Onondaga Nation Land Rights and the Doctrine of Discovery
by Joe Heath

Joe Heath speaking about “The Onondaga Nation and the U.S. Courts” as part of the series Onondaga Land Rights and Our Common Future. July 11, 2006 at Syracuse Stage. Photo: Wendy Harris

All United States Indian law is founded on a very old and racist concept - the "doctrine of discovery." This doctrine was created by the European imperial nations as soon as Columbus landed and has continued, after its acceptance by the Supreme Court in 1823, right up through today.

This Euro-centric doctrine, as set forth by the Pope in the Papal Bull of 1493, was based upon the assumption of Christian superiority. The edict claimed that since the Natives were not Christian, they were "savages," and therefore less than human and not entitled to hold title to their own lands. The European sovereigns assumed title to all the land, leaving the indigenous peoples with only an "occupancy" right, which could be transferred only to the discovering sovereign. By fiat, the Natives were involuntarily converted into tenants on their aboriginal lands.

The vast wealth of all of the land on these "discovered" continents was thereby transferred to the rulers of the European countries, who controlled who could buy this land from them and at what price. This sale of the stolen Native lands was the fundamental source of wealth in the "new world."

This stealing and selling continued with the creation of the United States. Many of the men traditionally viewed as the founders of this country - Washington, Jefferson, Adams, etc. - were land speculators, who made fortunes by investing in Native lands west of the original colonies, which were then sold to settlers at enormous profits. Land speculation was also a source of revenue for the newly formed states. New York State quickly sold the Onondaga land purchased in 1788 for a fraction of its value, and in knowing violation of federal law, treaties and the Constitution, for five times the amount paid for it.

Shortly after ratifying the US Constitution in July 1788, New York furiously worked to grab vast areas of Haudenosaunee lands, because then Governor George Clinton knew that the state could not take Native lands once the Constitution went into effect. In its September 1788 "agreement" to take millions of acres of Onondaga ancestral territory, New York failed to even comply with its own laws. Subsequently, in 1793, 1795, 1817 and 1822, New York continued to grab Onondaga lands, even though the state had been repeatedly warned by federal officials that such takings violated laws (the Trade and Intercourse Acts), federal treaties (such as the 1794 Treaty of Canandaigua), and the Constitution.
In 1823, in Johnson v. McIntosh, another land speculator, Chief Justice John Marshall ruled that the "doctrine of discovery" was a fundamental basis for United States Indian law.

It is shocking that this medieval "doctrine of discovery" is still an integral basis of current federal Indian law. It is the foundation for the two recent, extremely negative federal court rulings which have been handed down in Haudenosaunee land rights cases. The first was the City of Sherrill v. Oneida Indian Nation, which the Supreme Court issued on March 29, 2005. The second case was the 2nd Circuit's dismissal of the Cayuga Nation's land claim on June 28, 2005, a dismissal that was recently allowed to stand by the Supreme Court when it refused to hear the appeal. The "doctrine of discovery" is referenced in the first footnote in Sherrill.

Both of these cases also relied incorrectly upon the defense of laches, which essentially means that a party has waited too long to bring any lawsuit. If the law had been fairly applied, New York State would not have been allowed to use the laches defense. In order to claim an injury due to an unfair delay in filing an action, the defendant (in this case, New York State) must not have broken the law; however, it is clearly established that New York knowingly broke federal law. Another reason for disallowing the laches defense is that there had been no delay; Haudenosaunee leaders made early and repeated efforts to get their lands back, but US courts were not open to the Indian Nations until late in the 20th century.

The Sherrill decision will eventually be seen as the Dred Scott case of Indian law. As our society moves ahead with healing and a deeper commitment to fairness towards the Native Americans, Sherrill will be overturned. It is time for truth and reconciliation, time for the dominant culture to admit its
Onondaga Land Rights Update
On July 5 the stay on the action was lifted. The Onondagas expect New York State to request that the case be dismissed based on "laches," asserting that the Onondaga Nation waited too long to file their claim. The State has until August 15, 2006 to move to dismiss.

The Nation's lawyers will then respond to the motion by October 16, presenting historical evidence proving that the Nation did not delay in filing the LRA. The Nation's leaders and lawyers have been working with expert historians throughout the past year to gather the information necessary to prove that there was no delay.

The State must respond by November 15 after which Judge Lawrence E. Kahn will rule on the motion to dismiss.

crimes of genocide, scorched earth policies, ethnic cleansing and land theft from the Native American nations, whose cultures and governments had been in place for centuries prior to the European invasion.

State leaders need to face up to their ugly history of knowingly taking Haudenosaunee lands in violation of federal laws and treaties, and the Constitution. Once they and we do that, perhaps we can then move ahead towards true healing among all of the people of Central New York.

Today, if some bullying imperialist country were to announce that it was entitled to the lands of some other country, because of "discovery" by a "superior" religion and culture, such a claim would be in obvious violation of international law. Under the leadership of the Haudenosaunee and other indigenous peoples, there is a determined effort to have the Vatican rescind the Papal Bulls, which are the "moral" foundation of the "doctrine of discovery." I urge you to consider joining this movement.




Joe is General Counsel for the Onondaga Nation.