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Aboriginal title is a common law doctrine that the land rights of indigenous peoples to customary land persist after the assumption of sovereignty to that land by another Colonization state. The requirements of proof for the recognition of aboriginal title, the content of aboriginal title, the methods of extinguishing aboriginal title, and the availability of compensation in the case of extinguishment vary significantly by jurisdiction. Nearly all jurisdictions are in agreement that aboriginal title is inalienable, and that it may be held either individually or collectively.
Aboriginal title is also referred to as indigenous title, native title (in Australia), original Indian title (in the United States), and customary title (in New Zealand). Aboriginal title jurisprudence is related to indigenous rights, influencing and influenced by non-land issues, such as whether the government owes a fiduciary duty to indigenous peoples. While the judge-made doctrine arises from customary international law, it has been codified nationally by legislation, treaties, and constitutions.
Aboriginal title was first acknowledged in the early 19th century, in decisions in which indigenous peoples were not a party. Significant aboriginal title litigation resulting in victories for indigenous peoples did not arise until recent decades. The majority of court cases have been litigated in Australia, Canada, Malaysia, New Zealand, and the United States. Aboriginal title is an important area of comparative law, with many cases being cited as persuasive authority across jurisdictions. Legislated Indigenous land rights often follow from the recognition of native title.
In 1608, the same year in which the Doctrine of Continuity emerged, The Case of Tanistry (1608) Davis 28 (conquest of Ireland).Witrong v. Blany (1674) 3 Keb. 401 (conquest of Wales). Edward Coke delivered a famous dictum in Calvin's Case (1608) that the laws of all non-Christians would be abrogated upon their conquest. Calvin's Case (1608) 77 E.R. 377, 397–98 (K.B.):
"All infidels are in law perpetui inimici, perpetual enemies (for the law presumes not that they will be converted, that being remota potentia, a remote possibility) for between them, as with the devils, whose subjects they be, and the Christian, there is perpetual hostility, and can be no peace; . . . And upon this ground there is a diversity between a conquest of a kingdom of a Christian King, and the conquest of a kingdom of an infidel; for if a King come to a Christian kingdom by conquest, . . . he may at his pleasure alter and change the laws of that kingdom: but until he doth make an alteration of those laws the ancient laws of that kingdom remain. But if a Christian King should conquer a kingdom of an infidel, and bring them under his subjection, there ipso facto the laws of the infidel are abrogated, for that they be not only against Christianity, but against the law of God and of nature, contained in the decalogue; and in that case, until certain laws be established amongst them, the King by himself, and such Judges as he shall appoint, shall judge them and their causes according to natural equity." Coke's view was not put into practice, but was rejected by Lord Mansfield in 1774.Campbell v. Hall (1774) Lofft 655. The two doctrines were reconciled, with the Doctrine of Continuity prevailing in nearly all situations (except, for example, public property of the predecessor state) in Oyekan v Adele (1957).Oyekan & Ors v Adele 1957 2 All ER 785 (Nigeria).
The first Indigenous land rights case under the common law, Mohegan Indians v. Connecticut, was litigated from 1705 to 1773, with the Privy Council affirming without opinion the judgement of a non-judicial tribunal.Mark Walters, "'Mohegan Indians v. Connecticut'(1705–1773) and the Legal Status of Aboriginal Customary Laws and Government in British North America" , 33 Osgoode Hall L.J. 4 (2007).For modern litigation over the same land, see Mohegan Tribe v. Connecticut, 483 F. Supp. 597 (D. Conn. 1980), aff'd, 638 F.2d 612 (2d Cir. 1980), cert. denied 452 U.S. 968, on remand, 528 F. Supp. 1359 (D. Conn. 1982). Other important Privy Council decisions include In re Southern Rhodesia (1919)In re Southern Rhodesia 1919 AC 211. rejected a claim for aboriginal title, writing that:
Some tribes are so low in the scale of social organization that their usages and conceptions of rights and duties are not to be reconciled with the institutions or the legal ideas of civilized society. Such a gulf cannot be bridged.In re Southern Rhodesia 1919 AC 211, 233–34.
Amodu Tijani v. Southern Nigeria (Secretary) (1921).Amodu Tijani v. Southern Nigeria (Secretary), 1921 2 AC 399. laid the basis for several elements of the modern aboriginal title doctrine, upholding a customary land claim and urging the need to "study of the history of the particular community and its usages in each case." Subsequently, the Privy Council issued many opinions confirming the existence of aboriginal title, and upholding customary land claims; many of these arose in African colonies.In chronological order: Sobhuza II v Miller 1926 AC 518 (Swaziland); Sunmonu v Disu Raphael (Deceased) 1927 AC 881 (Nigeria); Bakare Ajakaiye v Lieutenant Governor of the Southern Provinces 1929 AC 679 (Nigeria); Sakariyawo Oshodi v Moriamo Dakolo (4) 1930 AC 667 (Nigeria); Stool of Abinabina v. Chief Kojo Enyimadu (1953) AC 207 (West African Gold Coast); Nalukuya (Rata Taito) v Director of Lands 1957 AC 325 (Fiji); Adeyinka Oyekan v Musendiku Adele 19572 All ER 785 (West Africa). Modern decisions have heaped criticism upon the views expressed in Southern Rhodesia. Nyali v Attorney General 1956 1 QB 1 (Lord Denning).
It is common ground among the relevant jurisdictions that aboriginal title is inalienable, in the sense that it cannot be transferred except to the general government (known, in many of the relevant jurisdictions, as "the Crown")although Malaysia allows aboriginal title to be sold between indigenous peoples, unless contrary to customary law. Especially in Australia, the content of aboriginal title varies with the degree to which claimants are able to satisfy the standard of proof for recognition. In particular, the content of aboriginal title may be tied to the traditions and customs of the indigenous peoples, and only accommodate growth and change to a limited extent.
Jurisdictions differ on whether the state is required to pay compensation upon extinguishing aboriginal title. Theories for the payment of compensation include the right to property, as protected by constitutional or common law, and the breach of a fiduciary duty.
The High Court of Australia, after paving the way in Mabo No 1 by striking down a State statute under the Racial Discrimination Act 1975,. overruled Milirrpum in Mabo v Queensland (No 2) (1992).. Mabo No 2, rejecting terra nullius, held that native title exists (6–1) and is extinguishable by the sovereign (7–0), without compensation (4–3). In the wake of the decision, the Australian Parliament passed the Native Title Act 1993 (NTA),. codifying the doctrine and establishing the National Native Title Tribunal (NNTT). Western Australia v Commonwealth upheld the NTA and struck down a conflicting Western Australia statute..
In 1996, the High Court held that , which cover nearly half of Australia, do not extinguish native title in Wik Peoples v Queensland.. In response, Parliament passed the Native Title Amendment Act 1998 (the "Ten Point Plan"), extinguishing a variety of Aboriginal land rights and giving state governments the ability to follow suit.
Western Australia v Ward (2002) held that native title is a bundle of rights, which may be extinguished one by one, for example, by a mining lease. Yorta Yorta v Victoria (2002), an appeal from the first native title claim to go to trial since the Native Title Act, adopted strict requirements of continuity of traditional laws and customs for native title claims to succeed.
In 1996, the Toledo Maya Cultural Council (TMCC) and the Toledo Alcaldes Association (TAA) filed a claim against the government of Belize in the Belize Supreme Court, but the Court failed to act on the claim. Supreme Court Claims Nos. 171 and 172 of 2007 (Consolidated) re Maya land rights . The Maya peoples of the Toledo District filed a complaint with the Inter-American Commission on Human Rights (IACHR), which sided with the Maya in 2004 and stated that the failure of the government of Belize to demarcate and title the Maya cultural lands was a violation of the right to property in Article XXIII of the American Declaration.Inter-American Commission on Human Rights. 12 October 2004. Report Nº 40/04, Case 12.053, Merits, Maya Indigenous Communities of the Toledo District, Belize . In 2007, Chief Justice Abdulai Conteh ruled in favor of the Maya communities of Conejo and Santa Cruz, citing the IACHR judgement and key precedents from other common law jurisdictions. The government entered into negotiations with the Maya communities, but ultimately refused to enforce the judgement.
In 2008, The TMCC and TAA, and many individual alcaldes, filed a representative action on behalf of all the Maya communities of the Toledo District, and on 28 June 2010, CJ Conteh ruled in favor of the claimants, declaring that Maya customary land tenure exists in all the Maya villages of the Toledo District, and gives rise to collective and individual property rights under sections 3(d) and 17 of the Belize Constitution. Supreme Court Claim No. 366 of 2008 – The Maya Leaders Alliance and the Toledo Alcaldes et al v The Attorney General of Belize et al and Francis Johnston et al .
St. Catharines was more or less the prevailing law until Calder v. British Columbia (Attorney General) (1973). All seven of the judges in Calder agreed that the claimed Aboriginal title existed, and did not solely depend upon the Royal Proclamation of 1763. Calder v. British Columbia (Attorney General) (1973) 34 DRL (3d) 145. Six of the judges split 3–3 on the question of whether Aboriginal title had been extinguished. The Nisga'a did not prevail because the seventh justice, Pigeon J, found that the Court did not have jurisdiction to make a declaration in favour of the Nisga'a in the absence of a fiat of the Lieutenant-Governor of B.C. permitting suit against the provincial government.
Section 91(24) of the Constitution Act, 1867 ("British North America Act 1867") gives the federal government exclusive jurisdiction over First Nations, and thus the exclusive ability to extinguish Aboriginal title. Section Thirty-five of the Constitution Act, 1982 explicitly recognized and preserved aboriginal rights. R. v. Guerin (1982), the first Supreme Court of Canada decision handed down after the Constitution Act 1982, declared that Aboriginal title was sui generis and that the federal government has a fiduciary duty to preserve it. R. v. Guerin 1984 2 S.C.R. 335 (Wilson J.). R. v. Simon (1985) overruled R. v. Syliboy (1929) R. v. Syliboy 1929 1 D.L.R. 307 (Nova Scotia County Court). which had held that Aboriginal peoples had no capacity to enter into treaties, and thus that the Numbered Treaties were void. R. v. Simon 1985 2 S.C.R. 387. A variety of non-land rights cases, anchored on the Constitution Act 1982, have also been influential. R. v. Sparrow 1990 1 S.C.R. 1075. R. v. Adams (1996) 138 DLR (4th) 657. R. v. Van der Peet (1996) 137 DLR (4th) 289. R. v. Côté 1996 3 S.C.R. 139. R. v. Sappier 2006 2 S.C.R. 686. R. v. Morris 2006 2 S.C.R. 915.
Delgamuukw v. British Columbia (1997) laid down the essentials of the current test to prove Aboriginal title: "in order to make out a claim for Aboriginal title, the Aboriginal group asserting title must satisfy the following criteria: (i) the land must have been occupied prior to sovereignty, (ii) if present occupation is relied on as proof of occupation pre-sovereignty, there must be a continuity between present and pre-sovereignty occupation, and (iii) at sovereignty, that occupation must have been exclusive." Delgamuukw v. British Columbia 1997 153 D.L.R. (4th). Mitchell v. Canada 2001 1 S.C.R. 911.
"Stripped to essentials, an Aboriginal claimant must prove a modern practice, tradition or custom that has a reasonable degree of continuity with the practices, traditions or customs that existed prior to contact. The practice, custom or tradition must have been "integral to the distinctive culture" of the Aboriginal peoples, in the sense that it distinguished or characterized their traditional culture and lay at the core of the peoples' identity. It must be a "defining feature" of the Aboriginal society, such that the culture would be "fundamentally altered" without it. It must be a feature of "central significance" to the peoples' culture, one that "truly made the society what it was" (Van der Peet, supra, at paras. 54–59). This excludes practices, traditions and customs that are only marginal or incidental to the Aboriginal society's cultural identity, and emphasizes practices, traditions and customs that are vital to the life, culture and identity of the aboriginal society in question." (Paragraph 12) Tsilhqot'in Nation v. British Columbia, 2007 BCSC 1700. R. v. Marshall, 2005 SCC 43.Bartlett, R.. "The Content and Proof of Native Title: Delgamuukw v Queen in right of British Columbia", Indigenous Law Bulletin 19 (1998).Bartlett, R., "The Different Approach to Native Title in Canada," Australian Law Librarian 9(1): 32–41 (2001).
Subsequent decisions have drawn on the fiduciary duty to limit the ways in which the Crown can extinguish Aboriginal title, Osoyoos Indian Band v. Oliver (Town), 2001 SCC 85. and to require prior consultation where the government has knowledge of a credible, but yet unproven, claim to Aboriginal title. Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73. Mikisew Cree First Nation v. Canada (Minister of Canada Heritage), 2005 SCC 69.
In 2014 the Supreme Court ruled unanimously for the plaintiff in Tsilhqot'in Nation v. British Columbia. Rejecting the government's claim that Aboriginal title applied only to villages and fishing sites, it instead agreed with the First Nation that Aboriginal title extends to the entire traditional territory of an indigenous group, even if that group was semi-nomadic and did not create settlements on that territory. It also stated that governments must have consent from First Nations which hold Aboriginal title in order to approve developments on that land, and governments can override the First Nation's wishes only in exceptional circumstances. The court reaffirmed, however, that areas under Aboriginal title are not outside the jurisdiction of the provinces, and provincial law still applies.
In 2019, Japan fully recognised the Ainu people as the indigenous people of Japan and gave them some land rights if requested.
Malaysian court decisions from the 1950s on have held that customary lands were inalienable. Sumbang Anak Sekam v Engkarong Anak Ajah 1958 SCR 95. Sat Anak Akum & Anor v RAndong Anak Charanak Charereng 1958 SCR 104. Galau & Ors v Penghuluimang & Ors 1967 1 MLJ 192. Bisi ak Jinggot @ Hilarion Bisi ak Jenggut v Superintendent of Lands and Surveys Kuching Division & Ors 2008 4 MLJ 415. Sapiah binti Mahmud (F) v Superintendent of Lands and Surveys, Samarahan Division & 2 Ors 2009 MLJU 0410. In the 1970s, aboriginal rights were declared to be property rights, as protected by the Federal Constitution. Selangor Pilot Association v Government of Malaysia 1975 2 MLJ 66. Decisions in the 1970s and 1980s blocked state-sanctioned logging on customary land. Keruntum Sdn Bhd v. Minister of Resource Planning 1987. Koperasi Kijang Mas v. Kerajaan Negeri Perak 1991 CLJ 486.
In 1997, Mokhtar Sidin JCA of the Jahore High Court became the first Malaysian judge to acknowledge common law aboriginal title in Adong bin Kuwau v. Kerajaan Negeri Johor. Adong bin Kuwau v. Kerajaan Negeri Johor 1997 1 MLJ 418. The High Court cited the Federal Constitution and the Aboriginal Peoples Act, as well as decisions from the Privy Council, Australia, Canada, New Zealand, and the United States. That case was the first time where Orang Asli directly and expressly challenged a state taking of their land. The opinion held that: "the aborigines' common law rights include, inter alia, the right to live on their land as their forefathers had lived." The case was upheld on appeal, but the Federal Court did not write an opinion. Kerajaan Negri Johor & Anor v Adong bin Kuwau & Ors 1998 2 MLJ 158.
Later High Court and Court of Appeal decisions built upon the foundation of Adong bin Kuwau. Nor anak Nyawai & Ors v Borneo Pulp Plantation Sdn Bhd & Ors 2001 6 MLJ 241. Sagong bin Tasi & Ors v Kerajaan Negeri Selangor & Ors 2002 2 MLJ 591. Kerajaan Negeri Selangor & Ors v Sagong Bin Tasi & Ors 2005 6 MLJ 289. Amit bin Salleh & Ors v The Superintendent, Land & Survey Department, Bintulu & Ors 2005 7 MLJ 10. Madeli bin Salleh (Suing as Administrator of the Estate of the Deceased, Salleh bin Kilong) v Superintendent of Lands & Surveys (Miri Division) and Ors 2005 MLJU 240; 2005 5 MLJ 305. Superintendent of Lands & Surveys, Bintulu v Nor Anak Nyawai & Ors 2005 4 AMR 621; 2006 1 MLJ 256. Hamit bin Matusin & Ors v Penguasa Tanah dan Survei & Anor 2006 3 MLJ 289. However, the ability for indigenous peoples to bring such suits was seriously limited by a 2005 ruling that claims must be brought under O. 53 RHC, rather than the representative action provision. Shaharuddin bin Ali & Anor v Superintendent of Lands and Surveys, Kuching Division & Anor 2005 2 MLJ 555.
In 2007, the Federal Court of Malaysia wrote an opinion endorsing common law aboriginal title for the first time in Superintendent of Lands v. Madeli bin Salleh. Superintendent of Lands & Surveys Miri Division & Anor v Madeli bin Salleh (suing as the administrator of the estate of the deceased, Salleh bin Kilong) 2007 6 CLJ 509; 2008 2 MLJ 677. The Federal Court endorsed Mabo and Calder, stating that "the proposition of law as enunciated in these two cases reflected the common law position with regard to native titles throughout the Commonwealth." The High Court of Kuching held in 2010, for the first time, that NCL may be transferred for consideration between members of the same community, as long as such transfers are not contrary to customary law. Mohamad Rambli bin Kawi v Superintendent of Lands Kuching & Anor 2010 8 MLJ 441.
The New Zealand Parliament responded with the Native Lands Act 1862, the Native Rights Act 1865 and the Native Lands Act 1865 which established the Native Land Court (today the Māori Land Court) to hear aboriginal title claims, and—if proven—convert them into freehold interests that could be sold to Pākehā (New Zealanders of European descent). That court created the "1840 rule", which converted Māori interests into fee simple if they were sufficiently in existence in 1840, or else disregarded them. Oakura (1866) (unreported) (CJ Fenton). Kauwaeranga (1870) (unreported). Symonds remained the guiding principle, Re Lundon and Whitaker Claims Act 1871 (1872) NZPCC 387. until Wi Parata v the Bishop of Wellington (1877). Wi Parata v the Bishop of Wellington (1877) 3 N.Z. Jur. (N.S.) 72. Wi Parata undid Symonds, advocating the doctrine of terra nullius and declaring the Treaty of Waitangi unenforceable.
The Privy Council disagreed in Nireaha Tamaki v Baker,. and other rulings,.. but courts in New Zealand continued to hand down decisions materially similar to Wi Parata. Hohepa Wi Neera v Wallis (Bishop of Wellington) [1902] NZGazLawRp 175; (1902) 21 NZLR 655, Court of Appeal (New Zealand). The Coal Mines Amendment Act 1903Currently, section 261 of the Coal Mines Act 1979. and the Native Land Act 1909 declared aboriginal title unenforceable against the Crown. Eventually, the Privy Council acquiesced to the view that the Treaty was non-justiciable..
Land was also lost under other legislation. The Counties Act 1886 s.245 said that tracks, "over any Crown lands or Native lands, and generally used without obstruction as roads, shall, for the purposes of this section, be deemed to be public roads, not exceeding sixty-six feet in width, and under the control of the Council". Opposition to such confiscation was met by force, as at Opuatia in 1894. A series of Acts, beginning a year after the Treaty of Waitangi with the Land Claims Ordinance 1841, allowed the government to take and sell 'Waste Lands'.
Favorable court decisions turned aboriginal title litigation towards the lake beds, Tamihana Korokai v Solicitor-General (1912) 32 NZLR 321. Re Lake Omapere (1929) 11 Bay of Islands MB 253. but the Māori were unsuccessful in claiming the rivers In Re Bed of Wanganui River 1955. the beaches, In Re Ninety-Mile Beach 1963 NZLR 461. and customary fishing rights on the foreshore. Keepa v. Inspector of Fisheries; consolidated with Wiki v. Inspector of Fisheries 1965 NZLR 322. The Limitation Act 1950 established a 12-year statute of limitations for aboriginal title claims (6 years for damages), and the Maori Affairs Act 1953 prevented the enforcement of customary tenure against the Crown. The Treaty of Waitangi Act 1975 created the Waitangi Tribunal to issue non-binding decisions, concerning alleged breaches of the Treaty, and facilitate settlements.
Te Weehi v Regional Fisheries Office (1986) was the first modern case to recognize an aboriginal title claim in a New Zealand court since Wi Parata, granting non-exclusive customary fishing rights. Te Weehi v Regional Fisheries Office (1986) 1 NZLR 682. The Court cited the writings of Dr Paul McHugh and indicated that whilst the Treaty of Waitangi confirmed those property rights, their legal foundation was the common law principle of continuity. The Crown did not appeal Te Weehi which was regarded as the motivation for Crown settlement of the sea fisheries claims (1992). Subsequent cases began meanwhile—and apart from the common law doctrine—to rehabilitate the Treaty of Waitangi, declaring it the "fabric of New Zealand society" and thus relevant even to legislation of general applicability. Huakina Development Trust v Waikato Valley Authority 1987 2 NZLR 188. New Zealand Maori Council v Attorney-General held that the government owed a duty analogous to a fiduciary duty toward the Māori... This cleared the way for a variety of Treaty-based non-land Māori customary rights. Tainui Maori Trust Board v Attorney-General 1989 2 NZLR 513 (coal). Te Runanganui o Te Ika Whenua Inc Society v Attorney-General 1990 2 NZLR 641 (fishing rights). Ngai Tahu Maori Trust Board v Director-General of Conservation 1995 3 NZLR 553 (whale watching). By this time the Waitangi Tribunal in its Muriwhenua Fishing Report (1988) was describing Treaty-based and common law aboriginal title derived rights as complementary and having an 'aura' of their own.
Circa the Te Ture Whenua Māori Act 1993, less than 5% of New Zealand was held as Māori customary land. In 2002, the Privy Council confirmed that the Maori Land Court, which does not have judicial review jurisdiction, was the exclusive forum for territorial aboriginal title claims (i.e. those equivalent to a customary title claim) McGuire v Hastings District Council 2000 UKPC 43; 2002 2 NZLR 577. In 2003, Ngati Apa v Attorney-General overruled In Re the Ninety-Mile Beach and Wi Parata, declaring that Māori could bring claims to the foreshore in Land Court. Attorney-General v Ngati Apa 2002 2 NZLR 661. Attorney-General v Ngati Apa 2003 3 NZLR 643. The Court also indicated that customary aboriginal title interests (non-territorial) might also remain around the coastline. The Foreshore and Seabed Act 2004 extinguished those rights before any lower court could hear a claim to either territorial customary title (the Maori Land Court) or non-territorial customary rights (the High Court's inherent common law jurisdiction). That legislation has been condemned by the Committee on the Elimination of Racial Discrimination. The 2004 Act was repealed with the passage of the Marine and Coastal Area (Takutai Moana) Act 2011.
Schedule 2 of the Constitution of Papua New Guinea recognizes customary land tenure, and 97% of the land in the country remains unalienated.
The case ultimately did not lead to the inclusion of the Aboriginal title in South African doctrine. Legal scholars allege that this is because the application of terms like 'indigenous' and 'Aboriginal' in a South African context would lead to a number of contradictions.
The identity of the indigenous groups in South Africa is not self-evident. The adoption of a strict definition, including only communities descended from San people and Khoekhoe people, would entail the exclusion of black African communities, an approach deemed detrimental to the spirit of national unity. The legacy of the Natives Land Act also means that few communities retain relationships with the land of which they held before 1913.
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From 1895 Taiwan was under Japanese rule and indigenous rights to land were extinguished. In 1945, the Republic of China (ROC) took control of Taiwan from the Empire of Japan; a rump state Republic of China was established on Taiwan in 1949 after the Communists won the Chinese Civil War. From then, indigenous people's access to traditional lands was limited, as the ROC built cities, railroads, national parks, mines and tourist attractions. In 2005 the Basic Law for Indigenous Peoples was passed.
In 2017 the Council of Indigenous Peoples declared , about half of Taiwan's land area (mostly in the east of the island), to be "traditional territory"; about 90 percent is public land that indigenous people can claim, and to whose development they can consent or not; the rest is privately owned.
The Court of Appeal delivered a decision in 1994 that sided with the aboriginal title claimant on nearly all issues, but ultimately ruled against them, holding that the Constitution (Consequential, Transitional and Temporary Provisions) Act, 1984—which rendered the constitutional right to property enforceable in court—was not retroactive. Attorney-General v. Lohay Akonaay and Another 1994 TZCA 1; 1995 2 LRC 399 (Court of Appeal of Tanzania, Civil Appeal No. 31 of 1994) (Nyalali, C.J.). In 1999, the Maasai people were awarded monetary compensation and alternative land by the Court of Appeal due to their eviction from the Mkomazi Game Reserve when a foreign investor started a Rhinoceros farm. Lekengere Faru Parutu Kamunyu and 52 Others v. Minister for Tourism, Natural Resources and Environment and 3 Others, Civil Appeal No 53 of 1998, unreported, (1999) 2 CHRLD 416 (Court of Appeal of Tanzania at Arusha) (Nyalali, C.J.). The government has yet to comply with the ruling.
Later cases established that aboriginal title could be terminated only by the "clear and plain intention" of the federal government, a test that has been adopted by most other jurisdictions. United States v. Santa Fe Pac. R. Co., 314 U.S. 339 (1942). The federal government was found to owe a fiduciary duty to the holders of aboriginal title, but such duty did not become enforceable until the late-20th century. Lone Wolf v. Hitchcock, 187 U.S. 553 (1903). Seminole Nation v. United States, 316 U.S. 286 (1942). United States v Sioux Nation, 448 U.S. 371 (1980).
Although the property right itself is not created by statute, sovereign immunity barred the enforcement of aboriginal title until the passage of the Indian Claims Commission Act of 1946,, et seq . which created the Indian Claims Commission (succeeded by the United States Court of Claims in 1978, and later the United States Court of Federal Claims in 1982). These bodies have no authority to title land, only to pay compensation. United States v. Alcea Band of Tillamooks (1946) was the first ever judicial compensation for a taking of Indian lands unrecognized by a specific treaty obligation. United States v. Alcea Band of Tillamooks, 329 U.S. 40 (1946). Tee-Hit-Ton Indians v. United States (1955) established that the extinguishment of aboriginal title was not a "Takings Clause" within the meaning of the Fifth Amendment. Tee-Hit-Ton Indians v. United States, 348 U.S. 272 (1955). On the strength of this precedent, claimants in the Court of Federal Claims have been denied interest—which otherwise would be payable under Fifth Amendment jurisprudence—totalling billions of dollars ($9 billion alone, as estimated by a footnote in Tee-Hit-Ton, in interest for claims then pending based on existing jurisdictional statutes). Fort Berthold Reservation v. United States, 390 F.2d 686, 690 (Ct. Cl. 1968).
Unlike Australia, Canada, and New Zealand, the United States allows aboriginal title to be created post-sovereignty; rather than existing since pre-sovereignty, aboriginal title need only have existed for a "long time" (as little as 30 years) to be compensable. Alabama-Coushatta Tribe of Texas v. United States, 28 Fed Cl 95 (1993); order modified by 2000 WL 1013532 (unreported).
In a 1924 appeal from India, the Privy Council issued an opinion that largely corresponded to the Continuity Doctrine: Vaje Singji Jorava Ssingji v Secretary of State for India. Vaje Singji Jorava Ssingji v Secretary of State for India (1924) L.R. 51 I.A. 357. This line of reasoning was adopted by the Supreme Court of India in a line of decisions, originating with the proprietary claims of the former rulers of the Princely states, as well as their heirs and assigns. Virendra Singh & Ors v. The State of Uttar Pradesh 1954 INSC 55. Vinod Kumar Shantilal Gosalia v. Gangadhar Narsingdas Agarwal & Ors 1981 INSC 150. Sardar Govindrao & Ors v. State of Madhya Pradesh & Ors 1982 INSC 52. R.C. Poudyal & Anr. v. Union of India & Ors 1993 INSC 77. Adivasi land rights litigation has yielded little result. Most Adivasi live in state-owned forests.
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