Time immemorial () 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 remembe ...

, record, or

tradition A tradition is a system of beliefs or behaviors (folk custom) passed down within a group of people or society with symbolic meaning or special significance with origins in the past. A component of cultural expressions and folklore, common e ...

, indefinitely

ancient Ancient history is a time period from the beginning of writing and recorded human history through late antiquity. The span of recorded history is roughly 5,000 years, beginning with the development of Sumerian cuneiform script. Ancient h ...

, "ancient beyond memory or record". The phrase is used in legally significant contexts as well as in common parlance.

In law

law Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior, with its precise definition a matter of longstanding debate. It has been variously described as a science and as the ar ...

, 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, or technical language, 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 conte ...

in judicial discussion of

common law Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...

development and, in the United States, the

property rights The right to property, or the right to own property (cf. ownership), is often classified as a human right for natural persons regarding their Possession (law), possessions. A general recognition of a right to private property is found more rarely ...

of Native Americans.

English and American common law

"Time immemorial" is frequently used to describe the time required for a custom to mature into

.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 culture 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 previous legal cases 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. 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. 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, 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 New Hampshire ( ) is a U.S. state, state in the New England region of the Northeastern United States. It borders Massachusetts to the south, Vermont to the west, Maine and the Gulf of Maine to the east, and the Canadian province of Quebec t ...

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. More often than not, however, American courts identify common law without any reference to the phrase "time immemorial".

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. 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.2dbr>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 Oregon ( , ) is a U.S. state, state in the Pacific Northwest region of the United States. It is a part of the Western U.S., with the Columbia River delineating much of Oregon's northern boundary with Washington (state), Washington, while t ...

and northern

California California () is a U.S. state, state in the Western United States that lies on the West Coast of the United States, Pacific Coast. It borders Oregon to the north, Nevada and Arizona to the east, and shares Mexico–United States border, an ...

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 Aboriginal title is a common law doctrine that the Indigenous land rights, land rights of indigenous peoples to customary land, customary tenure persist after the assumption of sovereignty to that land by another Colonization, colonising state. ...

, 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.,'' 89 F.3dbr>908, 914
(1st Cir. 1996).

Oral tradition evidence

Historically, American judges lacked confidence in the use of Native American

oral tradition Oral tradition, or oral lore, is a form of human communication in which knowledge, art, ideas and culture are received, preserved, and transmitted orally from one generation to another.Jan Vansina, Vansina, Jan: ''Oral Tradition as History'' (19 ...

al 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 courts, United States federal court that hears monetary claims against the Federal government of the United States, U.S. government. It ...

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).

References

Common law legal terminology English law English legal terminology Past Time in government Henry II of England