Editing Time immemorial (section)

=== US federal Indian law ===

==== Water rights ====
"Time Immemorial" is sometimes used to describe the priority date of [[Water law in the United States|water rights]] holders.<ref name=":1" /> In the western United States, water rights are administered under the [[Prior-appropriation water rights|doctrine of prior appropriation]].<ref name=":5">Jessica Lowrey, "[https://www.colorado.edu/law/sites/default/files/LOWERY%20_corrected_.pdf 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">{{Cite web |title=Prior appropriation doctrine |url=https://www.law.cornell.edu/wex/prior_appropriation_doctrine |access-date=2022-05-14 |website=LII / Legal Information Institute |language=en}}</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 v. United States|''Winters'' rights]], is the date the tribe's [[Indian reservation|reservation]] was established.<ref>''[[Winters v. United States|Winters v. U.S.]],'' [[List of United States Supreme Court cases, volume 207|207]] [[United States Reports|U.S.]] [https://supreme.justia.com/cases/federal/us/207/564/ 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,'' [[wikisource:Federal Reporter/Second series/Volume 723|723]] [[Federal Reporter|F.2d]] [https://casetext.com/case/united-states-v-adair-3 1394, 1414] (9th Cir. 1983).</ref> For example, in ''U.S. v. Adair,'' the court reasoned that the [[Klamath Tribes|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 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,<ref name=":6">Daniel G. Kelly, Jr., "[https://www.jstor.org/stable/1121776?seq=1 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.,'' [[wikisource:Federal Reporter/Third series/Volume 89|89]] [[Federal Reporter|F.3d]] [https://casetext.com/case/narragansett-ind-tribe-v-narragansett-elec 908, 914] (1st Cir. 1996).</ref>

==== Oral tradition evidence ====
Historically, American judges lacked confidence in the use of Native American [[oral tradition]]al evidence, oral histories shared between past and present generations, in court.<ref name=":4">Rachel Awan, "[https://ideas.dickinsonlaw.psu.edu/dlra/vol118/iss3/6/ 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.,'' [https://cite.case.law/ct-cl/165/501/ 165 Ct. Cl. 501, 504] (1964).</ref>