Lawsuit questions U.S. Indian law

March 1st, 2008

Onondaga Nation land suit reveals racism in treatment of Indians 

By Byard Duncan

Ada Jacques can talk. I’ve seen it. She has no trouble stringing words together, conveying her ideas, or even cracking the occasional joke. The stories she tells often jump capriciously from topic to topic and can seamlessly stretch minutes into hours. When she laughs, the sly crinkles of skin that shoot from the corner of each almond eye tighten, and her hands—cracked and strong from years of shaping clay—tap cheerily on her kitchen table.

She can walk, too. She’s 79, and though her gait may be a bit more measured now than it was in her youthful days on the softball field, it still exudes a quiet confidence. She floats briskly about her house without clutching banisters or leaning on a cane.
Ada, a member of the Onondaga Nation—the Iroquois Confederacy’s sovereign capital, located a few miles south of Syracuse, N.Y.—seems to have all the makings of a human being: she lives in a house, walks, talks, makes coffee, goes to church; yet, according to the State of New York, her status as such is just the opposite. To them, Ada Jacques is not actually a person.  
Legally speaking, she never was.
“What people think of us and what they know of us—they’re not right,” Ada says. “Who’s the enemy here?”

Her question is a good one, and perhaps requires a slice of history for its answer. We’ll start in 1452, when Pope Nicholas V issued a decree to Portugal’s King Alfonso V that nakedly endorsed the colonization and erasure of the earth’s non-Christian civilizations. The decree stipulated that “champions of the Christian faith” had the right to enslave all non-Christians.

Centuries later, this papal law served as the intellectual basis for the U.S. Supreme Court’s 1823 Johnson v. McIntosh case. The decision, in which Justice John Marshall affirmed that “the tribes inhabiting this country were fierce savages whose occupation was war,” and went on to claim that “[leaving] them in possession of their country, was to leave the country a wilderness,” scorched the so-called ‘Doctrine of Discovery’ into the pages of American law. Because they were not Christians, American Indians lost all their land ownership rights to white ‘discoverers.’ They became, in legal terms, no different than trees or rocks: mute chunks of conquerable, “unoccupied territory.”

And they stayed that way. While detailed elucidations of what the Doctrine of Discovery exactly entailed were rarely uttered within the polished marble confines of American courtrooms, its main assumption—that Americans Indians forfeited their rights to land and human decency the second a Christian’s boot broke their sand—remained the basis of Indian law.

In fact, the first footnote of the Supreme Court’s City of Sherrill v. Oneida Indian Nation of N.Y. ruling refers to the doctrine directly. Worded with a meticulous detachment as arrogant as it is frightening, it reads, “fee title to the lands occupied by Indians when the colonists arrived became vested in the sovereign—first the discovering European nation, and later the original states and the United States.” American Indians, it implies—despite their ability to press charges against New York State—were still less than human. That was March 29, 2005, less than three years ago. This particular slice of history, it seems, is not history at all.

“Our treatment of natives in this country is profoundly racist and embarrassing,” says Joe Heath, an attorney representing the Onondaga Nation in its current land rights lawsuit against the State of New York. “There’s no shame. Indians are not going to get fairness in our courts.”

Heath has represented Iroquois nations for over 20 years. He adds that any serious consideration of the Doctrine of Discovery’s legal implications by the State would devastate its economic interests. It would essentially mean giving back everything that was taken.

“If we really undid the Doctrine of Discovery, it would be very problematic for our whole property structure,” he says. “Law isn’t about justice. It’s about the preservation of power.”

On October 11, 2007, Heath, along with Robert “Timothy” Coulter, brought the Onondagas’ land rights case before a federal court in Albany. Surrounded by a roomful of over 100 Onondagas—only four people had appeared in support of the State—Coulter called for a declaratory judgment that New York’s original purchase of Onondaga territory 212 years ago had violated federal law.

The case remains pending, but like those of the Oneida case, its main counterarguments have their basis in the Doctrine of Discovery. David Roberts, an attorney for the State of New York, expressed deep concern over discussing the doctrine’s legitimacy.

“The thing that’s strange about [the Onondaga case], is that it turns the ancient Doctrine of Discovery on its head,” he said in court. “As the court fully knows, the Doctrine of Discovery would hold that the crown holds fee title to the land in the country that’s being colonized, and that remains subject to the possessory aboriginal right of the natives that live there.”

In 2007—a full 555 years after Nicholas V’s decree—it seemed little had changed. The sighs and shuffles of the Onondagas sitting behind Roberts might as well have been silent; the courtroom might as well have been empty.

The Doctrine of Discovery may be the biggest ‘elephant in the room’ the U.S. legal system has had to justify in recent years. But for both American Indians and historians, it is far worse: more like the repugnant, festering carcass of one that should have been chopped up and hauled out years ago.

“We don’t deal with the realities of this situation,” says Robert Venables, a retired professor of Native American Studies at Cornell University. “If [we still] believe in the right of discovery, then Santa Claus and the Easter Bunny are right around the corner!”
But the doctrine is not some sort of benign fairy tale. It’s a nightmare that refuses to disappear.

Ada’s daughter Freida Jacques, a parent liaison for Onondaga’s Nation School, says many people have no grasp whatsoever on the doctrine’s implications. According to her, a close investigation of its actual meanings and assumptions might be the key to bringing about a sense of cultural understanding.

“We would know,” she says, “That people know, and that’s a big step. A lot of stuff just isn’t brought out, and it’s not brought out because a lot of people don’t want to feel responsible for what went on.”

That discussion, however, is not top priority for the State Attorney General’s office.
“By and large, when things are litigated, we’ll let the legal papers speak for themselves,” said Christine Pritchard, a representative.

Let us return to Ada, who has experienced the racist sting of the doctrine’s assumptions firsthand. She told me that years ago, a man she had never met pulled into her driveway, exited his truck, and began to spit unprovoked, racially charged insults at her.
“He said ‘did you know I could take your land and your property and there’s nothing you could do about it?’” she recalls. “I picked up a stone—I had played softball for about four years…I said, I think you better just get back in your car, [but] he just kept on talking.”

So she hurled it toward him, missing his skull by a finger’s length. She continued to throw rocks until he retreated to his truck. He peeled out of her driveway, kicking loose dirt and stones in her direction, etching swirling scars into her property. She never saw him again.

“If you go down the street, everybody has stories of this sort,” Ada continues, pointing down the dusky stretch of Nation road that meanders away from her small house.
“We were never the enemies of the United States,” she sighs. “We were just in the way of their ambitions.”

Ada’s slender frame barely pushes past the five-foot mark, and the violet sweatshirt she wore when we talked seemed bunchy and oversized. She is not a tall woman; she’s not even close.

But she is human.
Byard Duncan is a junior politics and journalism major. Email him at bduncan1[at]

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