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The Onondaga Nation And The Haudenosaunee Against The United States Of America

The Onondaga Nation And The Haudenosaunee Confederacy Supplemental Submission Brief On The Merits

The first underlying colonial doctrine of federal Indian law is referred to as the “Doctrine of Discovery” by which the territories long occupied by “Indian” nations and peoples, including the Onondaga and the Confederacy, are legally deemed to be terra nullius, vacant lands open for taking, exploitation, and occupation by the first imperial European Christian nation to “discover” them.8 Chief Justice Marshall held: “So far as respected the authority of the crown, no distinction was taken between vacant lands and lands occupied by the Indians.”9 He rested his decision upon White, European cultural, and Christian supremacy: “the character and religion of its inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendency.”10 In reaching this legal fiction, Justice Marshall reasoned that indigenous peoples did not claim, own, their lands under European property law because of their customary law of a spiritual, familial, relationship and belief that no one could “own” the earth.11 According to Marshall, legal title to land was acquired by cultivation, a European property law concept foreign to Indians. Rather, the Indians “held their respective lands and territories each in common, …there being among them no separate property in the soil.” Justice Marshall further opined that Indians, as “uncivilized” “savages” and “heathens” (non-Christians), were required to give way and relinquish their lands to the superior race, civilization, culture, and religion of the imperial nations of Europe.

Read the full brief


Joseph J. Heath, "Inter-American Commission On Human Rights Of The Organization Of American States Case No. P-624-14," Doctrine of Discovery Project (28 December 2023), https://doctrineofdiscovery.org/blog/petitioners-merits-brief/.

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