They Live in the US, but These LGBTQ+ Couples Can’t Get Married. Here's Why

By Harmeet Kaur

(CNN) — Alray Nelson and his partner Brennen Yonnie are married in all but name.

They’ve been together for 12 years. They’ve raised a child together. They wear wedding rings and refer to each other as husbands. Unlike straight married couples, however, they can’t benefit from each other’s insurance, file taxes jointly or build a house together on tribal land.

Same-sex marriage is banned on the Navajo Nation, the sprawling reservation that spans Arizona, Utah and New Mexico. The two could have married in another jurisdiction and moved somewhere that recognizes the rights of LGBTQ couples. But the reservation is home, and they feel there’s no other place for them to go. So despite a lifelong commitment to each other, they don’t plan to marry until the ban is lifted.

“When it comes to having a marriage certificate, that’s something that we will not obtain until that marriage certificate says ‘the Navajo Nation’ on it,” Nelson, executive director of Navajo Nation Pride and an executive assistant to Navajo Nation President Buu Nygren, told CNN.

That day could be on the horizon.

In June, Navajo Nation Council Delegate Seth Damon introduced a bill to repeal the prohibition on same-sex marriage. The legislation has cleared three committees and faces just one more before it can go before the full council. Meanwhile, key Navajo leaders have voiced support for the measure.

If the bill clears the committee stage, Nelson said he expects it to go before the full council in mid-October. And if it passes, he added, it could have a ripple effect on Indigenous nations in the US.

“It sends a message of inclusiveness across Indian Country and the United States — that the largest target tribal nation in the country stands on the right side of history,” he added. “It supports our LGBTQ relatives, as our nations always have since time immemorial.”

Navajo leaders banned same-sex marriage in 2005

Though the Supreme Court’s 2015 ruling in Obergefell v. Hodges legalized same-sex marriage nationwide, the Navajo Nation and other federally recognized tribes are sovereign and not bound by the court’s decision. While at least 37 tribal nations have marriage equality laws on the books, others — including the Navajo Nation — explicitly prohibit it.

In 2005, the Navajo Nation Council passed the Diné Marriage Act, which defined marriage as between a man and a woman and declared same-sex marriage “void and prohibited.” Its sponsor characterized the law as promoting family values and preserving Navajo tradition.

Jennifer Denetdale, professor and chair of American Studies at the University of New Mexico, said that the Diné Marriage Act was enacted during a moment when broader American society appeared to be concerned about the preservation of the nuclear family. But according to Denetdale, some Navajos were surprised that the council felt such legislation was necessary. (Then-President Joe Shirley Jr. vetoed the legislation, calling same-sex marriage on the Navajo Nation a “non-issue” and the ban discriminatory, but the council ultimately overrode the veto.)

“Our matrilineal system recognizes that kin relationships are the building blocks of our nation and our relationships,” she told CNN. “We privilege and we prize our kin relationships. This means that we remember our inclusion of our LGBTQ2 (Two-Spirit) relatives.”

Though supporters of the Diné Marriage Act have cited concerns over preserving Navajo tradition, what constitutes Navajo tradition has also been a subject of debate. Some scholars have written that Navajos traditionally acknowledged and respected a third gender, the “nádleehí” (and even multiple genders) — though there’s disagreement over whether relationships between the nádleehí and their partners correspond to modern LGBTQ relationships.

The proposed legislation to repeal the Diné Marriage Act’s ban on same-sex marriage maintains that the traditional Navajo wedding ceremony will remain between a man and a woman. LGBTQ couples will be able to marry on the Navajo Nation through other methods, and the tribal government will also recognize such marriages performed in other jurisdictions.

“The way in which it’s written is intended to acknowledge that the Navajo people consider marriage to be sacred between a man and a woman,” Denetdale said. “But the legislation recognizes and acknowledges that there are relationships between people who we may consider to be of the same sex, who have always had long-standing and fruitful and loving relationships as well. And those relationships deserve to be recognized by the Navajo Nation.”

The proposed legislation also calls for changing gendered language in tribal statues to be more inclusive, and removing provisions of Navajo code that require married women to have their husband’s consent before making certain financial decisions.

Damon, who sponsored the bill, did not respond to CNN’s requests for comment.

Some Navajos are hesitant to return home without marriage equality

Nelson said a repeal of the same-sex marriage ban would have a profound impact on him and his partner, as well as other LGBTQ couples on the Navajo Nation. For example, if his partner were to experience a medical emergency, he might not have visitation rights or any authority over decisions regarding his care.

“God forbid something happened to his life, I do not have any decision making power over what happens to my husband — a privilege that same-sex couples and my mom and my dad had in their marriage,” he said.

While Nelson and his partner have chosen to remain on the Navajo Nation, others say they could be forced to build a life elsewhere if circumstances don’t change.

“If things don’t go the way I want them to go, then it’s quite possible that I may have to leave and find a place where I am welcomed and celebrated,” said Charlie Amáyá Scott, a scholar and educator who runs the popular Instagram account Diné Aesthetics.

Such considerations are partly why Josie Raphaelito doesn’t currently live on the Navajo Nation.

Raphaelito, a board member for Diné Pride and a vocal advocate for marriage equality on the Navajo Nation, grew up in Pine Hill, New Mexico, on the Ramah Navajo Indian Reservation and left to attend college and graduate school on the East Coast. Though she now lives in Buffalo, New York, with her wife, she said she always planned on returning home eventually.

While there are other factors affecting her decision, Raphaelito said she’s hesitant to move back to the Navajo Nation when she knows she and her wife would lack protections afforded to straight married couples.

“It’s hurtful to not be seen as equal and to have your partner not seen as equal either,” she said.

Marriage equality advocates are optimistic about the bill’s future

There have been other attempts to repeal the Navajo Nation’s ban on same-sex marriage.

The first bill, introduced last year by Navajo Nation Council Delegate Eugene Tso, was initially withdrawn and resubmitted with changes. The council concluded its legislative session before the second proposal could come up for a vote.

Nelson and Raphaelito are optimistic that the third time will be the charm.

“The years and years of advocacy and education are starting to really pay off,” Raphaelito said. “(People) are serving as allies and introducing bills and encouraging their colleagues to listen with their hearts and be a better relative to all of our Navajo people.”

While some LGBTQ and Two-Spirit Navajos report not feeling welcome in their communities, the tide is turning. Organizations such as Diné Equality have long advocated for LGBTQ rights. The Navajo Nation, meanwhile, observed Diné Pride Week for the first time in 2017 and the festivities have continued in the years since.

“It’s time for the Navajo government to really exercise its sovereignty to protect people that look and live like me and my husband,” Nelson said.

Nelson said he feels confident that the council has the votes to pass the legislation this time around. And if that happens, he and his partner plan to be first in line for a marriage license issued by the Navajo Nation.

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Pictured above is Alray Nelson and his partner Brennen Yonnie.