19

A.—3

(c.) In a letter written by Colonel Gudgeon (Resident Commissioner and Chief Judge of the Native Land Court) dated 30th July, 1909, to the people of Arorangi, he stated :— It is therefore with regret that I have tei comment on the foolish behaviour of the;, Mataiapos of Arorangi. You Mataiapos assume that you have a right to eleot the Tinomana Ariki -a right that you certainly have not had for the; last hundred years—and you deny the right of the Ariki family to select bhe elder-born of that family, anel you have done those things knowing full well that the districts of Takitumu anil Avarua have at, least as much interest in the selection of Tinomana as you yourselves have. It will be noticed that the statements (a) and (b) are quite different from the; mode set out under the regulations and tho Federal Ordinance above referred to. There seems to be considerable conflict of opinion as to the relative rights and powers of the Ariki himself, his Kopu Ariki, and the rangatiras and Mataiape>s regarding the; true mode of election of a new Ariki. This has no elembt arisen because in the past there have been few disputes in regard to succession, and it is ejuite likely that practices have grown up and been adopted as the proper custom which are not in accord with the laws and customs of ancient times. In considering the powers of the Mataiape)s it is necessary to refer to the time whem Tangiia anel Karika first arrived in Rarotonga from Avaiki. Tangiia came from Tahiti in the canoe called " Takitumu," and he had a largo number of Mataiapos, whom he appointed at sea, anel whom he re-established and appointed after landing in Rarotonga. He was really a fugitive, and the only member of his family with him was his adopted child Tai Tcariki, son of Iro. This child was afterwards appointed by Tangiia the Pa-to-Ariki-Upokotimi. This was done at Pukuru-vaa-nui. Karika, on the other hand (also a fugitive from Manu'a —Samoan Group), had no Mataiapos, and the emly member of his family was his daughter Mokoroa-ki-Aitu, whei at sea married Tangiia, and from this union the Taraare line has descended. Karika had 1.40 warriors with him, and also the; prie;st Takaia. Tangiia's strength, therefore; rested to a large; extent with his Mataiapos, especially as ho came without members of his family, of his immediate blood. He himself was, however, a powerful man; but the; relative powers of himself and his Mataiapos at that time can only be a matter of surmise. He afterwards sent for his son Motoro (Tinomana lino) and also Te Re;i (still at Takitumu). The Arikis of Karika, right clown to the time of To-Pa-Atua-Kino, had no Mataiape>s. At Te-Pa-Atua-Kino the family branedied, anel from there to the present time; the Karika Arikis have remained without Mataiapos. On tho Makea-nui branch the first Ariki was Pini (or Puna), anel he had no Mataiapos, and it was not until Christian times, as shown in paragraph 2, that the Mataiapos of Tupapa seceded from the Arikis of Takitumu and joined the Makea-nui. Pharoah's evidence is to the effect that thery joined Tinirau, but other writers assert it was Pori. The terms of this alliance aro not recorded, but it is hard, to believe that the Makea-nui, who was then, according to traditions, a fairly powerful man, would have; given oveir to the Mataiapeis complete power at all future times to take into their own hands the selection and appointment of new Arikis. The Makea-nui then had fairly numerous and powerful Kopu Ariki and rangatiras, and there, seems to have been no necessity for him to put himself and them wholly into the hands of the Tupapa Mataiapos, as alleged by Ngoroio's side, and particularly by Tepuretu. No doubt, by the alliance between himself and the Mataiapos, Makea-nui gaineel a fair amount of strength, because his district was extended to embrace the lands of the Mataiapos. Since the Cook Islands Act, 1915, came into force no will made by a Native has any force or effect with respect to his interest in any Native lands (see section 445). It is common ground that an Ariki holds certain lands by virtue of his office, and these lands are passed on to his successors in the office of Ariki. It is clear, therefore, that any will which affects the title or office of Ariki must also affect the Ariki lands. Section 445, therefore, appears to preclude the making of a will affecting the title or office of Ariki. Tho position appears to be that what in the past has been called a " will " of an Ariki was in reality only an expressiem of his wishes regarding the Ariki title, made in the presence e)f certain necessary witnesses who had a right to confirm eir dispute the same at the time, and which, if agreed to, would become a binding arrangement according to Native custom, and, as a matter of honour, one to be carried out in clue course after the Ariki's death. This appears to be the true custom, and it is one to which the Court can give effect even at the present day. It is not the giving effect to a will which is precluded by section 445, but tho giving effect to an arrangeiinent made in accordance with, and sanctioned by, Native custom from ancient times. In dealing with the will of Rangi Makea the Court does not consider it as a will made in accordance with European law and ideas, but simply as an expression of his wishes, an arrangement maele in accordance with Native custom such as has just been mentioned. Tho ejuestion then remains whether such arrangement was made in accordance with Native custom, and, as a matter of honour, should now be carried into effect. The real matter in dispute is as to the right of the Mataiapos to be present, and their power, if they should so wish, to veto any arrangement made by the dying Ariki with tho approval of his Kopu Ariki and rangatiras. The Court is now dealing purely with the position as it arises in connection with tho Makea-nui title. It wa,s contendoel by Tepuretu that tho Mataiapos had absolute power to decide the succession to the Ariki title. It has been shown that the Makea-nui title was established at the time of Pini, who had no Mataiapos, and it was not until Christian times that the Mataiapos ot Tupapa joined the Makea-nui Ariki. There is no record of evidence of tho terms of this alliance, but the Court cannot believe that the Ariki of that time gave himself, his Kopu Ariki, and rangatiras wholly over to the

4—A. 3.