Time immemorial () is a phrase meaning time extending beyond the reach of memory, Recorded history, or tradition, indefinitely ancient, "ancient beyond memory or record".[Oxford English Dictionary (1971 ed.), Vol. I, p. 63c] The phrase is used in legally significant contexts as well as in common parlance.
In law
In
law, time immemorial denotes "a period of time beyond which legal memory cannot go", and "time out of mind".
[ Time Immemorial, Black's Law Dictionary (11th ed. 2019).] 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.
English and American common law
"Time immemorial" is frequently used to describe the time required for a custom to mature into
common law.
[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).] Medieval historian
Richard Barber describes this as "the watershed between a primarily
Oral tradition and a world where writing was paramount".
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
Precedent over a long period of time.
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.[" Prescription Act 1832", legislation.gov.uk. Retrieved 18 May 2022.] 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.
American law inherited the English common law tradition.[Robert N. Wilentz, " Judicial Legitimacy – Judith and Marc Joseph Lecture", 49 Rutgers L. Rev. 859, 875 (1997).] 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.[ Knowles v. Dow, 22 N.H. 387, 409 (1851).] More often than not, however, American courts identify common law without any reference to the phrase "time immemorial".[ Kimple v. Schafer, 143 N.W. 505, 507 ( Iowa 161 659/).]
US federal Indian law
Water rights
"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.
[ Winters v. U.S., 207 U.S. 564, 567–578 (1908).] 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, Federal Reporter 1394, 1414 (9th Cir. 1983).] For example, in
U.S. v. Adair, the court reasoned that the
Klamath Tribes 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.
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,
[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).] 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., Federal Reporter 908, 914 (1st Cir. 1996).]
Oral tradition evidence
Historically, American judges lacked confidence in the use of Native American
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 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
