Time immemorial ( la, Ab immemorabili) is a phrase meaning time extending beyond the reach of
memory
Memory is the faculty of the mind by which data or information is encoded, stored, and retrieved when needed. It is the retention of information over time for the purpose of influencing future action. If past events could not be remembered, ...
,
record, or
tradition
A tradition is a belief or behavior (folk custom) passed down within a group or society with symbolic meaning or special significance with origins in the past. A component of cultural expressions and folklore, common examples include holidays or ...
,
indefinitely ancient
Ancient history is a time period from the History of writing, beginning of writing and recorded human history to as far as late antiquity. The span of recorded history is roughly 5,000 years, beginning with the Sumerian language, Sumerian c ...
, "ancient beyond memory or record". The phrase is used in legally significant contexts as well as in common parlance.
In law
In
law
Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. It has been vario ...
, time immemorial denotes "a period of time beyond which legal memory cannot go," and "time out of mind." Most frequently, the phrase "time immemorial" appears as a
legal term of art
Jargon is the specialized terminology associated with a particular field or area of activity. Jargon is normally employed in a particular communicative context and may not be well understood outside that context. The context is usually a particu ...
in judicial discussion of common law development and, in the United States, the property rights of Native Americans.
English and American Common Law
"Time immemorial" is frequently used to describe the time required for a custom to mature into
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
.
[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). Common law is a body of law identified by judges in judicial proceedings, rather than created by the legislature.
[James Apple,]
A Primer on the Civil-Law System
''fjc.gov''. Retrieved 18 May 2022. Judges determine the common law by pinpointing the legal principles consistently reiterated in
previous legal cases over a long period of time.
In English law, time immemorial ends and legal memory begins at 1189 A.D., the end of the reign of
King Henry II, who is associated with the invention of the English common law.
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.
In English law, "time immemorial" has also been used to specify the time required to establish a
prescriptive right.
[Prescription Act 1832]
" ''legislation.gov.uk.'' Retrieved 18 May 2022. The
Prescription Act 1832
The Prescription Act 1832c 71 is an Act of the Parliament of the United Kingdom concerning English land law, and particularly the method for acquiring an easement. It was passed on 1 August 1832.
History
Common law prescription assumed continuous ...
, 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.
American law inherited the English common law tradition.
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. In ''Knowles v. Dow,'' a New Hampshire court found that 20 years suffices to demonstrate a legal custom dating back to "time immemorial." More often than not, however, American courts identify common law without any reference to the phrase "time immemorial."
Usage in United States Federal Indian Law
Water rights
Water right in water law refers to 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 contentiou ...
"Time Immemorial" is sometimes used to describe the priority date of water rights holders.
In the western United States, water rights are administered under the
doctrine of prior appropriation.
[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. Under prior appropriation, water rights are acquired by making a beneficial use of water.
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.
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. 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.
[''U.S. v. Adair,'' 723 ]F.2d
The ''Federal Reporter'' () is a case law reporter in the United States that is published by West Publishing and a part of the National Reporter System. It begins with cases decided in 1880; pre-1880 cases were later retroactively compiled by W ...
br>1394, 1414
(9th Cir. 1983). 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.
Aboriginal title
Aboriginal title is a common law doctrine that the land rights of indigenous peoples to customary tenure persist after the assumption of sovereignty under settler colonialism. The requirements of proof for the recognition of aboriginal title, ...
"Aboriginal title" describes 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.
[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). When claiming or finding aboriginal title, plaintiff tribes and courts sometimes describe their occupancy as dating back to "time immemorial."
[''Narragansett Tribe of Indians v. Southern Rhode Island Land Development Corp.,'' 89 ]F.3d
The ''Federal Reporter'' () is a case law reporter in the United States that is published by West Publishing and a part of the National Reporter System. It begins with cases decided in 1880; pre-1880 cases were later retroactively compiled by We ...
br>908, 914
(1st Cir. 1996).
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.
[Rachel Awan,]
Native American Oral Traditional Evidence in American Courts: Reliable Evidence or Useless Myth?
" 118 Dick. L. Rev. 697, 711 (2014). Since the ''Pueblo de Zia'' decision of the
United States Court of Federal Claims
The United States Court of Federal Claims (in case citations, Fed. Cl. or C.F.C.) is a United States federal court that hears monetary claims against the U.S. government. It was established by statute in 1982 as the United States Claims Court, ...
in 1964, oral traditional evidence has received increased judicial endorsement.
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."
[''Pueblo de Zia v. U.S.,']
165 Ct. Cl. 501, 504
(1964).
See also
*
Acquiescence
In law, acquiescence occurs when a person knowingly stands by without raising any objection to the infringement of their rights, while someone else unknowingly and without malice aforethought acts in a manner inconsistent with their rights. As a ...
*
Dreamtime
The Dreaming, also referred to as Dreamtime, is a term devised by early anthropologists to refer to a religio-cultural worldview attributed to Australian Aboriginal mythology, Australian Aboriginal beliefs. It was originally used by Francis Ja ...
*
Legal fiction
A legal fiction is a fact assumed or created by courts, which is then used in order to help reach a decision or to apply a legal rule. The concept is used almost exclusively in common law jurisdictions, particularly in England and Wales.
Deve ...
*
Prehistory
Prehistory, also known as pre-literary history, is the period of human history between the use of the first stone tools by hominins 3.3 million years ago and the beginning of recorded history with the invention of writing systems. The use of ...
* ''
Uradel
(, German: "ancient nobility"; adjective or ) is a genealogical term introduced in late 18th-century Germany to distinguish those families whose noble rank can be traced to the 14th century or earlier. The word stands opposed to ''Briefadel'', ...
''
*
Usucaption
Usucaption ( la, usucapio), also known as ''acquisitive prescription'', is a concept found in civil law systems and has its origin in the Roman law of property.
Usucaption is a method by which ownership of property (i.e. title to the property) c ...
References
Common law legal terminology
English law
English legal terminology
Past
Time in government
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