mom always says that she's my father and my mom because, as her only son, she had to instill in me the values of a man," he said. "And so growing up I was always encouraged to be sensitive and to be compassionate, and I think that's key to what it means to be Navajo and LGBTQ on the Navajo Nation."

Nonetheless, living as an openly queer person on the rural reservation is difficult, even dangerous. In 2011, 16-year-old Fred Martinez, a transgender Navajo woman, was brutally murdered by Sean Murphy, who later bragged to his friends that he had "bug-smashed a fag." Although no statistics currently exist about violence against LGBTQ Navajos, the Navajo Nation Human Rights Commission heard testimonies and gathered information last year about violence and discrimination against women and LGBTQ people living on the Navajo Nation, demonstrating the need for legislative action.

In a historic 5-4 decision on Friday, the Supreme Court brought a long-awaited victory to same-sex couples in America, legalizing marriage equality in all 50 states and affirming government recognition of these unions. But the court's ruling does not extend to sovereign Indian Nations, so Nelson and other LGBTQ Native Americans living on reservations need to keep waiting.

The Indian Commerce clause of the Constitution grants Congress, rather than the executive or judicial branches of government, control over Indian Country. That means that unless Congress passes legislation explicitly imposing equal marriage rights on Indian Nations -- which is highly unlikely -- tribes are left to create and enforce their own laws governing marriage.

Amidst the reality of violence and against the unique challenges of being LGBTQ on the reservation, Nelson has held fast to the teachings of sensitivity and compassion instilled in him by his mother and grandmother. Along with his partner, Brennen Yonnie, Nelson is now an outspoken organizer of the Coalition for Navajo Equality, leading the fight for marriage equality on the Navajo Nation. The coalition is a grassroots movement working to build a safe, equal and prosperous environment for LGBTQ Navajos. Its main goal is to repeal the Diné Marriage Act of 2005, which prohibits marriage between couples of the same sex.

The legislature, the Navajo Nation Council, passed the act over the veto of then-Navajo President Joe Shirley Jr.

So far, only seven tribes have explicitly changed their laws to recognize same-sex marriage, but an additional six tribes will issue marriage licenses to same-sex couples and recognize their unions, according to a Columbia Human Rights Law Review paper by law professor Ann Tweedy that was updated earlier this year. On the other hand, 10 tribes have their own defense of marriage acts, including the two largest tribes by population -- the Cherokee Nation and the Navajo. With laws governing marriage under the jurisdiction of tribes -- some of which explicitly exclude same-sex marriages, and many of which have sex-specific language -- the fight for marriage equality is far from over in Indian Country.

Despite a prideful history of sovereignty against the paternalistic direction of the United States, there is a precedent for the Navajo government, located in Window Rock, Arizona, to follow the lead of federal officials in Washington, D.C. -- and although the Navajo will self-determine how they recognize marriage rights, the debate on the reservation has long been intimately entwined with the national debate about love and union. The Navajo originally passed the Diné Marriage Act of 2005 in response to former President George W. Bush's call for amendments to state constitutions banning same-sex unions. Nelson is hopeful that last week's Supreme Court decision will give the legislature the momentum it needs to repeal the Diné Marriage Act.

Nelson said that push must begin with hard conversations on front porches and in the Navajo Nation Council Chambers; in long car rides across the reservation and the traditional hogans, where many Navajos still live and conduct ceremonies.

"It's really hard for a young person to speak to an elder about what sex means and what it means to feel different," Nelson said. "Huge court decisions, like what happened on Friday in regards to marriage, definitely empower those conversations."

Next month, Nelson and LGBTQ Navajos will have a meeting in Window Rock to discuss issues facing the LGBTQ community. At the top of the agenda will be marriage equality and steps to amend or repeal the Diné Marriage Act, which can be undertaken through legislative action, lawsuits in the Navajo courts or a referendum brought to Navajo voters.

Navajo Council Delegate Amber Kanazbah Crotty, who represents the Northern Agency and works closely with Nelson, said she will attend the meeting and strategize the best path forward based upon the needs of the LGBTQ community.

"The conference next month will springboard this conversation and how we move," Crotty said. "Hopefully it attracts Navajos who are living in urban settings to come back home and have this discussion."

On Tuesday, at the beginning of a special session of the Navajo Nation Council, when council members announced important national and international events impacting the Navajo Nation, Crotty was the only member to mention the Supreme Court decision. Given the council's current silence on the issue and prevailing questions about the best political strategy to amend or repeal the Diné Marriage Act, the path toward marriage equality on the Navajo Nation remains uncertain.

"We still have leaders today that say, 'It is fine to get a marriage license off the reservation and to live in a city like San Francisco, or in a border town like Farmington or Gallup, but don't get married here at home because we're not going to recognize it,'" Nelson said.

This means same-sex couples living on the reservation, like Nelson and Yonnie, are denied the same rights and benefits afforded to heterosexual couples in areas like housing, property rights and custody of children.

At the heart of the issue is tradition -- the language, culture and teachings of grandmothers and grandfathers who define what it means to be Navajo. Just this year, a prominent young candidate for president, Chris Deschene, was disqualified in a drawn-out legal dispute over his fluency in the Navajo language, which delayed the election for five months. During Navajo Nation Council sessions, many members choose to speak in Navajo, and the president of the Navajo Nation is required to be fluent.

In an election that was delayed until April, Russell Begaye ultimately defeated Shirley, who served back-to-back terms from 2003 to 2011.

In a statement from his representative, Begaye tacitly supported the act.

"We support the tribal laws that are in place. We stand behind the laws of what marriage is," he said. "I've always said the people need to voice their opinion on critical issues such as this one. The people need to decide on these issues that impact our families and the future generations."

For many Navajos, the path forward, especially on this issue, will be determined by their understanding and interpretation of tradition. Many Navajos who attend the influential churches on the reservation view same-sex marriage as a foreign imposition creeping into Navajo life from cities like Albuquerque and San Francisco.

"My people don't necessarily want to talk about what they would consider Anglo, mainstream issues," Roman Catholic Rev. Dale Jamison told The New York Times in February.

However, many contemporary LGBTQ Navajo point to historical accounts of same-sex unions and even the prominence of the nádleehí -- third-gender people -- in Navajo creation stories. Today, many LGBTQ Navajos embrace the term nádleehí or identify as "two-spirit," to reclaim Navajo and indigenous traditions honoring LGBTQ people. In a 2009 academic article, Navajo Nation Human Rights Commissioner and University of New Mexico Professor Jennifer Denetdale argues the homophobia and heteronormativity of the Diné Marriage Act reflects the hegemony of American colonization on the Navajo people.

Nelson agrees with her position. "When I'm reading comments from Navajo leaders, it seems like the majority of them came from the boarding-school era, and so everything that they were taught from that time of assimilation is so full of misunderstanding, fear and hate for our own people," he said. "It seems like the U.S. government did a very good job at training our Navajo men and women -- our brothers and sisters -- to be their own oppressor."

At stake are the values and traditions all Navajos hold dear.

"I have been raised and I have been taught, through our teachings, that we take care of each other, we look out for each other and we are all related," Crotty said. "And never in those discussions, in those prayers and in those songs, were there any types of exclusions."

CORRECTION: An earlier version of this post said Alray Nelson has four sisters. He has just three.

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