A species of land ownership that is unique to aboriginal law and which, as the present current of law suggests, comes with a very unique set of conditions for it to be recognized and enforceable - very different from the law as it regards freehold.
Aboriginal law as it relates to aboriginal title, as it evolves, borrows extensively from aged international law, part because of the inclination of contemporary judges to construct it that way, but also because almost of these claims have a factual matrix that reaches back or century or more.
In New York v Shinnecock, Justice Bianco wrote extensively on the law of aboriginal title, borrowing from many previous cases:
"Aboriginal title refers to the Indians' exclusive right to use and occupy lands they have inhabited from time immemorial, but that have subsequently become discovered by European settlers....
"[A]boriginal Indian title derived from the doctrine of discovery ... provided that discovering nations held fee title to these lands, subject to the Indians' right of occupancy, and use.
"After conquest, Indians were permitted to occupy portions of territory over which they had previously exercised sovereignty.
"This aboriginal title, however, was not inviolable. Specifically, Indians were secure in their possession of aboriginal land until their aboriginal title was extinguished by the sovereign discoverer. No one could purchase Indian land or otherwise terminate aboriginal title without the consent of the sovereign.... [T]he sovereign possessed exclusive power to extinguish the right of occupancy at will.
"All our institutions recognise the absolute title of the crown, subject only to the Indian right of occupancy, and recognise the absolute title of the crown to extinguish that right. Extinguishment could occur through a taking by war or physical dispossession, or by contract or treaty and did not give rise to an obligation to pay just compensation under the Fifth Amendment."
"Aboriginal title can be extinguished by treaty, by the sword, by purchase, by the exercise of complete dominion adverse to the right of occupancy, or otherwise.
"During the colonial era, Great Britain held the right of extinguishment.... The right to extinguish Indian title, sometimes called a right of extinguishment, was held by the sovereign-Great Britain in the period prior to the American Revolution. In the period prior to the American Revolution, Great Britain, recognized as the discovering nation and sovereign after defeating the French, held both the right of extinguishment and the right of preemption of Indian lands located in the colonies. Thus, Britain had the exclusive authority to extinguish Indian title, and its underlying fee title or right of preemption was good against all other discovering nations."
"Although the sovereign clearly possesses a right of extinguishment, aboriginal title is not easily extinguished. In particular, it is well-settled that an intention to authorize the extinguishment of Indian title must be plain and unambiguous, either expressed on the face of the instrument or clear from surrounding circumstances."
"Congressional intent to extinguish Indian title must be plain and unambiguous, and will not be lightly implied.
"For extinguishment to occur, the sovereign must intend to revoke the Indians' occupancy rights. The intent to extinguish aboriginal title must be plain and unambiguous based on either the face of the instrument or surrounding circumstances. Extinguishment cannot be lightly implied.
"The foundational underpinning of this Standard is the policy of the federal government from the beginning to respect the Indian right of occupancy. Thus, given this strong policy, any ambiguity on the issue of whether aboriginal title has been extinguished must be resolved in favor of the Indian tribe.
"Moreover, in order to ensure that the extinguishment was plain and unambiguous, the Court may also consider events subsequent to any sovereign determinations that may be relevant on that issue. For example, in Absentee Shawnee Tribe, the Tenth Circuit examined events subsequent to the treaty at issue to determine the intent and understanding of the Shawnee tribe: the historical record indicates that the Shawnees understood that the Treaty entitled the Rev. Johnson to the property under the Treaty, and that they intended him to have it....
"Finally, once extinguishment of aboriginal title occurs, it cannot be revived."
In Canada, Justice La Forest, then chief justice of the Supreme Court, wrote, in 1997:
"In my view, the foundation of aboriginal title (is) the fact is that when the settlers came, the Indians were there, organized in societies and occupying the land as their forefathers had done for centuries. This is what Indian title means....
"[A]boriginal peoples have a legal right to occupy and possess certain lands, the ultimate title to which is in the Crown. As well,... the inescapable conclusion from the Court's analysis of Indian title up to this point is that the Indian interest in land is truly sui generis. It is more than the right to enjoyment and occupancy although it is difficult to describe what more in traditional property law terminology....
"[T]the doctrine of aboriginal rights (one aspect of which is aboriginal title) arises from one simple fact: when Europeans arrived in North America, aboriginal peoples were already here, living in communities on the land, and participating in distinctive cultures, as they had done for centuries.
"It follows ... that the aboriginal right of possession is derived from the historic occupation and use of ancestral lands by aboriginal peoples. Put another way, aboriginal title is based on the continued occupation and use of the land as part of the aboriginal peoples' traditional way of life. This sui generis interest is not equated with fee simple ownership; nor can it be described with reference to traditional property law concepts.... [T]he aboriginal right of occupancy is further characterized by two principal features. First, this sui generis interest in the land is personal in that it is generally inalienable except to the Crown. Second, in dealing with this interest, the Crown is subject to a fiduciary obligation to treat aboriginal peoples fairly.... [A]ny description of Indian title which goes beyond these two features is both unnecessary and potentially misleading."1
In 1979, Justice Mahoney of the Canadian Federal Court had held, in Hamlet of Baker Lake, that these elements must be proven to establish an aboriginal title cognizable at common law:
"1. That they and their ancestors were members of an organized society. 2. That the organized society occupied the specific territory over which they assert the aboriginal title. 3. That the occupation was to the exclusion of other organized societies. 4. That the occupation was an established fact at the time sovereignty was asserted by England."