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Land Tenure in the Cook Islands

By inheritance

By inheritance

A boy usually lived on the lands of his father, and as he grew to adulthood he participated in the gardening and food gathering activities and learned the boundaries of such page 90 lands as were shared with other members of his household, and those shared with the rest of the lineage. As post-marital residence was most commonly virilocal he spent his whole life on the same area of land and brought his children up on it. From birth he was entitled, as a primary member of the group, to sustenance from the land; and provided he did not leave the family to live elsewhere, this right continued throughout his lifetime. His rights in the lands occupied by his household were usually not to specific portions, but rather to a share in the use and administration of the lands, for as the household functioned as the elementary production and consumption unit, many of his rights and obligations in respect to the use of family lands were exercised in common.

It is necessary to distinguish between proprietary rights which were acquired by inheritance and rights which existed merely as a by-product of one's residence in the household. The latter (those of wives and other permissive members) were never more than conditional rights of use. In so far as land use was concerned, it could be said that the living members of the household succeeded in common to the rights in common of those who died or left the family. Perhaps the most appropriate description is that attributed to an African chief who said ‘We conceive of the land as belonging to a vast family, many of whom are dead, a few of whom are living, and countless members of which are yet unborn’.1

The administration of the lands of the household centred on the senior resident male member, though an aged family head could retire and pass the responsibilities on to his successor - usually his eldest son. It was presumably at the level of the minor lineage that the most common read-justments in land rights of the component groups were made

1 Meek, Land Law and Custom in the Colonies, epigraph.

page 91 in accordance with the changing needs of constituent families. The administration of lands at the major lineage and tribal levels was likewise vested in the respective titleholders, though this is not meant to imply an autocratic power, for at all levels there was a tradition of consultation with the heads of component sub-groups before any important decisions were taken.

Wills1 were often made regarding the disposition of land rights. Ideally they were made from the death-bed, all primary and contingent members of the lineage being present, as well as the titleholder. At the burial, the will of the deceased was made known to the assembled elders, and either ratified or modified.2 The necessity for a will to be made public was clearly stated in the laws of Rarotonga which were made shortly after the arrival of the missionaries.3

The rights which could be transferred by will were strictly limited.4 One could not will the rights one acquired as a member of the lineage (e.g. to bush land, the lagoon, the common paths and water-holes) but only those rights in particular portions of planting land which adhered to one personally. Even then the consent of the lineage was necessary. Many wills merely allocated rights in the same way as they would have gone if no will had been made, though special provision was sometimes made for the interests of persons whose rights were tenuous and who might otherwise

1 The indigenous term is ‘reo iku’.

2 Gill, Life… 77.

3 ‘Laws of Rarotonga…’ 1879 clause 14. These laws, ostensibly made by the ‘King and chiefs’ were greatly influenced by the English missionaries. The principles of the law on wills, however, are in accord with evidence of this custom from other sources.

4 As a man's pigs, chickens and mature crops were consumed at his death feast, wills did not apply to such chattels. This custom is still adhered to on some of the outer islands, and ceased on Atiu less than a decade ago.

page 92 have been ejected after the death of those who had been responsible for them. These included refugees, adoptees and men living uxorilocally.

A woman could make a will disposing of the rights in her marriage land, but the disposition had to be within her own issue. The only other circumstance under which it was considered proper for a woman to make a will was to devolve a lifetime use-right on her husband if he was living on her land. There is no evidence of a corresponding right of a dying husband to grant a life interest to his wife. With the exception of wills by women in the atypical circumstances described all available examples of wills are those by titleholders - rangatira, mataiapo or ariki. Whether the lack of evidence as to wills of others is due to their not being of sufficient social and economic importance to record, or to the fact that commoners did not have the power to devise land rights by will, is not clear.

The only other circumstances whereby one could inherit primary land rights in lineages other than one's own born or adopted lineage were when lands which were given in marriage had subsequently passed to a secondary member,1 or when a landholding group was without direct male issue.2 Illegitimate children were accepted as part of the household of their mother and exercised land rights there like any other members. In view of the extent of pre-marital freedom permitted, it is likely that considerable numbers of children would have come within this category.

1 See pages 93-5.

2 In which case the land could be inherited from the maternal grandfather.