Time immemorial

Last updated

Time immemorial (Latin : Ab immemorabili) is a phrase meaning time extending beyond the reach of memory, record, or tradition, indefinitely ancient, "ancient beyond memory or record". [1] The phrase is used in legally significant contexts as well as in common parlance.

Contents

In law

In law, time immemorial denotes "a period of time beyond which legal memory cannot go," and "time out of mind." [2] Most frequently, the phrase "time immemorial" appears as a legal term of art in judicial discussion of common law development and, in the United States, the property rights of Native Americans. [3] [4] [5]

English and American Common Law

"Time immemorial" is frequently used to describe the time required for a custom to mature into common law. [3] Medieval historian Richard Barber describes this as "the watershed between a primarily oral culture and a world where writing was paramount". [6] Common law is a body of law identified by judges in judicial proceedings, rather than created by the legislature. [7] Judges determine the common law by pinpointing the legal principles consistently reiterated in previous legal cases over a long period of time. [7]

In English law, time immemorial ends and legal memory begins at 1189, the end of the reign of King Henry II, who is associated with the invention of the English common law. [3] Because common law is found to have a non-historical, "immemorial" advent, it is distinct from laws created by monarchs or legislative bodies on a fixed date. [3] In English law, "time immemorial" has also been used to specify the time required to establish a prescriptive right. [8] The Prescription Act 1832, which noted that the full expression was "time immemorial, or time whereof the memory of man runneth not to the contrary," replaced the burden of proving "time immemorial" for the enjoyment of particular land rights with statutory fixed time periods of up to 60 years. [8]

American law inherited the English common law tradition. [3] Unlike English law, American law does not set "time immemorial," and American courts vary in their demands to establish "immemoriality" for the purposes of common law. [9] In Knowles v. Dow, a New Hampshire court found that 20 years suffices to demonstrate a legal custom dating back to "time immemorial." [10] More often than not, however, American courts identify common law without any reference to the phrase "time immemorial." [11]

Usage in United States Federal Indian Law

Water rights

"Time Immemorial" is sometimes used to describe the priority date of water rights holders. [12] In the western United States, water rights are administered under the doctrine of prior appropriation. [4] Under prior appropriation, water rights are acquired by making a beneficial use of water. [13] Water rights that are acquired earlier are senior, and have priority over later, junior water rights during water shortages due to drought or over-appropriation. [13] Generally, the priority date of water rights held by Native American tribes, also called Winters rights, is the date the tribe's reservation was established. [14] However, courts occasionally find that the tribe's water rights carry a "time immemorial" priority date, the most senior date conceivable, for aboriginal uses of water on reserved land that overlaps with the tribe's aboriginal land. [12] For example, in U.S. v. Adair, the court reasoned that the Klamath Tribe necessarily had water rights with a priority date of "time immemorial" because they had lived and used the waters in Central Oregon and Northern California for more than a thousand uninterrupted years prior to entering a treaty with the United States in 1864. [12]

Aboriginal title

When claiming or finding aboriginal title, the land rights Native Americans possess over the lands they have continuously and exclusively occupied for a long time prior to the intrusion of other occupants, [5] plaintiff tribes and courts sometimes describe their occupancy as dating back to "time immemorial." [15]

Oral tradition evidence

Historically, American judges lacked confidence in the use of Native American oral traditional evidence, oral histories shared between past and present generations, in court. [16] Since the Pueblo de Zia decision of the United States Court of Federal Claims in 1964, oral traditional evidence has received increased judicial endorsement. [16] In affirming the use of Native American oral traditional evidence to establish title to land, the Pueblo de Zia court described the testimony as having been handed down between tribal council members from "time immemorial." [17]

See also

Related Research Articles

In property law, title is an intangible construct representing a bundle of rights in (to) a piece of property in which a party may own either a legal interest or equitable interest. The rights in the bundle may be separated and held by different parties. It may also refer to a formal document, such as a deed, that serves as evidence of ownership. Conveyance of the document may be required in order to transfer ownership in the property to another person. Title is distinct from possession, a right that often accompanies ownership but is not necessarily sufficient to prove it. In many cases, possession and title may each be transferred independently of the other. For real property, land registration and recording provide public notice of ownership information.

<span class="mw-page-title-main">Tribal sovereignty in the United States</span> Type of political status of Native Americans

Tribal sovereignty in the United States is the concept of the inherent authority of indigenous tribes to govern themselves within the borders of the United States.

Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978), is a United States Supreme Court case deciding that Indian tribal courts have no criminal jurisdiction over non-Indians. The case was decided on March 6, 1978 with a 6–2 majority. The court opinion was written by William Rehnquist, and a dissenting opinion was written by Thurgood Marshall, who was joined by Chief Justice Warren Burger. Justice William J. Brennan did not participate in the decision.

<span class="mw-page-title-main">Supreme Court of Hawaii</span> Highest court in the U.S. state of Hawaii

The Supreme Court of Hawaii is the highest court of the State of Hawaii in the United States. Its decisions are binding on all other courts of the Hawaii State Judiciary. The principal purpose of the Supreme Court is to review the decisions of the trial courts in which appeals have been granted. Appeals are decided by the members of the Supreme Court based on written records and in some cases may grant oral arguments in the main Supreme Court chamber. Like its mainland United States counterparts, the Supreme Court does not take evidence and uses only evidence provided in previous trials.

The Nonintercourse Act is the collective name given to six statutes passed by the Congress in 1790, 1793, 1796, 1799, 1802, and 1834 to set Amerindian boundaries of reservations. The various Acts were also intended to regulate commerce between settlers and the natives. The most notable provisions of the Act regulate the inalienability of aboriginal title in the United States, a continuing source of litigation for almost 200 years. The prohibition on purchases of Indian lands without the approval of the federal government has its origins in the Royal Proclamation of 1763 and the Confederation Congress Proclamation of 1783.

In the American legal system, prior appropriation water rights is the doctrine that the first person to take a quantity of water from a water source for "beneficial use" has the right to continue to use that quantity of water for that purpose. Subsequent users can take the remaining water for their own use if they do not impinge on the rights of previous users.

Water right in water law is the right of a user to use water from a water source, e.g., a river, stream, pond or source of groundwater. In areas with plentiful water and few users, such systems are generally not complicated or contentious. In other areas, especially arid areas where irrigation is practiced, such systems are often the source of conflict, both legal and physical. Some systems treat surface water and ground water in the same manner, while others use different principles for each.

<span class="mw-page-title-main">Zia people (New Mexico)</span> Indigenous tribe of Puebloan peoples centered in New Mexico

The Zia or Tsʾíiyʾamʾé are an indigenous nation centered at Zia Pueblo (Tsi'ya), a Native American reservation in the U.S. state of New Mexico. The Zia are known for their pottery and use of the sun symbol. They are one of the Keres Pueblo peoples and speak the Eastern Keres language.

Johnson v. McIntosh, 21 U.S. 543 (1823), also written M‘Intosh, is a landmark decision of the U.S. Supreme Court that held that private citizens could not purchase lands from Native Americans. As the facts were recited by Chief Justice John Marshall, the successor in interest to a private purchase from the Piankeshaw attempted to maintain an action of ejectment against the holder of a federal land patent.

<span class="mw-page-title-main">American Indian Religious Freedom Act</span> United States Law protecting Native Americans religious practices

The American Indian Religious Freedom Act, Public Law No. 95–341, 92 Stat. 469, codified at 42 U.S.C. § 1996, is a United States federal law, enacted by joint resolution of the Congress in 1978. Prior to the act, many aspects of Native American religions and sacred ceremonies had been prohibited by law.

Water trading is the process of buying and selling water access entitlements, also often called water rights. The terms of the trade can be either permanent or temporary, depending on the legal status of the water rights. Some of the western states of the United States, Chile, South Africa, Australia, Iran and Spain's Canary Islands have water trading schemes. Some consider Australia's to be the most sophisticated and effective in the world. Some other countries, especially in South Asia, also have informal water trading schemes. Water markets tend to be local and informal, as opposed to more formal schemes.

<span class="mw-page-title-main">Indian Child Welfare Act</span> 1978 U.S. federal law regulating tribal jurisdiction over court cases involving children

The Indian Child Welfare Act of 1978 is a United States federal law that governs jurisdiction over the removal of American Indian children from their families in custody, foster care and adoption cases.

Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978), was a landmark case in the area of federal Indian law involving issues of great importance to the meaning of tribal sovereignty in the contemporary United States. The Supreme Court sustained a law passed by the governing body of the Santa Clara Pueblo that explicitly discriminated on the basis of sex. In so doing, the Court advanced a theory of tribal sovereignty that weighed the interests of tribes sufficient to justify a law that, had it been passed by a state legislature or Congress, would have almost certainly been struck down as a violation of equal protection.

<span class="mw-page-title-main">Water law in the United States</span>

Water law in the United States refers to the Water resources law laws regulating water as a resource in the United States. Beyond issues common to all jurisdictions attempting to regulate water's uses, water law in the United States must contend with:

Bryan v. Itasca County, 426 U.S. 373 (1976), was a case in which the Supreme Court of the United States held that a state did not have the right to assess a tax on the property of a Native American (Indian) living on tribal land absent a specific Congressional grant of authority to do so.

Fellows v. Blacksmith, 60 U.S. 366 (1857), is a United States Supreme Court decision involving Native American law. John Blacksmith, a Tonawanda Seneca, sued agents of the Ogden Land Company for common law claims of trespass, assault, and battery after he was forcibly evicted from his sawmill by the Company's agents. The Court affirmed a judgement in Blacksmith's favor, notwithstanding the fact that the Seneca had executed an Indian removal treaty and the Company held the exclusive right to purchase to the land by virtue of an interstate compact ratified by Congress.

Aboriginal land title in New Mexico is unique among aboriginal title in the United States. Congressional legislation was passed to define such title after the United States acquired this territory following war with Mexico (1846-1848). But the Supreme Court of the New Mexico Territory and the United States Supreme Court held that the Nonintercourse Act did not restrict the alienability of Pueblo lands.

South African customary law refers to a usually uncodified legal system developed and practised by the indigenous communities of South Africa. Customary law has been defined as

an established system of immemorial rules evolved from the way of life and natural wants of the people, the general context of which was a matter of common knowledge, coupled with precedents applying to special cases, which were retained in the memories of the chief and his councilors, their sons and their sons' sons until forgotten, or until they became part of the immemorial rules.

<span class="mw-page-title-main">Oklahoma Organic Act</span> Statute used by the United States Congress

An Organic Act is a generic name for a statute used by the United States Congress to describe a territory, in anticipation of being admitted to the Union as a state. Because of Oklahoma's unique history an explanation of the Oklahoma Organic Act needs a historic perspective. In general, the Oklahoma Organic Act may be viewed as one of a series of legislative acts, from the time of Reconstruction, enacted by Congress in preparation for the creation of a united State of Oklahoma. The Organic Act created Oklahoma Territory, and Indian Territory that were Organized incorporated territories of the United States out of the old "unorganized" Indian Territory. The Oklahoma Organic Act was one of several acts whose intent was the assimilation of the tribes in Oklahoma and Indian Territories through the elimination of tribes' communal ownership of property.

Haaland v. Brackeen was a Supreme Court of the United States case brought by the states of Texas, Louisiana, and Indiana, and individual plaintiffs, that sought to declare the Indian Child Welfare Act (ICWA) unconstitutional. In addition to Haaland v. Brackeen, three additional cases were consolidated to be heard at the same time: Cherokee Nation v. Brackeen, Texas v. Haaland, and Brackeen v. Haaland.

References

  1. Oxford English Dictionary (1971 ed.), Vol. I, p. 63c
  2. Time Immemorial, Black’s Law Dictionary (11th ed. 2019).
  3. 1 2 3 4 5 Kunal M. Parker, "Law "In" and "As" History: The Common Law in the American Polity, 1790-1900," 1 UC Irvine L. Rev. 587, 594-600 (2011).
  4. 1 2 Jessica Lowrey, "Home Sweet Home: How the 'Purpose of the Reservation' Affects More than Just the Quantity of Indian Water Rights," 23 Colo. J. Int'l Envtl. L. & Pol'y 201, 206.
  5. 1 2 Daniel G. Kelly, Jr., "Indian Title: The Rights of American Natives in Lands They Have Occupied Since Time Immemorial," 75 Columbia L. Rev. 655, 656 (1975).
  6. Barber, Richard (2022), "Marlborough Castle in the Middle Ages", in Barber, Richard (ed.), The Marlborough Mound (1 ed.), Boydell and Brewer Limited, p. 62, doi:10.1017/9781787446748.005, ISBN   978-1-78744-674-8
  7. 1 2 James Apple, "A Primer on the Civil-Law System" fjc.gov. Retrieved 18 May 2022.
  8. 1 2 "Prescription Act 1832," legislation.gov.uk. Retrieved 18 May 2022.
  9. Robert N. Wilentz, "Judicial Legitimacy- Judith and Marc Joseph Lecture," 49 Rutgers L. Rev. 859, 875 (1997).
  10. Knowles v. Dow, 22 N.H. 387, 409 (1851).
  11. Kimple v. Schafer, 143 N.W. 505, 507 (Iowa 161 659/).
  12. 1 2 3 U.S. v. Adair, 723 F.2d 1394, 1414 (9th Cir. 1983).
  13. 1 2 "Prior appropriation doctrine". LII / Legal Information Institute. Retrieved 14 May 2022.
  14. Winters v. U.S., 207 U.S. 564, 567-578 (1908).
  15. Narragansett Tribe of Indians v. Southern Rhode Island Land Development Corp., 89 F.3d 908, 914 (1st Cir. 1996).
  16. 1 2 Rachel Awan, "Native American Oral Traditional Evidence in American Courts: Reliable Evidence or Useless Myth?," 118 Dick. L. Rev. 697, 711 (2014).
  17. Pueblo de Zia v. U.S., 165 Ct. Cl. 501, 504 (1964).