The Maori People and Their Legal System
Alissa Strong
May 2006
This paper is based almost entirely upon two sources: the first is a book entitled Primitive Economics of the New Zealand Maori by Raymond Firth,[1] and the second is a webbed book called A Glimpse into the Maori World: Maori Perspectives on Justice a collaborative work coordinated by Ramari Paul and comprising a number of papers on individual topics written by students and professors at several local universities.[2] One of the interesting things about doing this research is that there is some degree of disagreement as to the extent of communism in pre-European Maori culture. I found that Primitive Economics generally takes the perspective that although much of Maori concepts of ownership were communal, that they none-the-less had a well developed concept of personal ownership and individual use.[3] In the webbed book, however, I found a distinctly different attitude on ownership which tends to downplay the importance of personal ownership in favor of a view of the Maori as intrinsically and almost uniformly communist.[4] As a result of the fact that Firth takes into account the scholars and experts opinions that communal living was prevalent but still finds strong evidence for some aspects of individual ownership, I tend to weight his analysis as more authoritative on point. This is particularly true because the webbed book makes very little reference to any personal items and spends no time analyzing the possibility of personal ownership.
I. Maori People and Culture
A. History and Background
Possibly as early as 2000 years ago, ancestors of the Maori left southeastern Asia and settled in the Society Islands, located particularly Ra’iatea, near to Bora Bora and Tahiti.[5] The people were Polynesian, ethnically similar to other indigenous peoples of the south pacific including those of the Hawaiian islands.[6] When fishing expeditions had discovered “new lands” to the south, centuries of warfare in a struggle for space, power, and food influenced the less successful chiefs to lead their people to the Aotearoa, the North Island of modern day New Zealand.[7] Thus, in giant, sea-faring canoes called waka, capable of holding up to one hundred passengers in addition to plentiful supplies, Maori ancestors arrived on Aotearoa as early as 800 A.D.[8] When the bulk of the Polynesian settlers arrived in the fourteenth century and found other people already inhabiting the North Island, they mostly absorbed, but sometimes enslaved them into their culture.[9] All of the modern day Maori are descended from this mixed group of earlier Polynesian travelers.
Physically the Maori are a tall, well-built, tough race. Women are strong, curvy, easily bore children, and sometimes even accompanied men to war.[10] Well versed in language and knowledge of natural surroundings,[11] the Maori were avid observers of the sky and the stars .[12] They saw the constellations (sometimes in similar groupings as European traditions) as “guides to man,” giving signs regarding fertility, crops, fishing, navigation, migration, and weather changes.[13] The Maori calendar, which began in June, was a twelve month lunar cycle responsible for guiding Maori economic activities such as planting, harvesting, and gathering of the essential dietary items.[14] What is different about the Maori calendar, however, from other lunar calendars such as the one used by Muslims, is that occasionally the calendar incorporates a thirteenth month, most likely because the calendar needed to predict the weather cycles, which would have been slightly off had not the thirteenth month sometimes been included.[15]
One way to distinguish between the tribes is to divide them by the food they ate.[16] Generally, nearly all tribes had more than one main food source.[17] The fern root was a particularly common staple for most of the tribes, though the coastal eastern tribes relied more upon fish for basic dietary needs.[18] “In general the tribes of Auckland and the North, the Bay of Plenty, Tauranga and the remainder of the East Cost, Taranaki, Nelson, and the Kaiapohia district practiced agriculture. The people of the West Coast and the larger part of the South Island, as also Taupo and Urewera, gained their living chiefly from forest products, augmented largely in the case of Whanganui by eels.”[19] The Arawa tribes main food source was freshwater fish, crayfish, and mussels from lakes.[20]
B. The Maori Village: Kainga and Pa
Pa is the term used to describe villages protected by way of natural situation or constructed reinforcement.[21] The term Kainga is used to describe villages which are not protected like the pa. These are the only types currently inhabited by Maori.[22] In both types of villages, the internal structure was essentially the same, each village having some number of randomly patterned “rectangular dwelling-huts” of approximately ten by twelve feet, constructed out of a variety of materials including, poles, thatch and sometimes timbers, usually lined with reeds or ferns to ensure warmth.[23] In addition to dwellings, each village had a social gathering building, communal underground storehouses and pits for food, communal cooking sheds, a common latrine, a sacred alter or tauhu, and a public square or marae.[24] Despite the lack of a planning pattern in the dwellings’ locations, the chief’s dwelling was often the farthest from the opening or gate of the village and the dwellings were roughly arranged around the marae.[25] In addition to the dwellings were one or more larger “houses of superior style” for social meetings and gatherings.[26] Food in villages was communally in underground pits or storehouses. As the dwellings were primarily for sleeping, the communal “cooking sheds” were weak buildings, often open to the elements or only partially walled with firewood since in good weather cooking was done outdoors.[27] As for sanitation, Maori villages usually utilized a common latrine either near the edge of a cliff or outskirts of the village.[28]
The marae¸ a large open space or field in the middle of the village was the center of Maori life, a playground, meeting-place and dining center of the village.[29] Aside from the marae, a visitor’s gaze would be first drawn to the whare runanga or larger meeting house of the village, the construction of which was a communal economic effort completed by a complex exchange of goods and services.[30]
One of the ancient customs prevented food from being brought into or consumed within the whare runanga for fear of upsetting the tapu or sacredness of the dwelling and the people.[31] Tapu could also be disrupted by the wearing of footwear within that building. In modern times, however, the law preventing food consumption seems to have been weakened.[32] Further, although the Maori still observe the no-shoe policy, visitors may choose to keep on their footwear so long as they submit to a heavy fine to offset the damage to the tapu of the building.[33]
C. Families, Kinship, Marriage and Children
1. Families and kinship
The smallest grouping in a Maori culture is the whanau, a grouping of closely related family members that usually cohabit in one or two dwelling huts or whare.[34] This group usually comprised two elderly people, their children and grandchildren or it could describe siblings and their spouses and children.[35] As a unit of social and economic affairs within the village and tribe, the whanau was independent and self-reliant under the direction of the male head of the household.[36]
The next largest Maori social grouping is the hapu, an extended kinship group or clan.[37] Over several generations, as a whanau grew in size, it could eventually become large enough and important enough in rank to be termed a hapu.[38] At this stage the hapu, usually attaining several hundred in membership,[39] named themselves after a noteworthy common ancestor[40] and began actively encouraging endogamy (marriage within a clan or group) of distant relations within the clan.[41] Since endogamy was not required, though, when a person from one clan married one from another, the children were actually considered members of both hapu,[42] in much the same way that a child with parents from two different countries might have dual citizenship. And although a child could choose to be a member of either this mother’s or his father’s hapu, it seems to have been common practice to trace one’s lineage to the most important patrilineal relative.[43] Further, though a married couple from two different hapu could choose to live in either of their villages, once chosen, if their descendents remained in the same hapu, over several generations the children would no longer consider themselves members of the hapu from which their one ancestor came.[44]
The next largest social grouping was called an iwi and usually consisted of several larger hapu, and perhaps some smaller hapu.[45] In some sources, iwi are considered synonymous with “tribes.”[46] Generally, villages were inhabited by one hapu, or if the hapu were smaller than usual, a village might be home to two or three clans.[47] Even if the village was entirely the same hapu, there were always village members who were not related as a result of intermarriage or visitors.[48] The word iwi literally means “bone” and refers to the bones of the ancestors of the iwi.[49] Further, in addition to their genealogic requirements iwi were independent geographic units identified by their territorial boundaries which they defended, when necessary, by force.[50] As an independent socio-economic unit—and the largest of such units in Maori culture—an iwi was responsible for protecting its member’s interests and for enhancing the mana[51] of the whole.[52]
Aside from the whanau, the hapu, and the iwi, the fourth and largest social grouping among the Maori was the waka,[53] the group of people who could trace their common ancestors to crewing one of the famous fourteenth century canoes.[54] Unlike the whanau, hapu or iwi, waka groupings are not necessarily geographic since they incorporate such a large number of individuals. Apparently, modern day Maori are taught from which waka they come and hold the association with pride, though they do not live in such groupings (Firth, 101). One modern Maori, for example, belongs to the Takitimu and Kurahaupo wakas and the Ngai Tara, Ngati Rangitane, Ngati Kahungunu and Ngai Te Whatuiapiti iwis.[55] Because the waka involved such a large group, the ties between iwi from a common waka were not as strong as the ties between hapu of a common iwi; in spite of this, the waka bond served as an intertribal alliance binding the iwi in common defense in times of war against other iwi or waka.[56]
2. Marriage
It seems that marriage was generally monogamous and regarded, much the same as cultures around the world, as a lifelong partnership.[57] Despite the belief that marriage was for life, divorce and separation were available.[58] Maori marriages began with a definite and explicit marriage ceremony and were sexually exclusive.[59] Adultery or puremu was defined as sexual inclusivity among anyone outside the husband and wife and was severely punished:[60] Puremu outside of the hapu or iwi was considered even more serious than inter-hapu adultery and consequently “redress was sought by the injured hapu [the hapu of the husband of the adulterous woman] sending a [war] party to confront the whanau and hapu of the woman who had transgressed her marriage.”[61] Once there, the war party would exact reparation through confiscation of prized treasures (taonga) such as greenstone sculptures or amulets. Both parties to the conflict considered this the resolution of the dispute, though the female’s hapu did not get to exact any punishment on anyone.[62] Further, it is not clear whether the war parties ever used violence to exact restitution on the offending family. Though most cases of punishment for adultery punished the woman and her kin, some, though few, placed the blame upon the man with whom she was involved: In one instance the male involved in the adultery was killed by the female’s brother, but this was considered just punishment for his adulterous action.[63] And, although adultery was a serious offense, there were times in which neither party was punished.[64]
Though often economic and political alliances, marriages were also united by love and affection in most cases and fidelity, particularly on the part of wives, was coveted.[65] And, although the nuclear family was not given much weight as a unit of tribal society, the marriage partnership was recognized, respected and given a small degree of independence from the whanau in matters relating to the married couple alone.[66]
Marriages were often arranged as a means of maintaining tribal lands and heirlooms: this was established primarily through the naming of female children by important relatives. [67] Supplying the name for the child seems to have conferred upon the relative a guardianship right in her marriage.[68] In one case a girl was named Rangi-hua-moa at the request of chief Takaanini and was ultimately marred to a young relative of the chief.[69] In addition to many arranged marriages, those that were not, required parental and sibling (particularly brotherly) consent.[70] The basis for familial consent was not in control over women so much as it was founded in contractual concerns: if a woman married a stranger and non-member of the tribe, her children would still inherit partial ownership rights in her family’s tribal lands and as a result, her brothers who’s children would be impacted by such an arrangement had the right to intervene.[71]
Although no specific age is given as the marriageable age, it is clear that by age eighteen, if not sooner, a woman had come of age for the purpose of marriage.[72] And, although it is not clear whether it was rule or custom, serious dating did not happen before about age fifteen.[73] Physical maturity was the primary determinant of eligibility for marriage, though most women married before age twenty while most men married after.[74] Further, it was discovered early that close intermarriage weakens offspring and therefore endogamy was encouraged only so far as it did not involve marriage between relatives closer than three generations.[75]
Though marriage was generally monogamous, chiefs sometimes married multiple wives. In such cases, the chief and first wife would be of equal social status and would be charged with responsibility for the domestic household affairs.[76] Additionally, it was common for men in polygamous marriages to have several separate homes and to live consecutively with each wife, particularly in cases where the wives could not cohabit peaceably.[77] Secondary wives were often either slave girls or sisters to the primary wife, though this was by custom, not rule.[78] One of the reasons for allowing such polygamy in spite of the cultural standard of sexual exclusivity was routed in the belief that infertility was unique to women.[79] Another may have been to counteract the slight discrepancy in the ratio of men to women owning to those men killed in warfare.[80]
3. Children and Adoption
Because of the prevalence of adoption and the emphasis on the whanau and not on nuclear families, some Maori scholars have suggests that there is little evidence of affection between parents and children.[81] Firth, however, asserts ample evidence to the contrary suggesting a great deal of “deep affection” and “excessive fondness” among parents and children in Maori tribes.[82] Further, evidence of particular customs to be practiced by expectant mothers demonstrates Maori recognition of the important connection between mother and child. Maori lore connected children’s stunted growth with the practice of cutting a pregnant woman’s hair and thus proscribed the activity.[83] Maori awareness of the important mother-child bond is further evidenced in a funeral lament’s recognition that mothers are the ones who look forward to their children’s homecoming, who shelter and comfort their children, and who inquire as to their children’s safety and wellbeing.[84] Child-rearing was not just the purview of mothers, however, and fathers usually took an active interest in the child, even before being born.[85] Fathers were responsible for sating the food cravings of their pregnant wives, for carrying around the newborn, washing the child, watching the child while working, and for educating the male children.[86]
In addition to natural born children, Maori custom provided for frequent adoptions. [87]What is different and interesting about Maori adoption is that its purpose seems have been not, as in American and European cultures, to place an unwanted or unaffordable child into a good home but instead to regain and strengthen family ties weakened by distance or travel. To that end, adoptions took place only between relatives, but never intertribally or with strangers.[88] To better understand this custom, the story of Te Pataka Te Hapi is illustrative: Te Pataka Te Hapi lived in one place (Hauraki) but was from another (Taranaki). In moving from Taranaki, he had lost his right his land there. To effectuate a reconnection and regaining of the right to those lands, Te Pataka Te Hapi’s grandson was named Wananga after a cousin’s father which subsequently gave the cousin, a resident of Taranki) a right to the child. Wananga (the child) was adopted at age three by his cousin and went to live in Taranki.[89] Though in this case, Wananga was taken away from his tearful mother at age three, sometimes the departure did not occur until the child came of age and was marriageable. This was particularly the case for girls who were promised in a form of marriage arrangement by their names given at birth but were only sent for later when they were to be married.[90]
D. Social Stratification and Structure
There were primarily three classes in Maori social structure: rangatira, tutua, taurekareka. (chiefs, commoners and slaves.)[91] In addition to classes, further distinction called “tohunga” was applicable, regardless of class, to any person expert in a skill such as wizardry, black magic, tattooing, carving, warring, or any other area of knowledge and ability.[92] The tutua class was the largest in Maori communities and represented the most economically productive group in the community.[93] Tutua, translated in English as commoners, are defined as a class by their not being apart of the chief class or those who are high born. The division between the chiefs and commoners occurred as a result of first born children being of higher class than those born later. As a result, even though a tutua might be able to claim a blood relationship to the founding ancestor of the group, if he or she were not apart of the senior line, the line of first children, they could not be apart of the rangatira class.[94] Additionally, as junior family members married other junior family members, their rank diverged even farther from the rangatira class, a process that sometimes resulted in these junior members breaking away and forming their own hapus.[95]
The slave class, on the other hand, were generally comprised of those captured from Maori defeated in battles.[96] Because uncaptured members of the slaves tribes and families did not attempt their rescues and generally thought of them as dead, slaves were not restricted since they had no one to whom to return.[97] Further, slaves, unlike a lot of the rest of Maori property, were individually owned and never the property of the general tribe.[98] And, though there were no specific rules requiring slaves to obey their masters, relations between them were relatively peaceful because slaves were fed and housed and insolence or disobedience could result in their use as a human sacrifice at the preference of their master.[99] As for their tasks, they were responsible for menial jobs and things that would affect the honor of the other classes.[100] For example, dull and unpleasant tasks such as drawing water, carrying firewood, bearing food or supplies, cooking, and paddling the canoes.[101] Interestingly, offspring of a slave with another social class elevated the children into the tutua class, though it is not clear just how commonly this occurred.[102]
Primogeniture being of the utmost importance in Maori culture, the line of descent through eldest sons, called “aho ariki,” was the established method of choosing tribal chiefs.[103] Chiefs came from long lines of chiefs and their descent was the primary factor in their prestige and authority.[104] The ariki or first born son of the highest ranking family was the leader or chief. The highest ranking family was determined by the family able to trace its genealogy from the founder of the iwi or hapu through the most related first ancestors.[105] Younger siblings of the ariki were rangitira as well. Further, first-born girls, called “ariki tapairu,” though not chiefs, had ceremonial and ritual responsibilities on account of their birth.[106]
For the ariki, however, birth alone was not enough to guarantee becoming a full chief: personality, foresight, initiative, capability, leadership ability were necessary attributes of any chief who wished to maintain actual authority over the tribe.[107] A capable chief’s lead was generally followed, but was not without question by the rest of the rangatira class and the important elders in the community.[108] Those Chiefs who were not “effective in the eyes of the people” were considered “defective” or “hopeless” and were removed or replaced for the purpose of all important decisions,[109] staying on perhaps only to perform certain ceremonial or ritual rights.[110] Often the replacement of an incapable or otherwise unrespected ariki was a younger brother or nearest male cousin on the father’s side and if no other heir on the mother’s side.[111] One of the reasons for the ability requirement of Maori leaders is that chiefs retained responsibility for acting as the guardian of ancestral heirlooms, and trustee of tribal property.[112]
Those chiefs that were successful in retaining authority and respect in their community were usually possessed of great leadership qualities but also great wealth.[113] Wealth for the chief was particularly important as his rank, prestige and authority depended on it. Specifically, the chief’s ability to provide lavish entertainment for visitors, disburse wealth among his followers, and to retain a large number of personal slaves were central to his community reputation.[114] Despite the need to have visibly more resources than other Maori, the position of chief did not represent some great mass of wealth and on the whole the difference between chiefly ownership and that of other community members was only one of degree.[115]
E. Mana and Tapu
Mana, defined as life force, prestige, power, influence, and authority,[116] can be both inherited or earned during life,[117] or can be lost temporarily or permanently through contamination.[118] The reason mana is important is that those displaying high levels of it are respected for being viewed favorably by the kawai tipuna or revered ancestors.[119] In the sense that good actions, ones consistent with Maori values and customs produced or increased both individual and group mana,[120] mana is somewhat of a karmic concept. At birth, child inherited mana from his or her kawai tipuna; then throughout life his or her mana was increased through advantageous marriage, excellence in warfare, artistic prowess, exceptional work-ethic, or expertise of history and Maori custom.[121] Abuse of skills or power, laziness, carelessness, illness, poor harvests, and harm to others would decrease one’s mana,[122] as would contact with cooked food yield decrease in mana by contamination.[123] Further, capture as a slave—even a slave who used to be a chief—completely depleted one’s mana, leaving him with no spiritual presence; as a result, slaves could handle cooked food and other contaminated products since they had no mana to offend.[124]
Tapu, defined as sacred, restricted or prohibited, is a principle within Maori society which operates to protect, prohibit and control the members by restricting certain activities and behaviors.[125] One way of explaining tapu is as the “major cohesive force in Maori life” as each person was “tapu or sacred,” “each life a sacred gift” linking the living with the ancestors and consequently the whole tribe.[126] Further, people and things become tapu when “imbued with the mana of the kawai tipuna,” bringing the thing or person under the kawai tupuna’s protection and yielding tribal respect.[127] Maori feared breaching tapu not just for the shame it would bring on themselves and the community but for the possibility of sickness and other misfortunes that would result from disfavor of the kawai tipuna.[128]
II. Maori Legal System
A. Introduction
Lacking a written language, Maori law is not codified, collected, or organized in the permanent way in which writing cultures legislate. In fact, it is possible that the form the Maori legal system takes derives from the lack of a written language. Instead, the ideals that form the foundation of Maori laws grew into oral traditions and manifested in sacred beliefs.[129] Thus, the Maori legal system is one based upon principles, not rules, a value-based system deriving from Maori custom or tikanga.[130] These customs form the basis of the legal system, adding rationale and authority to legal principles because of the spiritual foundation of the tikanga.[131] One of the lauded benefits of a principles-based system is that Maori law was able to adjust to changes in values without damaging cultural integrity, on the whole a fairly flexible system.[132]
B. Ownership, Property and Principles of Law
1. Ownership Generally
Although terms such as ‘property’ or ‘ownership’ do not necessarily describe identically analogous properties when applied to native communities, according to Firth, the “essential factors... remain unchanged” though “formed against a different cultural background.”[133] In fact, though Maori vocabulary lacks a specific counterpart to the term “owner,”[134] this is not evidence of a lack of the concept of individual ownership. Quite to the contrary, their speech flows with ample examples of possessive language: In speaking of stolen taro, a Maori women says “Ko ana taro nei, nana ake ano, ohara i te tangata ke nana ere taro” meaning “those taro were her very own (nana ake ano); they did not belong to any other person (tegata ke).”[135] Further evidence of the concept of Maori Ownership is evidence in the custom of labeling private property items with a tohu or distinguishing mark.[136]
Despite Maori reputation for communal living, single contemporaneous use items such as clothing, ornaments and scents, weapons and personal tools like fish-hooks or spades were entirely reserved for private individual use.[137] In addition to these privately owned items, other personal property included all of a man’s movable items such as his home, fences and other small items.[138] However, since house furniture did not exist,[139] such other items were small in number. Finally, it is interesting to note that as a general custom, items of greater import in Maori culture were often named.[140] Examples of named items include rare bird spears,[141] ancestral Maori canoes,[142] feathers with special powers or repute,[143] special trees from which the bark produced a rare dye.[144] Such naming signified importance, uniqueness and sometimes afforded the item a supernatural mystique.[145]
2. Acquiring Personal Property
Firth illuminates that despite personal ownership of these items, since women exclusively made the clothes, such ownership trends do not account for the transfer from producer to owner.[146]
By creation:
Often, production or creation of an item carried with it a strong presumptive right to its private ownership.[147] This was true in particular for items available to any tribe member willing to put for the effort to make such an item. For example, men who selected the wood, carved it and created a tool with it were the sole proprietor of such creations; women who gathered flowers or berries to make perfumes or oils were the sole owners of the fruits of their labors, too.[148]
By gathering or killing:
The fact that ones portion of the cultivated crops was owned, also suggests, according to Firth, “some process of the distribution of the fruits of labour.”[149] While it was also true that anything made or caught by a “freeman” was owned exclusively by him, if his superior, such as the village chief, were to ask for some of the his catch, or for the use of his canoe, the owner could hardly refuse. This was both because of respect for the superior and also because such gifts were customarily repaid with interest.[150] Finally, Firth explains that although such food items gathered by a Maori in a solitary expedition were regarded as his own private items, they were typically incorporated into the communal supply of food for the family group or whanau.[151]
By Exchange:
Exchange[152] was, however, an equally valid method of acquiring personal items.[153] Items such as the stone adze, a feather plume or a greenstone ornament, and others involving more labor, significant skill or rare materials were often traded rather than created. In addition, since men depended exclusively upon the women in their whanau for their clothing, such items were also achieved through exchange of services within the Maori household.[154]
By inheritance:
Items of difficult manufacture such as the bird spears of tawa were so highly prized that there were named and carefully passed from generation to generation, father to son.[155]
3. Maintaining Exclusivity
The exclusivity of ownership for the Maori meant somewhat of the same thing as in our culture: for example, to erect a home or dwelling hut on someone else’s property required permission, and was otherwise a form of trespass which afforded the owner of the land the right to exclude the trespasser at the time of his choice.[156] The right to exclude was only superseded if there were witnesses who could testify to the original permission being granted. Still, in reference to the communal nature of the Maori culture, Firth emphasizes that land trespass probably did not apply to members of the whanau.[157] Additionally, for a Maori to grow crops on someone else’s land required permission granted to him.[158] Taking or using without authorization one’s personal property was regarded as theft and could incur serious punishment.[159]
An additional, though unusual method of maintaining private ownership of goods was to hide them; during the 1840s New Zealand travelers noted that Maori would sometimes return from forest-concealed stores with food and other provisions.[160] However, Firth suggests this was a result and reaction to instability and war, and not of common practice.
It has been claimed that the small subset of privately ‘ownable’ items contrasts greatly with the rest of items in Maori society which varied in their degree of communal ownership.[161] However, though the common system of borrowing any number of owned items might appear to render these items communal by virtue of the fact that permission to borrow was a formality not often relied upon,[162] such a conclusion is not entirely correct: Much like the practices of the Cheyenne Indians, borrowing without permission did not indicate lack of ownership but instead carried with it the restrictions that borrowing happen only when the item itself was not in use and that the item had to be returned upon the request of the owner.[163] Further, borrowing usually required compensation which, if not by gift, was in the reciprocal ability to borrow in such a manner.[164]
Still, borrowing without permission was not a practice available between different ranking Maori. The supernatural concept of Tapu, which always surrounded important figures in Maori communities, rendered all items touched by such “men of rank”[165] fit only for his private, individual use. Consequently serious supernatural harm could come to common Maori who used such items.[166]
4. Theft and Lost Property
Though in many modern legal systems the remedies for theft and robbery available to the victim are limited to monetary compensation through civil suits, in Maori tribes even violent physical punishments were reserved to and the responsibility of the wronged individual.[167] Maori custom generally accorded the owner the right to punish the thief with violence and even death, though non violent punishments were also permitted.[168] Interestingly, it appears that theft from non-Maori or from a member of a different Maori tribe was not regarded with the same severity and therefore was not likely to be viewed as justifying the owner in violently punishing the thief.[169] In some instances owners were content to negotiate for a fine or a return of the property rather than resorting to violence.[170] In one case, the owner of a stolen mat announced his intention of “making war upon the culprit and killing him” but was convinced through public discussion to accept a canoe and a slave to call the affair settled.[171] Additionally, it seems that in some informal manner, thefts of lesser valued items predictably resulted in less severe reactions by owners. For example, the theft of firewood seems to have been extremely common and only to have resulted in accusations and quarrels but not in actual violence.[172]
Many anecdotes describing instances of the owner killing the thief are also cases where owner caught the thief stealing taro in one case and in another fish from the owner’s net.[173] So even though there are few examples, it was still accepted practice in Maori culture that the wronged party have the ex post facto right or option to kill the thief.[174] What is not clear is whether there were often abuses of this system; since there does not seem to have been a trial or other fact gathering institution, it is hard to tell how guilt was determined if the party was not caught stealing and therefore whether or not many innocent Maori were accused and punished for theft. Though in most cases the enforcement of the punishment and the exaction of remedy was entirely private, in at least one case there is evidence that the village chief mediated the case between one of his own citizens and a European foreigner. The dispute evolved because the European charged the Maori with the theft of one of the former’s ropes. The Chief addressed the accused with “Nau tenei i tahae” meaning “You have stolen this” and the man replied that it was true “Tika.” The Chief pronounced that as a consequence, the thief had forfeit all his property to the European “Kei te pakeha te tiganga o au mea katoa.”[175] Again what is unclear is what the result would have been had the Maori man not admitted the crime. There is no evidence of a further evidence gathering procedure to determine innocence or guilt. Still, owing to the relatively even distribution of wealth, the lack of severe poverty, and the Maori custom to help the needy, early travelers reported few thefts even when their valuable possessions were left unattended.[176]
When, as was often the case, the owner did not catch the thief “red-handed,” or for some other reason it would be inappropriate to apply a physical punishment, an owner could apply supernatural punishments to induce the thief to either admit the crime or return the property.[177] The Maori believed that certain spells when applied to an item that the thief touched or handled could cause insanity or death unless the property was returned.[178]
In contrast to stolen property, lost items were considered the property of the finder.[179] The traditional American saying of “Finder’s keepers, losers weepers” directly correlates to a concept in Maori tradition: “Ko te kura pae a Mahina” meaning “it is the treasure picked up by Mahina.”[180] The saying refers to the story of a man who found a red head-dress by the seashore which had been thrown away by its owner. Mahina, upon finding it refused to return it to the owner and in so doing established a rule of customary Maori law: “e kore e hoatu kit e tangata nana te taonga” – “the owner cannot obtain it again.”[181] It seems that the only way to regain one’s lost property once recovered by another was in a voluntary trade and thus once lost was unlikely to be recovered.[182]
5. Inheritance law
If a Maori man had no near relatives or children, his portable possessions were buried with him and larger items allowed to decay. Thus items of purely private ownership that were not inherited were interestingly also not acquired by the hapu or the tribe.[183] The case of a dispute that arose between the Ngatipou and Ngatimahuta hapus (clans) describes, among other things, one of the customs of inheritance when a couple had no children.[184] In this conflict, two clans disputed the ownership of an eel-weir (structures over waterways from which eels could more easily be fished) on a lake mostly owned by the Ngatipou clan. When a Ngatimahuta man married a Ngatipou woman, the Ngatimahuta attempted to claim the eel-weir for their own tribe since the Ngatimahuta man had been responsible for building the weir.[185] According to the inheritance laws of the Ngatipou, however, since there were no children in the marriage, upon the death of the man, the weir reverted to the widow’s eldest brother.[186] A conflict of law arose when the Ngatimahuta Chief attempted to trace ownership of the area back seven generations to avoid the Ngatipou claim to the weir.[187] Thus aside from demonstrating an interesting law of inheritance, this also shows the custom that Maori chiefs would take an interest in an item of personal property of one of their members in order to claim that interest for the whole tribe.[188]
In general, children, regardless of gender each received an allotment of property upon a parent’s death.[189] Such an allotment could include weapons, tools, clothing and other small items and were actually shared equally by the inheriting offspring.[190] Smaller items of particular value such as dogskin cloak or ornamental greenstone, however, would be inherited by the eldest son as the new head of the whanau.[191] Larger items that were not easily divisible (the canoe, dwelling-hut, etc), were held in common ownership by communal consent of the children.[192] As the eldest male received certain property, women could also divest their property to their female heirs.[193] An interesting rule of ownership held that the tanekaha tree, from which a rare clothing dye could be made, belong only to the descendants of the original person to claim or be assigned such a tree.[194] The story of a particular necklace called a hangaroa illustrates the flexibility of the rules of inheritance in Maori culture: Te Wahamu (a woman) placed her hangaroa around her daughter’s neck shortly after birth. This item seems to have become the daughter’s property upon the death of Te Wahamu.[195] Then when the daughter had no children, she placed the necklace on her brother’s daughter with whom the necklace was buried since she died without issue.[196] Though this story perhaps better illustrates the practice of ownership rights associated with the giving of gifts, it clearly demonstrates how such ownership passed over time through changes in generations.
It seems to have been common practice in Maori inheritance for the males of a family to inherit certain items and the females other items. Usually the division related to the different gender roles and responsibilities common to a tribe. In one tribe, it was customary for the females to inherit the rat-runs while the males would take over the bird-snaring trees.[197] What is interesting is how, without a written language, written legal system or any formal courts, boundaries of ownership were maintained. It seems that as children Maori would learn the locations of the boundaries what their family owned so as to be able to pass on the knowledge to their own families.[198] Additionally, when a man married a woman of a different hapu and came to live within her village, though he had no ownership rights to her land, his children would inherit her lands as well as his which were located within his hapu.[199]
In spite of scrupulous care that was taken to mark and differentiate between different property, including the custom of making all inheritance divisions public knowledge, some inheritance disputes did arise.[200] In response to such conflicts, complaining family members could address the community for a decision to settle the affair, the opinion of the whole village or sometimes tribe acting as an informal court of appeal.[201]
Without a written language, wills were made orally in a formal and solemn speech usually when an aged person was near death.[202] And, much like in other cultures, the decedent’s wishes were powerful and regarded as binding upon his relatives,[203] the eldest son usually being the executor of such a will.[204]
An analysis of Maori inheritance customs would be incomplete without reference to the rules regarding adopted children. In much the same way as current American law operates, once final, an adoption truncates all inheritance rights of the child from their biological parent and attaches the child to the adoptive parents for all legal purposes.[205] What is particularly interesting about this is that the purpose of the adoptions was, as stated in the earlier section on adoption, to effectuate connections with distanced parts of the tribe or family. It seems strange, then that while attempting to bring distanced families closer together, the inheritance rights were so strict.
6. Maori Communal Ownership
To the degree that it is possible, I will attempt to draw a distinction between property owned at the household level as compared to those items owned by the village as a whole. The difficulty in this distinction derives from the social organization of a Maori tribe which is comprised by aggregating the families or whanau into larger kinship groups or hapu which, in turn, were combined to comprise the villages and then the tribe.[206] Consequently, whanau property ipso facto belonged to the hapu and therefore also to the entire tribe.[207]
Household Property
The most important communally owned property is arguable the dwelling house or whare in which the whanau, closely related family members, lived together.[208] Another important item that was owned communally at the family level was an eel-weir. Eel-weirs that belonged to families were smaller structures built over smaller streams and creeks from which they fished for eels.[209] Other items that were owned at the family level include taha or gourds with carved mouthpieces or large enough to contain preserved birds. Taha were considered very valuable and were therefore protected and maintained for generations, being passed down the female line.[210] Aside from the limited amount of food supplies that the whanau might reserve for their own consumption, very few other items were considered exclusively the property of the whanau. Among these were the few items contained within the dwelling houses including sleeping mats, water and food supply containers, and oven stones.[211]
Additionally, for water transport or fishing in tribes living near waterways, whanau often owned one or two waka tiwai or small canoes seating seven or eight.[212] As for rights of usage among the family members, it seems that any family member had an equal right to use the canoe even if only one member had been responsible for making it.[213] It is likely however, that where conflicting claims to use such canoes developed there was some customary family hierarchy to determine whose interests came first.[214]
When it came to non-water acquisition of food, a number of different levels of ownership were common: Though the cultivation of the land was generally done communally, each family had a small plot of land divided out of the communal field and marked by stones or pathways.[215] Another common method of food collection was the erection of rat-runs which if small could be the property of simply one whanau. If large, though, rat-runs might belong to several whanau or even to several hapu.[216]
Village and Tribal Property
Like the eel-weirs that families owned, when bigger ones were constructed over large rivers, they required heavy timber and many Maori to erect and therefore became village communal property.[217] Further, much like the smaller family owned canoes, larger war-canoes and sea-going vessels belonged to the village and were for communal use even if in name they were said to belong to the village chief.[218] Another example of the blending of personal and tribe property is the aforementioned custom that village and tribal chiefs would contest property disputes between and among tribes on behalf of the personal owners’ property interests.[219]
Another more communally held property was the village meeting house which was regarded as the common property of all the village inhabitants and was always built by the villagers’ joint labor.[220] In fact, even if the village chief provided more funding for its construction, he was not considered to have greater ownership than any other village member. Finally, items of cultural or supernatural importance were usually held in the private ownership of tribal leaders.[221] However, it their importance related to the tribe as a whole, they were instead held in a sort of trust by each subsequent chief and were on occasion displayed for the admiration of the villagers.[222]
C. Maori Land Ownership
1. Maori Attitudes on and Relationship to Land
Although different tribes, iwis and hapus viewed specific portions of land as being collectively theirs, land was less a commodity than the basis of identity, the foundation of the tribe and only owned in the sense that it belonged to the community, equally shared among the living, dead and those yet to be born.[223] This view of land as a “source of identity” derives from custom: Maori principles of land inheritances hold that through genealogy or whakapapa, Maori groups establish and maintain control over the land on which they live and secure.[224] Land possession and maintenance are of the utmost importance to Maori principally because it is through the land that the living are connected to their tipuna and also to their future descendants for whom they care for and hold the land in trust.[225]
2. Acquiring “Title” or Rights of Usage
New Zealand, before its European discovery, was a land divided tribal into territories over which each tribe defended their rights through force.[226] Thus in a general sense, Maori land acquisition is a process of title by conquest “te rau o te patu” and one’s title is as good as one’s ability to keep one’s land exclusively for one’s own use.[227] This, however, is an oversimplification since even those attempting to take or retake land by force went to a good deal of trouble to uncover some ancient action giving them claim to the land.[228] Thus, in essence there are three steps in achieving title acquisition: conquest, discovery gift exchange begin the process; occupation cements the first step and ancestral right strengthens the claim.[229]
Land attained through conquest in war was termed whenua raupatu so that those acquiring the land did not forget its original owners.[230] Otherwise, land could be acquired if it was discovered unoccupied in what was called take taunaha.[231] The third method of acquisition through a gift of land was called take tukua and usually was in order to recompense for infidelity on the part of a member of one’s hapu or iwi.[232] Any and all of these methods required occupation to make them legally effective since unoccupied lands are considered acquirable through occupation.[233] Finally, when a group occupied an area over which they had take tipuna (ancestral right), Maori universally recognized their title to the land.[234] The take tipuna was established by a recitation of one’s genealogy and line of descent, though no mention is made of how this was authenticated.[235]
An important aspect of acquiring legal title was proof of occupation. According to Maori custom, there were five main methods of proving such ownership: first, if present, one could point to sacred mounds, stone markings or other identifying markers placed on the land at the first settlement and upon which were indications of the genealogy and ancestry of the owners. Further, one could look to other types of markers, newer ones, such as on trees and rocks, burial cites and markers. Secondly, occupation could be established if recitation of the genealogy or whakapapa made reference, as was the custom, to important places in that groups’ history;[236] it was common for iwi oral history to include prominent landmarks and the stories of the ancestors who had acquired them and lived there.[237].Third, establishment of a village of either kainga or pa presented clear authority for occupation of that land. Fourth, occupation could be shown through use of natural resources such as eel traps, fishing, rat-runs, gathering cites, and areas of cultivation. Finally, evidence of gifts given of birds or trees present on the land and things may therefrom could help establish a claim of occupation.[238]
3. Land Transfer
For many reasons intrinsic to Maori culture and spirituality, land transfers outside of conquests were very uncommon.[239] For one thing, the importance of tipuna in tribal life meant that natives of a particular land were often reluctant to leave, particularly in light of the sentimental and spiritual value of tribal burial grounds and important landmarks that formed part of the iwi’s whakapapa.[240] Another reason for static land ownership was that families could not sell or exchange their own lands because they were subject to the “over-right” of the iwi in whose interest is was not to allow strangers or other tribes to live in their villages.[241] Such over-rights created another impetus towards endogamy because marriages outside of one’s hapu and iwi would give strangers or outsiders access to tribal lands, an outcome which often produced legal disputes.[242] When a whanau or hapu did wish to alienate their land, the iwi chiefs had veto power; however, it seems that the other rights inherent in the land ownership balanced out the chief’s placing each legal interest on equal footing.[243]
Apparently, though rare, land could be alienated by gift; circumstances leading to such gifts were usually of some type of the following: tribal peacemaking gestures, compensation for breached tapu, compensation for murder or those killed in battle, damages for adultery, contribution to new marriages, contribution to desperate relatives, and in some cases as a dispute resolution settlement.[244] Thus, in one instance after the end of hostilities between two tribes, the chief of the Kawiti tribe gave to those he had been fighting a large piece of land in the Bay of Island district saying “The only payment I can offer for your dead is the land on which they fell—namely, Kororareka. I am about to leave this place forever; and henceforth you must consider this land as yours.”[245]
Another case illuminates the negotiation involved in exchanges of land for goods, demonstrating the method by which parties to a cession of land came to a mutually agreeable price: When the Ngati Kahungunu iwi wanted to buy land from Te Rereaw and his people, Te Rerewa explained that his people’s lands would “not be parted with for [their] garments and weapons, but if it were the bowl of [their] ancestor then indeed might an exchange be effected.” [246] As the Ngati Kahungunu had come in four large canoes, and as they understood that Te Rerewa and his people wished to move from the North Island to the South Island, the Ngati Kahungunu agreed to exchange their canoes for the land Te Rerewa was leaving. But, because the land was considered more valuable than the canoes, the Ngati Kahumgunu contracted to build Te Rerewa’s people three more canoes in exchange for being shown the location of a totara forest.[247] In conclusion of the transaction—in what seems to have had both practical and ceremonial importance—the Ngati Kahumgunu were directed to a hill top from where they learned the lay of the land and were informed of the important landmarks, their names and functions.[248]
D. Utu – the Principle of Reciprocity
Utu is the principle in Maori culture for maintaining balance, harmony, and equality, and as such operates as a form of restitution, aiming to restore the parties involved to their former position or to bring both parties to equally better relative situations.[249] One of the ways in which utu creates serious obligations on the part of an individual or group is when, as is often the case, the mana of an individual or a community depended upon an action of utu; it seems that to restore mana, an utu response had to represent more than simple reciprocity, requiring some gesture greater than an act of restitution.[250] Depending upon the situation, a proper utu response could entail a vengeful action, but otherwise could be a reward, an exchange of goods, an exchange of services, or even an insulting, offensive song.[251] Further, different situations required different timelines; utu could be necessary immediately or over generations, so long as eventually a balance was restored.[252] Another aspect of utu that varied with the situation was the method of determining the exchange rate: in determining the value, price or amount needed for an appropriate expression of utu, many of Maori cultural values would be taken into account. It seems that aside from practical value, aesthetics, social usefulness and tradition offer certain comparative standards by which exchange value was determined.[253] In addition, utu was commonly understood to require a response of greater value than the harm or gift done to or for the imbalanced party. Failure to assess an exchange or revenge of greater value could result in a lowered mana, though it was up to the receiving side to judge whether justice had been done.[254]
1. Transfer of Goods in Warfare
In general, goods seem to have changed hands in much the same way as land did: by acquisition through successful warfare, through muru (custom of recompense), and through exchange of gifts.[255] And although many good changed hands by way of war, the primary motives for such wars were land disputes, conflicts over women, intertribal insults and the like, not the pursuit of physical riches.[256] When a tribe captured a village or fort in battle, all of the goods of the community became those of the captors. Similarly, the weapons of dead warriors belonged to their slayers. In several instances, negotiations to give a valuable weapon on the part of warriors about to be slain to the impending killer were often received with agreement and reprieve.[257]
2. Utu Retaliation for Hostility
Since utu as a principle required that injuries had to be avenged, insults compensated, and balance in general restored, bad acts against other Maori had significant consequences somewhat proportionate to the wrong committed.[258] General retaliatory actions consistent with utu created a never ending cycle of reciprocity because of the constant need for relationships to be in a natural balance.[259] And, though retaliation for quarrels or revenge for spilt blood was required, it could take two or three generations to achieve; Apparently the mechanism for remembering utu responsibilities was that the injurious actions would be woven into the traditional songs and dances of that particular community so that the current generation would be held accountable for restoring balance once again.[260] Legitimate reasons to wage war for utu compensation included, adultery, murder, spousal abuse where spouses were of different hapu, breach of tapu, to counteract other tribes’ territorial encroachment, and to revenge on other communities for prior defeats in battle.[261] And, although provoking other communities with whom one was not at war would result in a decrease in mana, those who were enemies could gain mana by provoking utu through insult, or abuse of tapu.[262] To that end, enemies kept detailed lists of past offenses, particularly in light of the requirement for intensification of utu responses over time.[263] And although it would seem that such intensification of violent responses would end in indefinite chaos, such disputes could be ended by gift exchanges, peace-making fests, land transfers and, most definitively the offer of a intertribal marriage; the “peace brought about by women is an enduring one”[264] because an intertribal marriage, particularly between high-born members of the warring tribes, brought about a permanent peace settlement since they would now be related by close kinship bonds.[265]
3. Muru and Whakawa
One specific utu protocol is called muru. A very specific and ritualized way to attain utu, muru could only be made by those of a fairly close relation to the offender and seems to be reserved for situations involving people of consequence, and actions that were sufficiently relevant to the tribe as a whole as to necessitate intervention.[266] Unlike general utu, a muru was an isolated incident, internally initiated to restore the mana of the individual and his or her kinship group.[267] Further, muru could be instituted for accidental as well as intentional transgressions because the transgressor and his or her “relatives were judged guilty of negligence in allowing the accident to take place.”[268]
Actions constituting muru ranged from hand or stick beatings for serious crimes such as accidental death to compensation in property.[269] For most offenses, a plundering party was formed and to raid and take away all of the offender’s moveable property and that of his or her family.[270] And, while such punishments could be harsh and leave the offending parties with no belongings, the muru was accepted as a way to nullify the guilty and restore their mana.[271] For that reason, and because reciprocal response would have meant bringing harm to one’s own tribe, muru were close ended.[272]
The Muru Protocol: Before a muru was instituted, the offense was the subject of a detailed discussion and debate called a whakawa.[273] Whakawa proceedings are analogous to a trial and involve a great deal of formality.[274] Further, the process involved an accusation of guilt and an investigatory phase out of which a decision or judgment is determined.[275] Factors affecting the outcome of the whakawa included the status of transgressor, the status of the injured party, relationship of the parties, the customs that were offended (tikanga), the nature of the offense (intentional or accidental) and the involvement or intervention of the elders (Kaumatua).[276]
Some whakawa are small meetings between the parties to the conflict and their immediate whanau in which an agreement is reached to end a dispute.[277] More often, however, whakawa involved much of the village, and quite frequently are intervened in by the Kaumatua or respected elders of the tribe from whom the parties draw on for wisdom, guidance and usually a judgment in the case.[278] The community involved is expected to take part in dispute resolution process and to defer to the Kaumatua’s judgment.[279] Once the decision to go forward with a muru has been made, the whakawa must determine what size ‘plunder party’ to send; the larger the party, the greater the honor of the offender since the party size was directly correlated to the community’s assessment of the transgressor’s mana.[280] In some cases, the plunder took place more as a voluntary set of gifts from the offender’s tribe to the offended party: one case involving a muru to the whanau of an adulterous woman was described as follows. “Our leaders made fiery speeches accusing the local tribe of [sexual misconduct]... punctuating their remarks with libidinous songs” and after the chiefs admitted fault on behalf of their tribe, individuals came forward “to lay ... before us in payment... jade ornaments, bolts of print cloth[,] ... money [in pounds,]... horses and cattle.”[281] Apparently the end of such an exchange could be concluded by the parties rubbing noses and the transgressors hosting a large, entertaining feast.[282]
The effectiveness of muru depends upon community respect and acknowledgement. The deterrent potential of a muru derives from the fact that the punishment applies to the whole kinship group and not simply the individual transgressor.[283] Further, even if mana were not considered important, the threat of muru would probably deter transgressions because of the potential material loss of violent punishment inflicted upon the transgressor. And, despite the lost property or physical punishment, muru was seen as the natural consequence of many actions, even those that were unavoidable. For example, a leader of a war party might be subject to a muru of beating as consequence for those of his own party who died during the battle and as an expression of the grief of their relatives. In much the same way that other muru were met, such a war party leader would accept the beating as an honorable consequence of his position, a restoration of balance and equilibrium for the deaths under his watch.[284]
4. Gifts and Gift exchanges
One of the most important rituals in Maori society was that of the gift exchange. Gift exchange took primarily two forms: one for economic gain, the object being to obtain a needed or desired item of practical function from the exchange; the other for ceremonial purpose, a social gesture of goodwill being the primary function.[285] In fact, the gift exchange was the most common type of Maori contract, in which a gift giving necessitated a return of equal or greater value.[286] The actual items exchanged varied a great deal and could range from physical gifts such as tools, ornaments, and building materials to the exchange of services or hospitality or meals. [287] Typically, the economic exchanges were for food items whereas ceremonial gifts were most often greenstone heirloom, particularly at funerals.[288] And, just like other processes governed by utu, gift giving was a cycle, a never ending attempt to achieve a balance and equilibrium between individuals, groups and even with the natural world.[289]
The general Maori attitude toward gifts was that “it was always better to give, because [one knew that gifts] would come back:” a greenstone heirloom once given would often be returned to the giver’s family in some later generation..[290] Further, the anticipation of receiving something of greater value at some later date made gift giving quite agreeable to both parties.[291] One reason for giving a more lavish return gift was to increase the giving community’s mana. And, even though the gift of a greater value than the recipients could repay would humiliate them and subordinate them, such a gift still resulted in the growth of the givers’ mana and, incidentally a loss of mana to the less wealthy receivers.[292] As the gift-giving cycle continually escalated, eventually, the goal was to develop a social relationship tantamount to an alliance in which, through the trust built up over generations of exchange, each community could rely on the other in times of need. Once such a rapport had been established, failure to give immediate aid might result in reprisal.[293]
To ensure that utu was followed, various mechanisms operated by virtue of Maori tikanga or custom.[294] The most influential constraint on the system was the notoriety imbued upon those who did not make the tiki or correct response.[295] Such dishonor would affect the individual and family reputation creating a disincentive to do any future exchanging with that group, a severe consequence when certain items could only be attained through trade.[296] Another method for maintaining the reciprocal balance of utu was belief that supernatural punishment, particularly in the form of physical handicap or illness, would find those who did not reciprocate.[297] The way that the supernatural punishment functioned is illustrated by the following explanation by a Maori man named Tamati Ranapiri:
“Suppose that you possess a certain article and you give the article to me without price. We make no bargain over it. Now I give [it] to a third person, who after some time ... makes me a present of some article. Now that article that he gives to me is the hau [vital and supernatural essence] of the article I first received from you and then gave to him. The goods that I received for that item I must hand over to you...[because] were I to keep such equivalent for myself, then some serious evil would befall me, even death.”[298]
Finally, although many of the supernatural punishments could be warded off by particular witchcraft precautions, the damage to reputation by failure to comply with utu was immediate and had no magical remedy.[299]
Since the gift exchanges never involved barter in the sense of immediate negotiation as to the return price for the item given,[300] it is hard to assign specific values to the items exchanged.[301] And, it might have also been very difficult to have satisfactory exchanges had it not been for the common practice of hinting at the object expected or desired in return.[302] The subtle form of the hint not to be misunderstood, saying “I am very fond of that” was tantamount to an outright request for it.[303] In one instance, Te Reinga a man of Kaitaia was so “greedy” a “gourmand” that whenever a person carrying food passed him, he would exclaim his fondness for that item such that they could not but give him some. Over time, his notorious abuse of utu resulted in a war party slaying him.[304] Firth’s analysis of this wittily suggests that Maori principles favored killing someone over injuring his feelings by a refusal to share in this manner.[305] Perhaps the explanation is not quite so counterintuitive: it seems entirely consistent that Maori would not be able to refuse such a request because it would lower their collective mana. Further, war parties were usually initiated as a result of muru. If such were the case, then the dispute would have been well known and discussed in the community. Generally, through korero (dialogue) disputes could be settled by some compromise between the parties. It is likely that if Te Reigna had been willing to counter-gift those from whom he had received food, his life and mana would have been spared.
Another way that gift exchanges came to be satisfactory to both parties without a negotiation process was through repetition of exchange for the same items.[306] Extra-communal exchanges commonly involved one type of food for another: thus coastal inhabitants gave seafood while inlanders provided with birds, eels, rats, and other items collected from forest areas.[307] Intra-communal exchanges more commonly involved services or goods made by specialists such as difficult to make tools.[308]
III. Conclusion.
In the webbed book, A Glimpse into the Maori World, a serious of in depth case studies derived a long list of some principles that govern Maori legal interactions.[309] Some of the more central ones are listed below to help sum up the concepts, values, ideology, philosophy and doctrines governing relationships in the Maori world.
Kaumatua (elders) act on behalf of the collective group when a transgression of tikanga (cultural values) affects others in the community. Because Maori society is communal, the collective group must take responsibility for the actions of individual members, good or bad.
• Individuals represent their whanau, hapu, and iwi and collective rights often supersede individual ones in the same way that hapu rights supersede whanau ones.
• Parents and the whanau are responsible for protecting children from spiritual, physical, mental or emotional harm.It is the responsibility of the whanau to teach children the Maori tikanga and the responsibility of the kaumatua to teach young adults appropriate behaviors dictated by the tikanga.
• Gifting land to or naming it after another group recognizes the donee’s mana, securing alliance between the groups and cementing the peaceful relationship between the parties..
Utu operates as a mechanism for sustaining Maori values, ensures later reciprocity of gifts, in the form of muru maintains law and order in upholding the important balance between tapu and mana. Gifts of greenstone symbolize permanence between the parties
• Mana, central to relationships between individuals and groups, is the responsibility of all members of the community to maintain and increase.
This list represents a sampling of the ideals from which Maori customs derive and out of which disputes are settled. Through example, education, and a variety of informal and formal relationship protocols, Maori kept these principles as the standards by which their actions were measured.
Appendix A: Glossary * for a more comprehensive glossary of Maori language see
• Aotearoa - Literal meaning, "Land of the Long White Cloud"; Original name of New Zealand
• Hapu – extended family grouping (usually several hundred)
• Hui - Meeting, assembly
• Iwi – literally “bone”; comprised of several Hapu; analogous to the English “tribe”
• Kainga – undefended village
• Kaupapa - Rules/ norms
• Kawai tipuna - Revered ancestors Whakawa – analogous to a trial
• Korero – a conversation
• Korero tawhito - Ancient traditions, oral traditions
• Kaumatua - Respected elder/ elders
• Mana - Prestige, power, authority
• Marae - Enclosed space in front of a house, courtyard, village common.
• Muru - Confiscate, recompense
• Pa - defended/fortified village
• Puremu - Adultery
• Rangatira - Chief
• Tapu - Sacred, restricted, prohibited
• Taurekareka - Slave, servant
• Tikanga – Customs
• Tipuna – ancestors
• Tohunga - Expert
• Tutua – commoners
• Utu – principle of reciprocity or exchange
• Waka – largest kin grouping – the aggregation of several Iwi; or canoe or boat.
• Wananga - Debate, discuss
• Whakapapa – genealogy or the principle of descent
• Whakama - Shame, embarrassment
• Whakawa - Accuse, bring a formal charge against
• Whanau – loosely: “family” (smallest kinship grouping; always fewer than 100 members)
• Whare - House
• Whare runanga – large meeting house in the center of the village
• Whenua – land
Appendix B: Maps

Picture 1: Society Islands Picture 2: Relationship of Society Islands to N.Z.
(available at

Picture 3: Journey to Aotearoa
Available at

Picture 4: Regional Map of New Zealand
Available at

Picture 5: New Zealand
Available at


Firth, Raymond. Primitive Economics of the New Zealand Maori. Stephen Austin and Sons,
LTD., Hertford (1929).

Hawthorn, H. B. The Maori: A Study in Acculturation. Vol. 46. No. 2, Part 2. Menasha,
Wisconsin: George Banta Publishing Company (April, 1944).

Howard, Bradley Reed. Indigenous Peoples and the State: the Struggle for Native Rights.
Dehalb, Illinois: Northern Illinois University Press (2003).

Paul, Ramari (coordinator). A Glimpse into the Maori World: Maori Perspectives on Justice. Available at

Himona, R.N. From Hawaiki to Hawaiki: The Maori People of Aotearoa/New Zealand. Available at


[1] Firth, Raymond. Primitive Economics of the New Zealand Maori. Stephen Austin and Sons, LTD., Hertford (1929).
[2] Information on all of the authors in the seventh paragraph of the Introduction available at
[3] Firth, 330-359.
[4] See part 1: Traditional Maori Concepts available at
[5] Hawthorn, 11. See pictures 1 and 2 in Appendix B.
[6] Howard, 178. See picture 3 in Appendix B for migration route.
[7] Howard, 178; Hawthorn, 11. See pictures 4 and 5 in Appendix B for maps of New Zealand.
[8] Howard, 178.
[9] Hawthorn, 11.
[10] Firth, 36.
[11] Firth, 42, 45.
[12] Firth, 47.
[13] Firth, 47.
[14] Firth, 61, 64.
[15] Firth 61.
[16] Firth, 52, citing Best’s method of dividing the Maori.
[17] Firth, 53.
[18] Firth, 52.
[19] Firth, 52.
[20] Id.
[21] Firth, 77.
[22] Id.
[23] Firth 77, 78.
[24] Firth 77-79.
[25] Firth, 78.
[26] Firth, 78, 82.
[27] Firth, 78.
[28] Id.
[29] Firth, 80.
[30] Firth, 82-83.
[31] Firth, 85.
[32] Id.
[33] Id.
[34] Firth, 96.
[35] Firth, 96, 342.
[36] Firth, 97.
[37] Id.
[38] Id.
[39] Firth, 99.
[40] Firth, 97.
[41] Firth, 98.
[42] Id.
[43] Id.
[44] Firth, 99.
[45] Firth, 99; Paul,
[46] Howard, 178
[47] Firth, 99.
[48] Id.
[49] Paul,
[50] Paul,
[51] Mana—“life force associated with ritual power and high social status” (see Encarta® World English Dictionary [North American Edition] Bloomsbury Publishing Plc.(1998-2003)). OR mana—“prestige, power, and authority” (see the Glossary for A Glimpse into the Maori World available at OR mana—“authority, prestige, influence, psychic power” (See Firth, 244).
[52] Paul,
[53] Waka means both the physical canoe and the group of people descendant from those who migrated in that canoe. (
[54] Firth, 101.
[56] Paul,
[57] Firth, 110.
[58] Id.
[59] Firth, 106.
[60] Id.
[61] Paul,
[62] Id.
[63] Id.
[64] Id.
[65] Firth, 106.
[66] Id.
[67] Firth, 111.
[68] Id.
[69] Id.
[70] Firth, 114.
[71] Id.
[72] Firth, 114, 115.
[73] Hawthorn, 50.
[74] Id.
[75] Hawthorn, 52.
[76] Firth 115.
[77] Id.
[78] Id.
[79] Id.
[80] Id. at note 1.
[81] Firth, 106.
[82] Firth, 107.
[83] Id.
[84] Id.
[85] Firth ,108.
[86] Id.
[87] Firth, 111.
[88] Firth, 111, 112.
[89] Firth, 112.
[90] Id.
[91] Firth, 91; Paul,
[92] Firth, 92; Paul,
[93] Paul,
[94] Id.
[95] Id.
[96] Id.
[97] Id.
[98] Firth, 95.
[99] Id.
[100] Paul,
[101] Firth, 201.
[102] Firth, 95; Paul,
[103] Firth, 118.
[104] Firth, 117.
[105] Paul,
[106] Id.
[107] Firth, 118.
[108] Paul,
[109] Id.
[110] Firth, 118.
[111] Firth, 93.
[112] Firth, 120.
[113] Firth 119.
[114] Firth, 95, 119.
[115] Firth, 120.
[116] See note 47.
[117] Paul,
[118] Firth, 260.
[119] Paul,
[120] Paul,
[121] Id.
[122] Id.
[123] Firth, 260.
[124] Firth, 202.
[125] Paul,
[126] Id.
[127] Id.
[128] Id.
[129] Paul,
[130] Paul, Interestingly, the word tikanga comes from the word tika, meaning true, right, proper, honest, or just.
[131] Id.
[132] Paul,
[133] Firth, 331.
[134] Firth, 335.
[135] Id.
[136] Id.
[137] Firth, 332.
[138] Firth, 333.
[139] Firth, 332.
[140] Firth, 334, 338, 345-346, 349.
[141] Firth, 334.
[142] Firth, 338.
[143] Firth, 346 note 1.
[144] Firth, 349.
[145] Firth, 345-346
[146] Firth, 332.
[147] Firth, 334.
[148] Firth, 334.
[149] Firth, 332.
[150] Firth, 332-333.
[151] Firth, 333.
[152] The extensive custom of reciprocal exchange or utu will be discussed at length later in the paper
[153] Firth, 334.
[154] Id.
[155] Id.
[156] Firth, 333.
[157] Id.
[158] Id.
[159] Firth, 335.
[160] Firth, 333.
[161] Firth, 332.
[162] Firth, 336.
[163] Id.
[164] Id.
[165] Id.
[166] Id.
[167] Firth, 339-340.
[168] Firth, 339.
[169] Id.
[170] Id.
[171] Id.
[172] Firth, 340.
[173] Firth, 339.
[174] Id.
[175] Firth, 340.
[176] Id.
[177] Firth, 339.
[178] Id.
[179] Firth, 341.
[180] Id.
[181] Id.
[182] Firth, 341-342.
[183] Firth, 349.
[184] Firth, 344.
[185] Id.
[186] Id.
[187] Id.
[188] Firth, 345.
[189] Firth, 349.
[190] Id.
[191] Id.
[192] Id.
[193] Id.
[194] Id.
[195] Firth, 350.
[196] Id.
[197] Id.
[198] Id.
[199] Firth, 111.
[200] Firth, 350.
[201] Id.
[202] Id.
[203] Id.
[204] Firth, 349.
[205] Firth, 112.
[206] Firth, 343.
[207] Id.
[208] Firth, 342.
[209] Firth, 343.
[210] Firth, 342.
[211] Id.
[212] Firth, 343, 344 note 2.
[213] Firth, 343.
[214] Firth, 343-344.
[215] Firth, 345.
[216] Id.
[217] Firth, 343.
[218] Firth, 344.
[219] Firth, 343.
[220] Firth, 345.
[221] Firth, 346.
[222] Id.
[226] Firth 367
[227] Firth 367
[228] Firth 367
[229] Firth 377;
[230] Firth 377
[231] 377;
[233] 377-8.
[234] 378;
[235] Paul,
[236] Paul,
[237] Paul,
[238] Paul
[239] Firth, 381.
[240] Id.
[241] Paul,
[242] Id.
[243] Id.
[244] Firth, 381.
[245] Id.
[246] Firth, 382.
[247] Id.; the totara tree is a tall, coniferous, New Zealand native tree with a lightweight, dark red, durable wood. (see Encarta® World English Dictionary [North American Edition] Bloomsbury Publishing Plc.(1998-2003).
[248] Id.
[249] Paul,
[250] Id.
[251] Id.
[252] Id.
[253] Firth, 392.
[254] Paul,
[255] Firth, 393.
[256] Id.
[257] Id.
[258] Id.; Firth, 393-394.
[259] Paul,
[260] Paul,
[261] Id.
[262] Id.
[263] Id.
[264] “He whakahou rongo wahine he tatau pounamu” – one of the Maori Proverbs.
[265] Paul,
[266] Firth, 394; Paul,
[267] Paul,
[268] Id.
[269] Id.
[270] Firth, 394.
[271] Paul,
[272] Firth, 394; Paul,
[273] Whakawa – “accuse, bring formal charge against” (see Paul,
[274] Paul,
[275] Id.
[276] Paul,
[277] Id.
[278] Id.
[279] Id.
[280] Paul,
[281] Id.
[282] Id.
[283] Id.
[284] Id.
[285] Firth, 395.
[286] Paul,
[287] Id.
[288] Firth, 395.
[289] Paul,
[290] Id.
[291] Id.
[292] Id.
[293] Id.
[294] Firth, 403, 411; Paul,
[295] Id.
[296] Id.
[297] Paul,
[298] Firth, 411.
[299] Id.
[300] Firth, 403.
[301] Firth, 404.
[302] Firth, 405.
[303] Id.
[304] Id.
[305] Id.
[306] Id.
[307] Paul,
[308] Id.
[309] Paul,