In another time he would have been honored. Instead he was murdered.
The above statement is from the PBS documentary Two Spirits, a film examining the life and tragic death of Fred Martinez, a sixteen- year-old Navajo Indian, born physically male, who identified as female. The documentary explores the circumstances that led to Martinez’s death while also more broadly discussing the treatment of gay, lesbian, and transgendered Navajo people. As the film notes, gender non-conformity was once an accepted part of Navajo culture. Traditionally, the Navajo recognized four genders: male, female, male-born persons living as female, and female-born persons living as male, and they held these dual-gender or “two spirit” people in high regard. The Navajo view of two-spirit people was not unique. Historically, many American Indian tribes honored their transgendered members, but by the nineteenth century, this tolerance began to disappear. European colonizers and their descendants viewed homosexuality as an intolerable sin, and they exerted increasing pressure on tribal communities to adopt similar views regarding family and sexuality. Eventually, this pressure led to a dramatic decline in tribal acceptance of homosexual and transgendered Indian people.
Today, many tribes are rejecting these colonially imposed beliefs regarding gender and homosexuality. For instance, a substantial number of tribes were at the forefront of the fight for marriage equality. These path-clearing tribes used their unique status as separate sovereigns to recognize same-sex marriages before, and sometimes in defiance of, the surrounding states. In a few instances, the marriage codes of these tribes even served as a model for subsequent state legalization. Similarly, many tribes are also rediscovering their “two-spirit” traditions. These tribes once again recognize the value of their transgender members, and their approach to gender and sexuality is increasingly proffered as a model of tolerance that LGBT advocates believe should be adopted by both Indian and non-Indian communities. Such changes are encouraging. Unfortunately, they are not universal. Two years after the Supreme Court’s decision in Obergefell v. Hodges, in which the Court found same-sex marriage bans unconstitutional, many tribes display little interest in accepting same-sex marriage or the two-spirit tradition.
Currently, a significant number of tribes still ban same-sex marriage. Prior to the Supreme Court’s Obergefell decision, this ban elicited little national notice. However, once the Court declared state marriage bans unconstitutional, tribal bans became the glaring exception to nationwide marriage equality. Tribes with same-sex marriage bans are now under increasing pressure to adopt the Supreme Court’s view of marriage equality and repeal their marriage bans. In most cases, these requests have been ignored.
Tribal marriage bans prevent thousands of native men and women from marrying their chosen partners. Moreover, the impact of these bans may extend far beyond individual couples. Historically, when tribal and Anglo-American values conflict, the result is an increased perception by non-Indians that tribes are backwards, inferior, and unjust, and this effect is particularly pronounced in instances where tribal law or custom reflect a position specifically and forcefully rejected by American law. Consequently, there is a real danger that the continuation of tribal same-sex marriage bans post-Obergefell will negatively affect how tribes and tribal justice are perceived. This perception could then become the catalyst for reversing many of the recent gains in tribal court jurisdiction.