For Native Americans, fight for gay marriage isn't over

Editor's note: The story has been updated to reflect the lawsuit's filing on Wednesday.

Soon after the U.S. Supreme Court extended the right to marry to same-sex couples, Cleo Pablo and her longtime partner, Tara Roy-Pablo, tied the knot. But the minute the couple steps onto the Ak-Chin Reservation just south of the Valley, where Pablo grew up, their marriage certificate is meaningless.

As sovereign nations, the 567 Indian tribes within the United States' borders are not obligated to honor the rulings of American courts. The vast majority of them — including all 22 in Arizona — have so far ignored the high court's ruling on marriage.

Pablo, 44, is fighting to change that. She and Roy-Pablo, who is Caucasian, filed a lawsuit Wednesday demanding that the Ak-Chin tribe recognize their marriage. Local and national advocates say it may be the first such lawsuit in the country.

Some of Arizona's tribes, including the Navajo Nation, are following laws they passed before the ruling that define marriage as a union between a man and a woman. Others, including the Gila River Indian Community, have passed new laws that refuse to recognize same-sex marriages in response to the federal court rulings.

Pablo said she felt she had to move from the reservation because under tribal law she and Roy-Pablo would be illegally co-habitating if they were to stay in tribal housing. She said it is illegal under tribal law for unrelated, unmarried adults to live together. Since their marriage isn't recognized, they are considered unrelated.

As a probation officer for the tribal courts, Pablo said it is important to her to follow the law, even if she doesn't agree with it.

Pablo said her employer, the tribe, also refused to allow her to add her new wife and her wife's two children to her insurance. Pablo's son is on her insurance already.

The soft-spoken mother said she never intended to pick a fight with her tribe's leaders.

"I had a home with the tribe, and that's important to me. That's who I am and where I come from," she said. "I'm not trying to be a person of change. I just wanted to marry my wife and take care of my family."

She said she "was as shocked as everybody else" when last fall the U.S. Court of Appeals for the 9th Circuit ruled that Arizona had to allow same-sex couples to marry. A few days later, on their 10th anniversary together, Pablo proposed. They began to plan where they would live and research who had the better health insurance.

"We fell in love and started blending our families together," she said. "I thought it would be easy because we were in Arizona. Then we were thrust into tribal sovereignty."

She said the Ak-Chin tribal law and order code recognizes only marriage between a man and a woman.

"I felt like I was given no choice. I couldn't marry the person who makes me happy and live in the place that makes me happy," she said. "I had to choose between love and my home. I had to move."

Ak-Chin tribal leaders did not respond to Pablo's official letter in June asking that her marriage be recognized and threatening legal action. When asked why the tribe is not recognizing the marriages of same-sex couples, attorney William Strickland, whose firm is the tribe's general counsel, said the issue goes far beyond marriage.

"This is a matter for the tribe, not only the Ak-Chin but each tribe, to decide, and not the Supreme Court," he said. "It's about the inherent right of tribes to regulate domestic relations within their reserved lands."

'This is my community and I don't want people to feel like I'm a troublemaker'

The impacts, Pablo said, are significant. By living off the reservation, she can't run for tribal council and loses a tax exemption on her tribal salary.

She said keeping Roy-Pablo, a public-high-school guidance counselor, and her two children on the school's insurance costs the family several times more than if the couple and all three children were on Pablo's insurance.

Pablo's son is separated from his large extended family on the reservation, and Pablo and her son have to travel farther to access tribal health-care services.

Strickland confirmed that tribal law doesn't recognize the marriages of same-sex couples. But he said the tribe did not force Pablo from her tribal home.

"Housing policies say you need to adhere to the laws of the tribe, and if you don't, it's possible your lease may be terminated," he said. "But that had not happened with Ms. Pablo. She decided to get out. No action had been taken by the tribe."

Pablo said she had spoken with several tribal-council members in hopes of persuading them to change the code before moving forward with a lawsuit.

"I have reached out so many times to give them an idea of what things are like for me," she said. "They keep giving me the excuse of, 'We're thinking about it.' But every day they think about it is life-changing for me."

She said she's tried not to take it personally, but in a tribe of about 1,000 members, everything is personal.

She keeps a small box in her office with all of her personal effects in it. She fears she will be fired for taking this stand.

"I feel like a bad person for doing this. This is my community and I don't want people to feel like I'm a troublemaker," she said. "But how much more can I keep begging for something I feel like I deserve? I'm asking for the right to have the same thing every married couple has."

A different approach on the Navajo Reservation

On the Navajo Reservation, Alray Nelson, 29, and his partner, Brennen Yonnie, have been trying a different approach.

In 2013, they founded the Coalition for Navajo Equality. The goal is to persuade Navajo leaders to overturn a 2005 law defining marriage as only between a man and a woman. Before then, Nelson said, same-sex couples were accepted as common-law spouses.

"We've been visiting our local chapter houses, testifying to Navajo government about how this law directly discriminates against gay and lesbian couples," Nelson said. "We believe that marriage in Navajo shouldn't have a definition because marriage is a very private thing."

Nelson said they have spread their message, but have not yet succeeded at getting the law overturned. He said he hopes the council will introduce legislation within the next few months.

"There are 24 members on the council, and we need 16 to repeal the law," he said. "I'd say right now we have at least eight council delegates on our side."

Nelson said it has been frustrating to watch the nation celebrate the legalization of marriage for same-sex couples and move on to other battles while tribal members are left behind.

"The gay movement has kind of shifted now, saying we have a huge victory with marriage nationwide," he said. "It seems like native people in this country were forgotten again. It's kind of like our issues don't matter, even to the gay movement."

There hasn't been an organized flood of lawsuits against tribal laws like activists deployed in every state before the Supreme Court weighed in.

"There are 567 sovereign nations in the U.S. right now, and a majority of them have this unanswered question," Nelson said.

'Sovereignty ... has become the oppressor'

Tribal sovereignty creates a unique legal challenge for these couples.

Strickland, the attorney, said he doesn't see this as a fight over the rights of same-sex couples but rather a fight to preserve tribal sovereignty.

He said the Ak-Chin would assert the same position if it had enacted a law permitting same-sex couples to marry and the Supreme Court had ruled such marriages were invalid. "Tribes, all tribes, need to make a stand," he said.

Sovereignty, Pablo said, has become a double-edged sword.

"I respect the idea of sovereignty. Sovereignty was created to keep the tribes intact," she said. "But somewhere along the way, it has become the oppressor of tribal members' civil liberties."

Nelson said if he can't get the Navajo council to reverse its law, he also will move forward with a lawsuit. But, like Pablo, he also struggles with going that route.

"The Diné Marriage Act is a Navajo issue, and the federal government and the Supreme Court have no say in that," he said. "We want to protect Navajo sovereignty."

But Nelson said the issue is vital to tribal youth.

"Our work is not done until we repeal that law," he said. "That sends a message ... to the gay youth that their home on the Navajo Nation is a safe, supportive and inclusive home."

Rebecca Tsosie, a regents professor of law at the Sandra Day O'Connor College of Law at Arizona State University, teaches in the area of federal Indian law. She said there are numerous hurdles to suing a tribal government.

First, she said, sovereign immunity protects tribal governments when they are acting under their own governmental powers, and the tribal government must waive its immunity in order to be sued.

"And then suppose you got through that, then the question is going to be does a tribal government have to recognize a same-sex marriage," Tsosie said. "They don't as a matter of constitutional law because they are not parties to the U.S. Constitution. So then is there anything in the Indian Civil Rights Act that would mandate a similar rule?"

And third, she said, tribal governments may limit benefits to members of the tribe and have the right to exclude non-members from tribal trust lands or tribal benefits. Pablo's wife is not a tribal member.

Pablo said she knows it's an uphill battle. But she said she's willing to try. With the help of attorney Sonia Martinez, she is persuing her lawsuit through Ak-Chin tribal court.

If they lose, they can appeal to the Southwest Intertribal Court of Appeals in New Mexico. The ruling from that court is the final word in tribal cases, and any ruling applies only to the Ak-Chin community.

Martinez, a member of the Pasqua Yaqui tribe, said she understands the struggle over issues of sovereignty.

"Most tribes don't want the federal government to tell them what to do," she said. "But the tribes should be able to recognize same-sex marriage because it's the right thing to do, not because the feds are forcing you to recognize it."

But when they fail to change the law themselves, she said, legal action is the only remedy.

"My client doesn't necessarily believe in tribal sovereignty when the tribes are trampling all over basic human civil rights," she said.