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84-580: When the Supreme Court reversed its position in 1913, the land title to much of the state was called into question. Congress responded in 1924 and 1933 with compromise legislation to extinguish some aboriginal title and to establish procedures for determination and compensation. After making contact with the Pueblo in 1541, the Spanish generally acknowledged the property rights of the people. In 1689,

168-445: A circuit judge. When the office was created in 1948, the chief judge was the longest-serving judge who had not elected to retire, on what has since 1958 been known as senior status , or declined to serve as chief judge. After August 6, 1959, judges could not become or remain chief after turning 70 years old. The current rules have been in operation since October 1, 1982. The court has twelve seats for active judges, numbered in

252-585: A credible, but yet unproven, claim to Aboriginal title. 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

336-608: A famous dictum in Calvin's Case (1608) that the laws of all non-Christians would be abrogated upon their conquest. Coke's view was not put into practice, but was rejected by Lord Mansfield in 1774. 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). The first Indigenous land rights case under

420-446: A long time ago, generally before the assertion of sovereignty , and continuity to the present day. Aboriginal title does not constitute allodial title or radical title in any jurisdiction. Instead, its content is generally described as a usufruct , i.e. a right to use, although in practice this may mean anything from a right to use land for specific, enumerated purposes, or a general right to use which approximates fee simple . It

504-938: A statutory procedure that returned approximately 40% of the Northern Territory to Aboriginal ownership; the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 , had a similar effect in South Australia . 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

588-452: A term of seven years, or until age 70, whichever occurs first. If no judge qualifies to be chief, the youngest judge over the age of 65 who has served on the court for at least one year shall act as chief until another judge qualifies. If no judge has served on the court for more than a year, the most senior judge shall act as chief. Judges can forfeit or resign their chief judgeship or acting chief judgeship while retaining their active status as

672-683: A very complicated and difficult series of conflicting titles affecting lands claimed by the Pueblo Indians of New Mexico". The Act created a Public Lands Board composed of: the Attorney General, Interior Secretary, and a third member to be appointed by the president. The act further provided that the Pueblo's aboriginal title would be extinguished over lands deemed adversely possessed by non-Indians from 1889 to 1924 (with payment of taxes) or 1902 to 1924 (with color of title ). In addition to statute of limitations /adverse possession,

756-705: 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

840-466: 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

924-940: 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 pastoral leases , which cover nearly half of Australia, do not extinguish native title in Wik Peoples v Queensland . In response, Parliament passed

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1008-401: 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." Subsequent decisions have drawn on the fiduciary duty to limit the ways in which the Crown can extinguish Aboriginal title, and to require prior consultation where the government has knowledge of

1092-861: 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 . The High Court of Australia , which had appellate jurisdiction before 1975, recognized aboriginal title in Papua New Guinea —decades before it did so in Australia—in Geita Sebea v Territory of Papua (1941), Administration of Papua and New Guinea v Daera Guba (1973) (the "Newtown case"), and other cases. The Supreme Court of Papua New Guinea followed suit. Schedule 2 of

1176-631: The Constitution of Papua New Guinea recognizes customary land tenure , and 97% of the land in the country remains unalienated. In Alexkor v Richtersveld Community (2003), a suit under the Restitution of Land Rights Act 1994 , lawyers gathered case law from settler jurisdictions around the world, and judges of the Constitutional Court of South Africa talked frankly about Aboriginal title. The Land Claims Court had dismissed

1260-576: The Eighth Circuit until 1929. The court is composed of nineteen active judges and is based at the Byron White U.S. Courthouse in Denver , Colorado . It is one of thirteen United States courts of appeals and has jurisdiction over 560,625 square miles, or roughly one seventh of the country's land mass. Congress created a new judicial circuit in 1929 to accommodate the increased caseload in

1344-656: 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

1428-504: 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

1512-610: The Numbered Treaties were void. A variety of non-land rights cases, anchored on the Constitution Act 1982, have also been influential. 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 [A]boriginal title, the [A]boriginal group asserting title must satisfy the following criteria: (i) the land must have been occupied prior to sovereignty, (ii) if present occupation

1596-769: 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 . In 2007, Chief Justice Abdulai Conteh ruled in favor of the Maya communities of Conejo and Santa Cruz, citing

1680-524: The 1924 and 1933 acts. The Pueblo have been awarded some compensation by the Court of Federal Claims (and its predecessor, the Court of Claims). In earlier cases, the Court of Claims had held that decisions of the Lands Board prevented compensation. Aboriginal title Aboriginal title is a common law doctrine that the land rights of indigenous peoples to customary tenure persist after

1764-598: The 1926 nor 1933 acts extinguished the water rights of the Pueblo. During the late 20th century, Pueblo litigants have prevailed in cases concerning land titles that they have been deemed to have adversely possessed during the Spanish era. In 1991, the United States Court of Appeals for the Tenth Circuit found a claim by the Pueblo of Santo Domingo to 24,000 acres under a Spanish grant to be barred by

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1848-710: The Act preserved any "equitable defenses which [the claimants] may have or have had under the laws of the Territory and State of New Mexico". Decisions of the Lands Board could be enforced by quiet title suits in the United States District Court for the District of New Mexico . Further, the Act provided for compensation to the Pueblos if they "could have been at any time recovered for said Indians by

1932-813: The Australian citizenry as a result of the 1967 referendum . In 1971, Blackburn J of the Supreme Court of the Northern Territory rejected the concept in Milirrpum v Nabalco Pty Ltd (the "Gove land rights case"). The Aboriginal Land Rights Commission was established in 1973 in the wake of Milirrpum . Paul Coe , in Coe v Commonwealth (1979), attempted (unsuccessfully) to bring a class action on behalf of all Aborigines claiming all of Australia. The Aboriginal Land Rights Act 1976 , established

2016-723: The CKGR. Aboriginal title has been recognized in Common Law in Canada since the Privy Council , in St. Catharines Milling v. The Queen (1888), characterized it as a personal usufruct at the pleasure of the Queen. This case did not involve indigenous parties, but rather was a lumber dispute between the provincial government of Ontario and the federal government of Canada. St. Catharines

2100-472: 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. Simon (1985) overruled R. v. Syliboy (1929) which had held that Aboriginal peoples had no capacity to enter into treaties, and thus that

2184-626: 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

2268-482: The Crown did not intend to extinguish private property upon acquiring sovereignty, and thus that pre-existing interests were enforceable under British law. Its mirror was the Recognition Doctrine, which held that private property rights were presumed to be extinguished in the absence of explicit recognition. In 1608, the same year in which the Doctrine of Continuity emerged, Edward Coke delivered

2352-568: 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

2436-585: 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

2520-617: The King of Spain granted some type of formal title to the Pueblo. Mexico ceded most of modern-day New Mexico to the United States in 1848 under the Treaty of Guadalupe Hidalgo . Three years later, in 1851, Congress explicitly extended the Nonintercourse Act to the territory of New Mexico. Despite this, during the territorial period, the highest court in the territory three times, and the U.S. Supreme Court once, consistently held that

2604-669: 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 . A Botswana High Court recognized aboriginal title in Sesana and Others v Attorney General (2006), a case brought by named plaintiff Roy Sesana , which held that the San have the right to reside in the Central Kalahari Game Reserve (CKGR), which

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2688-818: 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. Symonds remained

2772-536: The Native Title Act, adopted strict requirements of continuity of traditional laws and customs for native title claims to succeed. In A-G for British Honduras v Bristowe (1880), the Privy Council held that the property rights of British subjects who had been living in Belize under Spanish rule with limited property rights, were enforceable against the Crown, and had been upgraded to fee simple during

2856-572: The Privy Council issued many opinions confirming the existence of aboriginal title, and upholding customary land claims; many of these arose in African colonies. Modern decisions have heaped criticism upon the views expressed in Southern Rhodesia . The requirements for establishing an aboriginal title to the land vary across countries, but generally speaking, the aboriginal claimant must establish (exclusive) occupation (or possession) from

2940-564: The Pueblo Lands Act, the Interior Secretary had the power to approve conveyances of interests in Pueblo lands. Thus, the Court reversed the Tenth Circuit, which had affirmed partial summary judgement to the Pueblos in seeking trespass damages against a telephone company whose agreement with the Pueblos had not been approved by Congress. In United States v. Trujillo (1988), the Tenth Circuit upheld an ejectment action by

3024-537: The Pueblo could sell their lands without Congressional consent. New Mexico became a state in 1912. The enabling act provided: " 'Indian' and 'Indian country' shall include the pueblo Indians of New Mexico and the lands now owned and occupied by them." The New Mexico Constitution provided a similar guarantee to Pueblo land tenure: The people inhabiting this state do agree and declare that they forever disclaim all right and title ... to all lands lying within said boundaries owned or held by any Indian or Indian tribes,

3108-462: The Pueblo, accompanied by trespass damages, where the non-Indian defendant (and his predecessors interest) had not filed with the Lands Board. On May 10, 1926 Congress passed an act providing: That lands of the Pueblo Indians of New Mexico, the Indian title to which has not been extinguished, may be condemned for any public purpose and for any purpose for which lands may be condemned under the laws of

3192-640: The ROC built cities, railroads, national parks, mines and tourist attractions. In 2005 the Basic Law for Indigenous Peoples was passed. United States Court of Appeals for the Tenth Circuit The United States Court of Appeals for the Tenth Circuit (in case citations , 10th Cir. ) is a federal court with appellate jurisdiction over the district courts in the following districts : These districts were part of

3276-447: The Secretary of the Interior. On at least two occasions, Congress passed legislation approving post-1924 conveyances. In several early cases, the Pueblo Lands Act was applied to dismiss Pueblo land claims, brought as ejectment or trespass, in federal court. The Pueblo had more mixed success litigating quiet title claims under the act, especially where the federal government sued in its trust capacity. The Pueblo had no success in challenging

3360-448: The State of New Mexico, and the money awarded as damages shall be paid to the superintendent or officer in charge for the benefit of the particular tribe, community, or pueblo holding title to same: Provided, however, That the Federal courts of said State of the district within which such lands are located shall have and retain jurisdiction of all proceedings for the condemnation of such lands ... The Tenth Circuit has held that this act

3444-482: The Supreme Court, where one justice is specifically nominated to be chief, the office of chief judge rotates among the circuit judges. To be chief, a judge must have been in active service on the court for at least one year, be under the age of 65, and have not previously served as chief judge. A vacancy is filled by the judge highest in seniority among the group of qualified judges, with seniority determined first by commission date, then by age. The chief judge serves for

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3528-402: 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. The Court cited the writings of Dr Paul McHugh and indicated that whilst the Treaty of Waitangi confirmed those property rights, their legal foundation

3612-458: The United States by seasonable prosecution". Non-Indians also received full compensation if they acquired title before 1912 and compensation for improvements if after 1912. Prospectively, for post-1924 conveyances, § 17 of the act provided: No right, title, or interest in or to the lands of the Pueblo Indians of New Mexico to which their title has not been extinguished as hereinbefore determined shall hereafter be acquired or initiated by virtue of

3696-489: The assumption of sovereignty to that land by another colonising 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

3780-412: The beaches, and customary fishing rights on the foreshore. 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

3864-498: The circuit, lawmakers focused on providing for more judgeships and meeting places of the circuit courts of appeals in their deliberations. In 1929, Congress passed a law that placed the federal U.S. district courts in Minnesota , Iowa , North Dakota , South Dakota , Nebraska , Missouri , and Arkansas in the Eighth Circuit and created a Tenth Circuit that included Wyoming , Colorado , Utah , New Mexico , Kansas , and Oklahoma . Three additional judgeships were authorized and

3948-416: 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. Other important Privy Council decisions include In re Southern Rhodesia (1919) and Amodu Tijani v. Southern Nigeria (Secretary) (1921). The former rejected a claim for aboriginal title, noting that: Some tribes are so low in

4032-406: The compensation calculations performed by the Board. In United States v. Candelaria (1926), the Supreme Court held that § 4 of the Lands Act provided the only affirmative defense that could be raised by land owners in a Nonintercourse Act/quiet title suit initiated by the federal government on behalf of the Pueblos, concerning pre-1924 conveyances. In 1985, the Supreme Court held that, under

4116-457: The complaint of the Richtersveld peoples, whose land was seized by a government owned diamond mining operation . The Supreme Court of Appeal disagreed, citing Mabo and Yorta Yorta , but held that the aboriginal title had been extinguished. Whether the precedent will be the start of further land rights claims by indigenous peoples is an open question, given the cut-off date of 1913 in the Restitution Act. The case ultimately did not lead to

4200-410: The composition of all but two circuits. The House of Representatives considered two proposals to divide the existing Eighth Circuit. A bill by Representative Walter Newton would separate the circuit's eastern and western states. An alternate proposal divided the northern from the southern states. With the judges and bar of the existing Eighth Circuit for Newton's bill and little opposition to dividing

4284-405: 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, but the Māori were unsuccessful in claiming the rivers

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4368-400: 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. Aboriginal title can be extinguished by the general government, but again, the requirement to do this varies by country. Some require

4452-432: 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. Taiwanese indigenous peoples are Austronesian peoples , making up a little over 2% of Taiwan 's population; the rest of the population is composed of ethnic Chinese who colonised

4536-536: The federal courts. Between 1866 and 1912, twelve new states had entered the Union and been incorporated into the Eighth and Ninth Circuits. The Eighth Circuit encompassed 13 states and had become the largest in the nation. Chief Justice William Howard Taft suggested the reorganization of the Eighth Circuit Court in response to widespread opposition in 1928 to a proposal to reorganize the nation's entire circuit structure. The original plan had sprung from an American Bar Association committee in 1925 and would have changed

4620-408: The first time in Superintendent of Lands v. Madeli bin Salleh . 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

4704-521: The force of law. Malaysian court decisions from the 1950s on have held that customary lands were inalienable . In the 1970s, aboriginal rights were declared to be property rights, as protected by the Federal Constitution. Decisions in the 1970s and 1980s blocked state-sanctioned logging on customary land. 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 . The High Court cited

4788-449: The foreshore in Land Court. 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

4872-418: The gap between Spanish and British sovereignty. This decision did not involve indigenous peoples, but was an important example of the key doctrines that underlie aboriginal title. 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. The Maya peoples of

4956-442: 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. 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

5040-424: The guiding principle, until Wi Parata v the Bishop of Wellington (1877). 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 . The Coal Mines Amendment Act 1903 and

5124-437: 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 and Khoekhoe people, would entail

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5208-456: The independent existence of common law aboriginal title. Native Customary Rights (NCR) and Native Customary Land (NCL) are provided for under section 4(2) of the National Land Code 1965, the Sarawak Land Code 1957, the respective provisions of the National Land Code (Penang and Malacca Titles) Act 1963, and the Customary Tenure Enactment (FMS). Rajah's Order IX of 1875 recognized aboriginal title by providing for its extinguishment where cleared land

5292-414: The island from the 17th century onward. 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 Japanese Empire ; a rump 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

5376-420: The laws of the State of New Mexico, or in any other manner except as may hereafter be provided by Congress, and no sale, grant, lease of any character, or other conveyance of lands, or any title or claim thereto, made by any pueblo as a community, or any Pueblo Indian living in a community of Pueblo Indians, in the State of New Mexico, shall be of any validity in law or in equity unless the same be first approved by

5460-436: The legislature to be explicit when it does this, others hold that extinguishment can be inferred from the government's treatment of the land. In Canada, the Crown cannot extinguish aboriginal title without the explicit prior informed consent of the proper aboriginal title holders. New Zealand formerly required consent, but today requires only a justification, akin to a public purpose requirement. Jurisdictions differ on whether

5544-410: 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 . 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

5628-432: The provinces, and provincial law still applies. In 2008, Japan gave partial recognition to the Ainu people . However, land rights were not given for another eleven years. In 2019, Japan fully recognised the Ainu people as the indigenous people of Japan and gave them some land rights if requested. Malaysia recognised various statutory rights related to native customary laws ( adat ) before its courts acknowledged

5712-553: The recognition of native title . Aboriginal title arose at the intersection of three common law doctrines articulated by the Judicial Committee of the Privy Council : the Act of State doctrine, the Doctrine of Continuity , and the Recognition Doctrine . The Act of State doctrine held that the Crown could confiscate or extinguish real or personal property rights in the process of conquering, without scrutiny from any British court, but could not perpetrate an Act of State against its own subjects. The Doctrine of Continuity presumed that

5796-472: The right or title to which shall have been acquired through the United States, or any prior sovereignty; and that until the title of such Indian or Indian tribes shall have been extinguished the same shall be and remain subject to the disposition and under the absolute jurisdiction and control of the congress of the United States. In United States v. Sandoval (1913), the Supreme Court recanted nearly all of its analysis from United States v. Joseph (1877). By

5880-403: The same community, as long as such transfers are not contrary to customary law . New Zealand was the second jurisdiction in the world to recognize aboriginal title, but a slew of extinguishing legislation (beginning with the New Zealand land confiscations ) has left the Māori with little to claim except for river beds , lake beds , and the foreshore and seabed . In 1847, in a decision that

5964-468: 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. Two years later, Amodu Tijani 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,

6048-415: The sitting circuit judges were reassigned according to their residence. The Tenth Circuit was assigned a total of four judgeships. As of December 13, 2023 : Chief judges have administrative responsibilities with respect to their circuits, and preside over any panel on which they serve, unless the circuit justice (the Supreme Court justice responsible for the circuit) is also on the panel. Unlike

6132-450: 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 . Australia did not experience native title litigation until the 1970s, when Indigenous Australians (both Aboriginal and Torres Strait Islander people) became more politically active, after being included in

6216-544: The time of the Sandoval decision, the Senate estimated, 3,000 non-Indians had purchased Pueblo lands. The prevailing legal view was that the Pueblo could not obtain ejectment against those settlers. Congress responded with the Pueblo Lands Act of 1924. Congress passed the Pueblo Lands Act on June 7, 1924. The Senate and House reports described the purpose of the act as "to provide for the final adjudication and settlement of

6300-518: Was repealed by implication two years later. The repeal in question was effected independently by two acts, passed in 1928 and 1948 respectively. Congress amended the 1924 act in 1933. The amendments allowed the Pueblos to sue in their own name and increased the amount of compensation the federal government would pay. Moreover, the amendments authorized the Interior Secretary to offer the Pueblos monetary compensation in exchange for relinquishing legal claims. The Tenth Circuit held in 1976 that neither

6384-403: Was abandoned. Rajah's Order VIII of 1920 ("Land Order 1920") divided "State Lands" into four categories, one of them being "native holdings", and provided for the registration of customary holdings. The Aboriginal People's Act 1954 creates aboriginal areas and reserves, also providing for state acquisition of land without compensation. Article 160 of the Federal Constitution declares that custom has

6468-516: Was decided in the wake of the Indian Act (1876), which laid out an assimilationist policy towards the Aboriginal peoples in Canada ( First Nations , Inuit , and Métis ). It allowed provinces to abrogate treaties (until 1951), and, from 1927, made it a federal crime to prosecute First Nation claims in court, raise money, or organize to pursue such claims. St. Catharines was more or less

6552-539: 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

6636-544: 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) In 2003, Ngati Apa v Attorney-General overruled In Re the Ninety-Mile Beach and Wi Parata , declaring that Māori could bring claims to

6720-512: Was not appealed to the Privy Council, the Supreme Court of the colony of New Zealand recognized aboriginal title in R v Symonds . The decision was based on common law and the Treaty of Waitangi (1840). Chapman J went farther than any judge—before or since—in declaring that aboriginal title "cannot be extinguished (at least in times of peace) otherwise than by the free consent of the Native occupiers". The New Zealand Parliament responded with

6804-403: 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

6888-459: 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. New Zealand Maori Council v Attorney-General held that

6972-655: Was upheld on appeal, but the Federal Court did not write an opinion. Later High Court and Court of Appeal decisions built upon the foundation of Adong bin Kuwau . 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. In 2007, the Federal Court of Malaysia wrote an opinion endorsing common law aboriginal title for

7056-458: Was violated by their 2001 eviction. The decision quoted Mabo and other international case law, and based the right on the San's occupation of their traditional lands from time immemorial . The court described the right as a "right to use and occupy the lands" rather than a right of ownership. The government has interpreted the ruling very narrowly and has allowed only a small number of San to re-enter

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