Blackstone writes that our ancestors, if provided merely a usufructuary right
of property, would not seek to improve upon it in a way that would make life "more easy, commodious, and agreeable; as, habitations for shelter and safety, and raiment for warmth and decency.
The federal nature of the tribal rights is demonstrated by and provides for the establishment of reservations and various usufructuary rights
, by treaty, statutory agreement or executive order in territory far removed from a particular tribe's historic territory; a situation which commonly occurred, particularly during the removal period.
In addition, legal recognition of the water permit holders' usufructuary rights
in water arguably gives standing to the environmental pollution victims.
Justice Dickson identified two lines of authority, which characterize Aboriginal title as either a "beneficial interest" in land, or a personal, usufructuary right
28) Taylor's deed contains language similar to the 1863 County Record, indicating he was fully aware that the descendants of the original settlers of the Sangre de Cristo grant had usufructuary rights
to the property he was purchasing.
The Cultural Limitation on Exploitation of Usufructuary Rights
In 1990, the Mille Lacs Band of Chippewa Indians and others filed suit in federal court against the state of Minnesota and others for a declaratory judgment that they retained their usufructuary rights
under the 1837 Treaty and an injunction to prevent the State's interference with those rights.
20) At its core, however, regulated riparianism separates itself from prior appropriation because the usufructuary rights
it creates are for a limited time, so that when permits expire new entrants are in a position to seek allocation of the scarce water resource on the basis of a single set of standards.
In 1999 the United States Supreme Court affirmed that Ojibwe retained the usufructuary rights
reserved in the 1837 treaty.
at 983 (discussing Roman usufructuary rights
, which also could not be sold to third parties, and which Epstein attributes to a fear of "more intensive or destructive use[s] by the new party in possession").
32) However, Brennan J's comment in Mabo [No 2] that 'it is not possible to admit traditional usufructuary rights
without admitting a traditional proprietary community title' (33) illustrates a 'pendant right-underlying title' analysis that also appears to underpin the subsequent High Court decision in Yanner: Another dimension to this first stream of thought is those provisions of the Native Title Act 1993 (Cth) which are premised on a 'quasi-freehold' view of native title: the elaborate statutory provisions dealing with compensation for extinguishment and impairment of native title, (36) the residual category of valid future acts (37) and the 'non-extinguishment principle' which appears throughout the Act.
Mule Lacs Band Of Chippewaindia (1999), concerned an eighth circuit ruling which held that the usufructuary rights
to hunt and fish granted to the Chippewa by the United States government in an 1837 treaty regarding land they once held were not extinguished when Minnesota was admitted into the Union in 1858.