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Land Tenure in the Cook Islands

By adoption2

By adoption2

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.

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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.

Ideally, an adoptee's rights were specified at the time of adoption, but the ideal was not always achieved in

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.

page 100 practice.1 It was customary to call together all those persons whose land rights would be affected by the adoption and to obtain their consent. This was done by making the announcement at a feast prepared for the occasion, for it was accepted custom that any person who had partaken of a feast without raising any objection to the arrangements announced there was considered to have concurred in those arrangements.2

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.

Even when a particular portion of land was set aside and used by the adoptee, he could not remain exclusively on that land, nor could he obtain all his requirements from it. The mountain-sides, the taro swamps, the rich alluvial flats, the rocky foreshore, and the lagoon each yielded products which were not available from the other. Most commonly an adoptee was given a piece of alluvial gardening land, and some taro swamp land but this did not satisfy all his needs

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.

page 101 and his other requirements were obtained from lands of the lineage which he had joined. His relationship with them was one of constant interaction, and his land rights cannot be regarded in isolation.

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

On the other hand, and this appears to have occurred much more frequently, an adoptee sometimes succeeded in holding primary rights in both lineages, for in the same way that a family could set aside land as a marriage portion for a woman who married out, so also could they set aside land for a child who was adopted out. As with the marriage gift, such land was more often used by one of the issue of the

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.

page 102 donee than by the donee himself. Even apart from lands specifically reserved for him, the adoptee normally retained contingent rights in the lands of his natal lineage, and thus if his natal family was at any stage left without direct male issue, or any other atypical circumstance arose, he could reassert primary rights there. This marginal status of adoptees was conducive to dispute, and in fact rights acquired by adoption have always been a matter of contention.1

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.