Time immemorial
Template:Short description Template:Use dmy dates Template:Use British English Time immemorial (Template:Langx) is a phrase meaning time extending beyond the reach of memory, record, or tradition, indefinitely ancient, "ancient beyond memory or record".<ref>Oxford English Dictionary (1971 ed.), Vol. I, p. 63c</ref> The phrase is used in legally significant contexts as well as in common parlance.
In lawEdit
In law, time immemorial denotes "a period of time beyond which legal memory cannot go", and "time out of mind".<ref>Time Immemorial, Black's Law Dictionary (11th ed. 2019).</ref> 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.<ref name=":0" /><ref name=":5" /><ref name=":6" />
English and American common lawEdit
"Time immemorial" is frequently used to describe the time required for a custom to mature into common law.<ref name=":0">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).</ref> Medieval historian Richard Barber describes this as "the watershed between a primarily oral culture and a world where writing was paramount".<ref>Template:Citation</ref> Common law is a body of law identified by judges in judicial proceedings, rather than created by the legislature.<ref name=":7">James Apple, "A Primer on the Civil-Law System" fjc.gov. Retrieved 18 May 2022.</ref> Judges determine the common law by pinpointing the legal principles consistently reiterated in previous legal cases over a long period of time.<ref name=":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 English common law.<ref name=":0" /> As 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.<ref name=":0" /> In English law, "time immemorial" has also been used to specify the time required to establish a prescriptive right.<ref name=":8">"Prescription Act 1832", legislation.gov.uk. Retrieved 18 May 2022.</ref> 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.<ref name=":8" />
American law inherited the English common law tradition.<ref name=":0" /> 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.<ref>Robert N. Wilentz, "Judicial Legitimacy – Judith and Marc Joseph Lecture", 49 Rutgers L. Rev. 859, 875 (1997).</ref> In Knowles v. Dow, a New Hampshire court found that a regular usage for twenty years, unexplained and uncontradicted, is sufficient to warrant a jury in finding the existence of an immemorial custom.<ref>Knowles v. Dow, 22 N.H. 387, 409 (1851).</ref> More often than not, however, American courts identify common law without any reference to the phrase "time immemorial".<ref>Kimple v. Schafer, 143 N.W. 505, 507 (Iowa 161 659/).</ref>
US federal Indian lawEdit
Water rightsEdit
"Time Immemorial" is sometimes used to describe the priority date of water rights holders.<ref name=":1" /> In the western United States, water rights are administered under the doctrine of prior appropriation.<ref name=":5">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.</ref> Under prior appropriation, water rights are acquired by making a beneficial use of water.<ref name=":9">{{#invoke:citation/CS1|citation |CitationClass=web }}</ref> 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.<ref name=":9" /> 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.<ref>Winters v. U.S., 207 U.S. 564, 567–578 (1908).</ref> 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.<ref name=":1">U.S. v. Adair, 723 F.2d 1394, 1414 (9th Cir. 1983).</ref> 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 over a thousand uninterrupted years prior to entering a treaty with the United States in 1864.<ref name=":1" />
Aboriginal titleEdit
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,<ref name=":6">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).</ref> plaintiff tribes and courts sometimes describe their occupancy as dating back to "time immemorial".<ref>Narragansett Tribe of Indians v. Southern Rhode Island Land Development Corp., 89 F.3d 908, 914 (1st Cir. 1996).</ref>
Oral tradition evidenceEdit
Historically, American judges lacked confidence in the use of Native American oral traditional evidence, oral histories shared between past and present generations, in court.<ref name=":4">Rachel Awan, "Native American Oral Traditional Evidence in American Courts: Reliable Evidence or Useless Myth?", 118 Dick. L. Rev. 697, 711 (2014).</ref> Since the Pueblo de Zia decision of the United States Court of Federal Claims in 1964, oral traditional evidence has received increased judicial endorsement.<ref name=":4" /> 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".<ref name=":2">Pueblo de Zia v. U.S., 165 Ct. Cl. 501, 504 (1964).</ref>
See alsoEdit
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ReferencesEdit
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