Land Tenure in the Cook Islands
Chapter 5 — The Acquisition and Loss of Rights to Land
The Acquisition and Loss of Rights to Land
The following discussion of the means by which land rights were acquired in pre-contact times will provide a baseline for later comparison with the processes operating at various stages of the post-contact period. Presumably the landholding system was not static during the pre-contact era, and any reference to a custom existing in that era should (unless the context indicates otherwise) be taken to mean that it was effective at the time of first European contact, and not necessarily that it had applied from the time of first settlement.
By discovery and settlement
It was by this means that the first settlers obtained possession of the island. How they subdivided and exploited their lands is no longer known. However, tradition records that they came from somewhere in the area now known as French Polynesia, and it is therefore likely that they brought with them a system of land tenure which fell within the same broad category as that brought by the later migrants from the same culture area.
Lands thus acquired could be retained only so long as no other settlers arrived, or if they did, then only so long as the lands could be defended. From what little is known of this very early phase, it seems that the original colonists were successful in retaining considerable segments of the island despite competition from later migrants. With the advent of Tangiia and Karika, however, they page 85 relinquished a large proportion of their land rights along with their political sovereignty, and during the Tangiia-Karika regime, the whole island was formally parcelled out to one chief or another. No longer could land rights be acquired by the simple expedient of discovery and settlement alone.
Throughout the pre-contact era, conquest constituted the ultimate title to land; all land being held either by conquest or the ability to resist it.1 The act of conquest resulted in the transfer of the land rights of the conquered in that particular area to the hands of the victors, who subsequently dealt with them in one of the following four ways.
Firstly they could retain the rights permanently, and in the cases where the defeated party were exterminated this was invariably the case. The conquerors usually divided the lands among themselves, and settled some of their number there, for empty lands were liable to be settled by someone, and the surest way to retain title was to occupy.
1 In all the records of pre-contact battles in the vernacular source material there are few indeed wherein a land dispute is given as the cause of the outbreak. The most common causes were disputes over rank titles (which, of course, carried certain land rights with them), insults, and actual or attempted adultery with the wives of chiefs. Nevertheless, it is clear that the acquisition of land was often an important motive for warfare, and that the exchange of insults was the appropriate provocation to justify the commencement of hostilities.
2 Frequently the accounts do not give sufficient detail to determine whether or not the refugees sought out kin in their search for asylum. In many cases, however, the fact of relationship is stated, but in no case is there evidence to the effect that the refugee and the host were unrelated. It seems probable from the evidence that one sought out the most powerful relative from whom shelter could be expected.
It is therefore not surprising that many instances occur wherein individuals or families which had been defeated and banished were later permitted to return and have some or all of their lands restored to them. Sometimes this occurred within the lifetime of the actual aggressors, sometimes not until the next generation or even later.2
1 It was often not possible to make such an attempt immediately, and it was customary to make tattoo marks on the throat and arms as a reminder that vengeance was yet to be exacted. If it were not satisfied within the lifetime of the aggrieved party then he could pass it on to one of his children who was then obliged to act himself or to pass the mark on to his children. - Pitman, Journal 2.6.1829.
2 For example, in the late eighteenth century Tinomana Ariki was insulted by a member of one of the descent groups living in the district. Tinomana assembled a war party and attacked the offending family, killing all except one. The conquered lands were allocated among Tinomana's followers, but when the sole survivor attained manhood, he was given a particular portion of the lands of his descent group, and was later elevated to the rank of mataiapo. - Terei, Tuatua Taito 43–4.
Finally, there were instances where the conquerors restored the lands completely and unconditionally. Survivors who fled would constitute a lingering threat to the conquerors, who would be well aware that if a suitable opportunity presented itself the exiles would attempt to repossess the disputed lands. It was probably for this reason that attacking parties attempted to exterminate their enemies to a man. Thus, if the defeated survivors were numerous, or if they were supported by strong friends, it was unusual for the victors to try to retain all the lands permanently. Conquerors sometimes took the pigs and chattels of their enemies and destroyed their crops, houses and marae. After retaining the control of the lands for some time they allowed the fugitives to return and repossess their lands, provided they showed due humility in doing so.2
1 E.g. Maretu, MS 84.
2 The classic and best documented case in this category is that of the defeat and driving away of the Avarua people in about 1815 at the hands of Pa and Kainuku, and their subsequent restoration about seven years later. All their pigs were taken and all their crops destroyed. Not a coconut or a breadfruit tree was left unscathed. The lands, however, were restored in their entirety. - Maretu, MS 18–29.
By allocation and occupation within the landholding group
Initially, having assumed supremacy over the island, the people of Tangiia's time may be said to have held in common, but before long they divided out the lands among themselves. Following this primary allocation, with its well defined boundaries between tapere, the lands within each tapere were used by the respective lineages as they required them. In the early stages there would have been ample land for all, with surpluses in every tapere, and the nucleus who settled in each would have had ample room to expand and shift its cultivations, for, as different crops required different soil conditions, each family needed several pieces of land under cultivation at any one time. As families grew, their cultivations would spread over increasingly wider areas of the tapere land, and smaller groups would hive off from the parent body to set up their own households. Being separate units of production and consumption they would plant their crops separately from the parent group, and in the course of time the areas planted by them would become identified as theirs.
When divisions were made between the more important families such that each constituted a separate minor lineage, their respective land boundaries seem invariably to have been specified, but boundaries between the garden crops of households within the same minor lineage seem to have been determined by the extremities of the area cropped rather than by predetermined spatial limits of rights. These boundaries seem to have been flexible, and not to have retained any long-term identity once the area enclosed by them was no longer in use.1 In other words, occupation rather than allocation usually determined the relative page 89 spheres of influence within the minor lineage. With the passage of time and the growth of population, repeated use would lead to the boundaries becoming defined with increasing clarity, but even by the time of the Land Court in 1902 there were considerable areas which were not associated with any particular household, though almost all lands were associated with a particular minor lineage.
Another form of allocation occurred when a social group with a defined area of land became too large to be an effective unit, or when strife developed within it. Then the group would split, and either one party could ask the head of their lineage to allot them another piece of the lineage lands, or the existing lands could be partitioned and henceforth the two factions would function as separate units. Presumably this latter course was increasingly resorted to in the later years when a growing population forced closer settlement. Partition seems to have occurred most frequently after the death of a metua (the patriarch or household head) in those cases where there was disagreement as to who should succeed to his role. The normal pattern seems to have been for this position to fall to the deceased's eldest son, or, if he were too young, or if there were no sons, then to his next eldest brother. In either case the choice would be conditional on the son or brother concerned being resident there, for the role of metua was one requiring constant attendance within the family. If two aspirants to the position could not be reconciled, then partition was the simplest solution.
1 This does not apply to irrigated taro patches which did retain long-term identity.
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
1 Meek, Land Law and Custom in the Colonies, epigraph.
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
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.
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.
2 In which case the land could be inherited from the maternal grandfather.
If a right-holder died without male issue, his rights normally fell to those who held in common with him. For page 93 example, if the man had surviving brothers who shared the land with him, then his rights fell to them and their issue. Alternatively, the rights could pass through a daughter to his grandson, and instances of this occurring were common. In the event of there being neither siblings nor issue, the rights were traced back to the source whence they came, and from there to the nearest surviving relative. If no such relatives were traceable, then the land reverted to the chief of the lineage until such time as he chose to allot it to some needful member. As there was no rigid set of priorities for inheritance in cases where there were neither issue nor resident siblings, the way was left open for a number of lesser claimants, and the settlement of their various claims, being so nebulously based, was conducive to dispute.
It is not likely that many whole lineages died out, for if numbers were dwindling too low, new members could be adopted, or the waning lineage could merge with a contiguous (and undoubtedly related) lineage.1 A lineage with few members presumably had relatively extensive land resources and was thus well situated to arrange uxorilocal marriages and increase its strength by this means.
1 This may have been done either voluntarily or under pressure. Strong neighbours would be tempted to spread into vacant lands, and a voluntary merger may have been preferable to the possibility of loss by force.
In the normal course of events a woman did not exercise rights of use in her own family lands after she married, but she could return to them if need be, and secondary rights to those lands passed through her to her children.
There was, however, one circumstance under which a woman who was absent could, as of right, plant, harvest and control page 94 the disposition of a section of land in her born lineage. This was in the event of land being given as a ‘marriage portion’.1 The nature of her right in the marriage portion was such that, despite non-residence, it will be referred to as a primary right. Land was set aside as a marriage portion only when the first-born daughter of a high-ranking chief married a man of similar standing.2 While such land carried great prestige value, it was not a dowry for no rights in it passed to the husband or his family. It was simply the setting aside of a portion of land for the bride, and, more particularly, her issue. She could use the land herself, or could pass it on to one or more of her children for their use. While the land was specifically set aside for the daughter, the donor lineage retained residual rights to it. Moreover, she still had to observe appropriate obligations to her lineage in other respects or her rights in the land could be extinguished.
A chief wishing to set aside land as a marriage portion was not required to consult anyone though he could only allocate it from the lands of his own minor lineage. The gift was announced at the wedding feast.
1 Such land was known as ‘enua tao'anga rima’ (it was known as ‘topenga piro’ on some islands).
2 All recorded instances of marriage gifts of land concern the daughters of chiefs. While some informants claimed that only ariki and mataiapo had the privilege of setting aside such lands, occasional examples of leading rangatira having done so have been noted.
If the bride left her husband she and her children could return to her own extended family and could use the land set aside for her. Normally though, if she was accepted back, she would participate jointly in the use of the family lands, and unless she or her children made use of it then it would lose its character as a marriage gift and become again regarded as family land. This invariably happened if she died childless. Marriage land appears most commonly to have been used by specific children of the donee. Though they could make use of it while remaining members of their father's lineage, it was more usual for the mother to send a particular child back to live with her own lineage and use this land. Here again, if the child were sent back when young, and adopted into its mother's family, he would participate jointly in the exploitation of common lands and the marriage portion would again revert to its source unless he made use of it. While no figures are available to substantiate the point, it appears that the majority of rights given as marriage gifts were little exercised, the land reverting naturally in the course of time to those who gave it.2
1 The information in this paragraph was supplied by informants in Rarotonga, who were familiar with the pre-Land Court (i.e. pre-1902) situation. (Early indigenous sources deal only cursorily with marriages.) Whether or not the details they outlined also applied pre-contact cannot be verified, though the informants considered that they did. While I did not locate any instances of marriage portions being loaned to custodians, Judge Morgan informs me that such instances have been brought to the notice of the Court.
2 This view is supported by the comments of informants, and by the fact that when the Land Court investigated the title to all the lands on the island, very few portions were claimed as marriage lands.
By gift and permissive occupation
Certain rights in land were at times transferred by gift, but never all the rights in any parcel, for some rights invariably remained with the donors. Such gifts were always conditional and invariably implied a right of reversion to the donor if the donee died without issue. It may be better to avoid the word ‘gift’ altogether, for to the Western ear it implies the handing over of the fee simple of the land. Nevertheless, the term is frequently used in the literature, and is quite a convenient one provided it is remembered that only specific rights were given, and on specific conditions.
1 Such rights were given ‘tuatau ua atu’. While this phrase is usually translated as ‘for ever and ever’, it may be more faithfully interpreted as ‘from this time onward’, implying ‘as far as we can see’. The connotation is one of indefiniteness rather than irrevocability. Two unstated stipulations appear to have existed in all gifts. The first was that relations between the parties remained as at the time of transfer, and the second was that the right be exercised. Many examples exist wherein a right which had been granted while amicable relations existed between the parties, was withdrawn or challenged by the donors (or their issue) when relations between them deteriorated.
Gifts were given either as an acknowledgment of services rendered,1 or to persons in distress such as castaways or fugitives. The latter category of rights may be termed ‘permissive occupation’; the difference between gift and permissive occupation being that in the latter case greater qualifications were imposed and there was less commitment for the future.2 Nevertheless, even the most tenuous right, once acquired, could be strengthened over time. Permissive occupation would never remain as such. It was a temporary right, an emergency arrangement to meet some unusual situation, and in time it would either die out or grow into some other kind of right. A feature of permissive occupation was that the donor party was entitled to partake of such of the produce of the lands as they thought fit, a custom which occasioned difficulty in the settlements formed by the Tahitian missionaries prior to the arrival of their English brethren.3
1 Lands were frequently given for outstanding service in war.
2 This is, of course, a relative difference. Assuming an element of reciprocity to have existed in all exchanges, the underlying cause of the difference was no doubt that whereas in the former case the quid pro quo (in the form of some service redered) was already met, in the latter case it was still to come.
3 Pitman, Journal 12.5.1827.
It was customary for persons holding land by permissive occupation to take to the donor some token of the produce of the land. This was not regarded so much as payment, as an acknowledgment that the occupier's right was only a subordinate one. Such a token gift would be taken to the head of the host family. However, contributions of food were taken to heads of groups for other reasons too: to help in group functions, as a sign of friendship or gratitude, or as gifts on occasions associated with the life crises of relatives. This custom of taking contributions of food and its implications in the matter of land rights was later to become a very important issue, though a somewhat confused and contentious one.
1 No instance has been noted wherein a refugee married other than into the lineage in which he resided. Presumably if he did marry into another lineage it would be in his interests to shift his residence there.
The adoption of children was a very common practice, and adults were adopted occasionally. Adoption could take place at any time from birth onwards, though it was frequently arranged before birth. In Western terminology adoption connotes a definite relationship which is established at a particular time and transfers specified rights and obligations from one party to another, but in Rarotonga the adoptive relationship varied considerably and could be established either at a particular time or over a period.
2 An adoptee was known as a ‘tamaiti angai’ - literally a feeding child. In the literature the term ‘tama 'u'a’ was applied to adoptees who were not related by blood, but there was some inconsistency in the use of this term by informants.
Adoptees from outside the lineage were almost invariably secondary members of it (i.e. the children of contingent members) and automatically assumed the status of primary members once adopted. Both the father and the brothers of the adoptee's mother were primary right-holders there and could provide land for the child. This would not be possible if the adoption took place from the family of origin to a contingent member living in another lineage, for the adopting parent in such a case had only permissive status in the lineage of residence and had no power to make provision for land rights of others. Persons with no recognized connection by descent were sometimes adopted, though this was much less common than the adoption of kin,1 and seems to have been practised exclusively by persons of rank.2
While a person was adopted by a particular household and lineage, he was also adopted by a particular individual (not by a husband and wife jointly).3 The reason for this was presumably that although use-rights were exercised in common with the other members of the household, proprietary rights were shared with other members of the extended family and were differentiated individually according to status within the family group.
1 With a population of about 7,000 people living on a small island and only very limited contact with other islands, every person was no doubt related to every other. The significant factor in adoption would no doubt be whether or not the relationship between the parties was recognized.
2 This supposed tendency may possibly be due to the lack of evidence about such adoptions by commoners. However, as the adoption of non-relatives appears generally to have been motivated by political considerations it is unlikely that commoners were involved to the same extent as chiefs, if at all.
3 This is still almost invariably the case today.
Frequently one or two special portions of land were set aside for the adoptee and his issue for so long as they lived and used the land. The adoptee would be brought up by the family which had adopted him, but once he reached maturity he could either remain in that household or set up a new household on the land allotted to him. If he did not exercise his rights in the special plot or plots allotted to him either by he himself or some of his issue using them, then they reverted to the source from which they came. The right of an adoptee to will land given to him by his foster-family was limited to his own issue. Should he wish to devise it to others, the consent of the donors was required.
1 ‘If native custom is properly carried out the lands to be awarded to an adopted child are made known at the time of adoption…. Unfortunately this procedure was not always followed….’ - Judge Morgan, MB 22:339 NLC.
2 Moss, JPS 3:23. This is still generally the case today.
Once adopted into another family or lineage a person could only exercise contingent rights in the lands of his lineage of origin. But in many cases the process of adoption was not so clearly defined, especially if the households were close together so that children could spend some of their time with their born parents and some with their maternal uncles and grandparents, and could exercise similar primary rights in both households. If, in a particular case, a child moved between his mother's household and that of his maternal grandparents, and in his adolescence tended to accept the latter as his more usual abode, he would exercise his land rights there. But in the event of friction his right in the adoptive household might be disputed, and if he were unpopular for some reason the household into which he had been born may not want to take him back. While this type of case appears to have been the exception (for most children would be welcome in either group) it probably did occur occasionally.1
1 No pre-contact example of this type has been located but a post-contact example wherein neither family were prepared to make adequate provision of lands for the child of a deceased adoptee is given in MB 22:318–20 NLC.
There is no information available with regard to sex preferences in adoption, though accounts of adoptions by ranked families usually refer to male children.
1 The number of children adopted today is reducing year by year and the land rights of the respective parties are now clearly specified. Nevertheless, the Registrar of the Land Court (Mr L.H. Trenn) estimates that nearly ninety per cent of the land disputes which come before his notice concern rights acquired by adoption or by permissive occupation. There is evidence to indicate that this is no new phenomenon, for indigenous histories contain numerous instances of disputes over the rights of adoptees.
The pattern of acquisition
No quantitative data is available from the pre-contact era to indicate the relative incidence of each of the various ways of acquiring land rights, but in one of the best documented of the early land cases witnesses incidentally name those persons who actually planted the block of land in question during the nineteenth century. Of a total of about 60 persons mentioned it has been possible to determine in 36 instances the persons from whom each acquired his right to plant. Of the 36, 19 acquired their rights from their fathers, 1 from his father by adoption, 5 from their mothers, 2 from classificatory elder brothers, 4 from their wives, 2 from wives of their brothers, and 3 by permissive occupation from persons apparently unrelated.2
2 Avaavaroa case - MB 1:107–39 NLC. It will be noted that the above persons were users and did not necessarily have proprietary rights in the land.
From evidence given in the Ngati Te Ora case1 data were compiled on all persons mentioned as actually owning and occupying (i.e. the primary right-holders in) one particular block of land prior to the advent of the Land Court. The data does not purport to be exhaustive, as almost all the persons mentioned were household heads, and those living within their households were not named though they were included by implication. A total of ten names was mentioned, and their relationship to the Te Ora lineage is as follows. Three were persons who held (at some stage) the title of Te Ora Rangatira, one was a brother of the rangatira and another a classificatory brother, three were heads of kiato within the lineage, one was a member of one of these kiato, one was a woman whose father married uxorilocally and who accordingly claimed through her maternal grandfather who was a kiato of the lineage. In addition to the above holders of both proprietary and usufructuary rights there were two persons who were granted permission to occupy by a kiato who travelled overseas, one who was given permission to occupy by the then Te Ora Rangatira (the latter a man who held two rangatira titles concurrently, and the person to whom he gave the permission was a kiato under him in his capacity as holder of the other title), and one was a son-in-law of the preceding. Thirteen of the fourteen persons named were males.
1 E.g. MB 4:277 NLC.
The loss of rights to land
A person could be deprived of land rights as punishment, but this deprivation was usually a concomitant of expulsion page 105 from the social group.1 Responsibility for crime lay not only with the criminal but also with his family - a custom which shocked the early English missionaries.2 At times offenders were not banished but certain portions of their lands were taken away from them and either given to the injured party, or, on the showing of due humility by the offender, later restored to him. The latter course of action really amounted to a threat that unless the offender acted with appropriate humility he would be deprived of his lands. Alternatively again, the lands were sometimes laid waste without depriving the offender of his rights to them.
1 The actual driving out of the family was known as ‘akataa’ and a person who had been so driven out was accordingly known as a ‘tangata akataa’. The act of seizing his possessions was known as ‘aru’, and that of devastating his crops and destroying his house was called ‘akatanea’. This system of plunder was similar to the New Zealand Maori custom of muru.
2 E.g. Pitman, who graphically describes the banishment and confiscation of lands of a set of brothers for a crime committed by one of them. - Journal 14.8.1829.
3 Even in the case of conquest or banishment rights were often not entirely lost, for they may be gratuitously restored, or action may be taken to repossess them. Likewise in the case of gifts, the donor retained residual rights.
The continued recognition of rights to any particular portion of land as belonging to a particular social group was dependent upon occupation by members of that group or by persons to whom they had delegated some of their rights. Just what constituted ‘occupation’ in the case of little-used lands is difficult to define, but residence within the tapere concerned appears to have been one of the prerequisites. If there was inadequate land, groups could probably not maintain for long their rights to land which they did not actively use.1 Nevertheless, the challenge to the survival of a right came only when a counter-claimant began to exercise rights by planting, building or harvesting on the land.
1 Even if a claim to unused land was impregnable to an aggressor it could nevertheless be vulnerable to the humble request of a friend and potential supporter.