This chapter compares pre-contact land transfer with subsequent land transfer in the contact period, in defence of the premise that Maori understood that when Pakeha individuals, or after 1840, officials of the government, traded for land, that land was permanently alienated. It is not history that dictates this topic, but late twentieth century politics; the reason it is considered here is because, under the terms of the tuku whenua thesis, which became influential in that period, the view that land transfer was not permanent in Maori eyes achieved the status of a dominant idea. The chapter does not consider parochial post-sale arrangements negotiated in particular transactions, neither does it consider questions of the morality of Crown purchase, although these are inherent in the scale of purchase. Instead, it aims to establish the general principle of the permanence of land transfer in the pre-colonial period, through an examination of early interaction between Maori and Pakeha in the Bay of Islands area, where land transactions were most numerous. The focus on the pre- Treaty period is designed to show that the permanence of land transfer to Pakeha was established before 1840.
The chapter will then argue that historical and linguistic evidence for pre- modern Maori society does not support the tuku whenua thesis. However such argument has not been fatal to its cause, because the thesis is a conceptual adventure rather than an historical argument. While it makes claims about ‘tradition’, it is in fact based on logical propositions about the period of contact, and these must now be considered. The propositions on which tuku whenua is based can be summarised as follows:
(1) as there was no concept of sale in pre-modern Maori culture, early transactions which Pakeha would have understood as the purchase of the freehold would have been considered by Maori in their own terms as allocations of land to
outsiders accorded the status of conditional membership of the tribe, or gifts to forge a new tribal alliance, or to recognise past support.
(2) the verb tuku,‘give/convey/transfer/send’(etc), in early land deeds and
documents concerned with land transactions with Pakeha shows that Maori did not consider such land ‘sold’, because ‘giving’ implies ‘gift’. Therefore he tuku whenua, literally ‘a land giving, conveying, transferring, sending (etc)’ is a traditional ‘gift exchange’, and not a commercial transaction.
It is important to note at the outset the static and contextless assumptions of these propositions: the applicability of the tuku whenua thesis to post-Treaty land transactions depends on Maori not learning anything new in three generations of interacting with foreigners, and therefore not changing their ideas and practices. tuku whenua assumes that Maori culture was very little penetrated by the west. This seems inconsistent with the course of nineteenth century history, and, indeed, the whole Polynesian response to western contact. It posits a land of ironclad innocence at best, and leaves dangling the question of why Maori should be so unaware and incapable of learning.
Tuku whenua has also not been argued from historical linguistic data, but from a twentieth century linguistic standpoint. In the early records tuku whenua does not appear as the name of an institution of land gifting. While the silence of the literature would seem to undermine the case, in light of the volumes of Maori information available for other institutions such as tapu, mana, utu and so forth, tuku whenua has survived this difficulty. The main reason lies in the history of the verb tuku, which is a word for any action of transfer. Tuku appeared in connection with land in the earliest extant lists of the bases of Maori land ownership. It is important to note, however, that none of the familiar phrases of land tenure (e.g. take tipuna, take raupatu), including take tuku, are found in the traditional Maori literature. Where they do appear is in commentaries written by early English collectors, notably Edward Shortland and Richard Taylor. The activities of such men reflect the normal ‘scientific’ aim of Victorian ethnographers to reduce native custom to categories decided upon by themselves. The lists of the bases of traditional land tenure they compiled are themselves an intrusion of western thought, and they are the foundations of modern understandings of traditional land tenure.1
1
While there is no evidence that the practice of making abstract lists of the bases of land tenure was a Maori one, it seem reasonable to assume that the ethnographers were recording the gist of what their informants said. There is, therefore, no reason to reject take tuku (and the rest) as descriptions of how people came by their land. However the relationship between nineteenth century take tuku and modern tuku whenua, is overstretched. Take tuku refers to history – it tells a story of how land originally came into the ownership of a descent group. Take tuku was a term that validated ownership; axiomatically it did not suggest that that ownership was contingent. The tuku whenua thesis, by contrast, obviates the traditional concept of ownership, making it temporary by retaining authority in the hands of the donor. The circumstance and protocols of exchange in Maori society
Two distinctions will be pursued in this examination: the difference between gifting and trading, and between the transfer of objects and the transfer of land. The major, organised inter-group gifting event in Maori society was the feast (hakari), as abundance of prestigious food was the sign of success and power.2 The hakari was described by Maori as a feast, not as a gift; it was designed to reflect the prestige of the hosts, and to honour guests. It is, perhaps, difficult for a more complex society to grasp the enormous status of food as a measure of wealth. It can, however, be assessed visually in early paintings of storehouses, and in museum survivals that show that storehouses were the most fully carved structures in the pa. Inter-tribal feasts were relatively uncommon because they required lavishness; food was amassed over months or even years for a major event.
The gift of the feast, at its grandest in the kaihaukai, is well represented in the traditional literature, as is the rarer case of the gifting of prestigious or rare objects or goods, or objects where the value of the gift lay in the mana of the giver rather than in the object itself.3 Gifts of objects might be inspired by occasion, such as a
presentation at a funeral, or they might be a spontaneous reaction to a moment. Gift- giving in Maori society was not tied to a seasonal or ritual calendar but to social relationships and politics. Its institutional aspect lay in the inescapable obligation a
2
See Ann Parsonson, ‘The pursuit of mana’, p.140, in W. H. Oliver & B. R. Williams, eds.,The
Oxford history of New Zealand. Auckland: Oxford University Press, 1981, pp.140-167.
3
At the lower end of the scale, acts of benevolence or charity, such as sharing food with the hungry, seem to have been common. For a discussion of gifting, see Raymond Firth, Economics of the New
gift placed on the recipient;4 perhaps the most important characteristic of gifts is that they were never free. Rather, they were statements of power and political disposition that, in the terms of Maori culture, required a return. While recipients of a gift understood the obligation of return, the symmetry in the exchange rarely lay in temporal simultaneity. Gifts might be returned (or recompensed) years, and
sometimes generations, later. For example, Kawerau people gave a mere called Hine- nui-o-te-patua to Ngati Paoa. Eight generations or about two hundred years later Ngati Paoa gave it to Nga Puhi, who held it until 1860. The mere was then returned to Ngati Paoa, who presented it to Governor Grey. In all its journeys, the purpose of this particular mere (and its mana) was to cement peace.5 Such specificity underlines the political purposes of gifting across tribal lines. The value of a gift increased in proportion to the length of its history, that is, the span of time in which the exchange remained incomplete.6 The temporal one-sidedness of inter-group gifting means that the term ‘gift-exchange’ used by proponents of tuku whenua is seriously misleading in respect of the culture of pre-modern Maori society. Its use in part reflects a failure to extricate this term from the influence of the economic anthropology of traditional Pacific societies. Malinowski’s Trobriand Islands ‘gift-exchange’ describes a
Melanesian custom for the distribution of surplus which bears little relationship to the Maori situation. Maori gifting was not an economic institution and a particular gifting partner was not dictated by tradition. A Maori gift was more like an astronomer’s black hole, small but dense with power. This power consisted of the ability of the gift to create the political shape of the future (or in traditional Maori terms, to reinforce ad fulfil the authority of the past, which was the corrective function of politics). In a society defined by kinship, an inter-group gift challenged nature by creating a simulacrum of blood relationship between two groups who were either unrelated, or whose degree of relationship was too attenuated to create a reliable bond. A
4
The translation of meaning is a problem in this discussion. The noun koha (gift) is rarely found in oral narrative, while the variability of the terms kura and taonga would suggest that a gift in Maori is not be the same as a gift in English.
5
Firth 1959, p.415. Gifting was practised by the post-1840 government as an appreciation for services rendered. For example, in wartime 1863 the Waikato Maori who helped the government retrieve some timber were rewarded, the women with an annual pension of five pounds, and the men with an engraved silver watch; AJHR 1865, E1 No.44, p.19, Bell to Wiremu Te Wheoro, 23 March 1863. Needless to say, such gifts were not considered temporary by Maori.
6
The necessity of return was, however, absolute, even in domestic situations at the other end of the scale. A proverb, ‘the wandering legs of Tokoahu’, was applied to people who accepted gifts but never returned them: Tokoahu was cursed for his behaviour, and died; George Grey, Ko nga whakapepeha
prestigious gift therefore set up a relationship and an obligation to which both groups were tightly bound. It was a major exercise of power.
If gifting in Maori society expressed politics between the tribes, between Maori and Pakeha the exchange of goods was first driven not by economic motives but by the universal human quality of curiosity. Trade between Maori and the earliest foreign travellers, most famously Captain Cook, gained an unstoppable momentum, even although violence at first frequently accompanied the exchange of goods. The market became more peaceable as it got more serious: Maori had too much to lose by bad behaviour when they were negotiating for desirable and increasingly necessary goods such as guns, iron and tobacco. By the time that foreigners sought to establish permanent residence among Maori, trade was the main reason for welcoming them in, but gifts were used to attract them. Objects and food were constantly exchanged between Maori and their visitors as a signal of mutual goodwill. When the missionary Samuel Marsden visited Waitangi in 1814, the people welcomed him with roasted fish.7 Hongi Hika shot a duck and speared a pig for his guests.8 Other people of the village gave the party cloaks and scraps of letters from the Boyd, a ship that Maori had earlier attacked and burned, and Marsden made gifts of tea, bread and sugar in return.9 When he went on to the Hauraki, Marsden presented the locals with ship’s biscuit and wheat. Marsden’s companions began a full-scale trade fair, with Maori trading cloaks for fish hooks, pieces of iron and gannet feathers.10 This is evidence that gifting co-existed with trade; they were not mutually exclusive activities, but overlapping, and somewhat undifferentiated on the surface. Under the surface, however, lurked the regulator: utu, the score-keeping principle of fair play and balance that was the Maori concept of justice.
However, if trade between Maori and Pakeha before 1840 shared some of the characteristics of gifting, the two types of transfer of goods can be broadly
distinguished. The main distinction is simultaneity. In trade, the exchange of goods normally took place as soon as the deal was closed. Both traders (kaihokohoko) viewed the goods, haggled over relative values and decided whether to proceed, that is, to hokohoko (trade/exchange/ barter). The reduplication in the verb hokohoko
7
Anne Salmond, Between worlds; early exchanges between Maori and Europeans 1773-1815. Auckland: Viking, 1997, p.468. 8 Salmond 1997, p.477. 9 Salmond 1997, p.480. 10 Salmond 1997, p.485.
captures the mutuality of this situation by suggesting the to and fro of the process of exchange. The crucial distinction between trade and gift is that a trade between non- related individuals created a temporary relationship which ended with the act of exchange. By contrast, a gift between related people reinforced kinship within the group. If the gift involved outsiders, it extended the web of kinship outside its normal strict borders. In both cases the gift projected the obligations of relationship into the future. This was not without risk, but the knowledge of risk was an essential
component of the significance of the gift. It made it part not only of the history, but of the future of the group.
The ownership of land was contestable within the terms of pre-colonial Maori society. Territories were gained or lost through conquest. Land changed hands in peacetime, in pursuit of political alliances, and it was also traded for major
manufactures such as cloaks and waka. Within the group, rights to productive land could be revoked as punishment for violations of the code of justice. When speaking of civil land transfer in the pre-contact period, convention dictates that the terms ‘sell’ or ‘purchase’ are avoided in favour of the neutral ‘transferred.’ The avoidance of English terms of the market underlines the absence of a money economy in Maori society; in English terms, Maori could not ‘sell’ land. This, however, is simply a way of saying that Maori culture was different from that of the British; it does not mean that land transfer within that culture could not fulfil the conditions of permanency that the British applied in their own culture. Yet that implication now hangs heavily over the subject of Maori land tenure. ‘Transfer’ or ‘exchange’ is eclipsed in the modern historiography of pre-colonial society by an emphasis on situations where land is ‘gifted’. The frame of gifting has dictated and narrowed the consideration of land transfer in any period. Now, any terms of description of Maori land tenure that conjure the idea of permanent alienation in the colonial period invite denial, on the grounds that they misrepresent traditional practice. The cautious term ‘property exchanges’ crowds out the words ‘sale’ and ‘purchase’, especially in the literature produced by Waitangi Tribunal claims. This situation has arisen out of the realisation of the failure of governments to fulfil the spirit of the Treaty of Waitangi rather than its letter, which has resulted in emotional support for any reading of Maori property rights that can be used to argue for the return of land that passed into the hands of the colonial government. It may be that these terms have been avoided in the literature through fear that a choice for change in the fraught area of property rights might work
to lessen state responsibility for the scale of Maori dispossession over the whole of the nineteenth century. The opposite, however, is true, and makes an important point: change is what created the bond with Pakeha that brings morality into the equation.
Putting the history of injustice aside, however, it is not clear how different the categories of (Maori) exchange and (colonial) sale/purchase are in principle, when in both cases rights were permanently transferred. There may not be as much distance between Maori culture and British or state thinking as is implied by conventional linguistic differentiation. The oral literature on pre-contact society does not make clear how frequently peace-time land transfers occurred, because it focuses on issues of power and justice (mana and utu) in inter-tribal relations; it is an heroic literature, and it remembers episodes of war. An inevitable result of the heroic focus is that in tribal histories conquest rather than political negotiation appears as the usual reason for land transfer. Cases of civil transfer between Maori that survive in the post-1840 Maori documentary record, and later Native Land Court evidence suggest, however, that it was probably not the case that most land transfers in Maori society were forcible; it is simply that they were not edgy enough to be passed down in tribal memory.
The modern academic literature operates at a large remove from both pre- contact Maori politics and the Maori oral literature. It de-emphasises inter-tribal relationships as the measure of Maori land tenure in the pre-contact period, and, as in the case to be considered here, as the measure of the difference between Maori and British perceptions. Instead, the domestic situation within the tribe is made the basis of modern readings, and, moreover, the test of the difference between Maori and British models. This poses a difficulty, because in Maori domestic life, ‘land rights’ were, as discussed in Chapter Three, not about land at all, but about membership of the group: a corollary of such membership was the conferral of land for subsistence farming, which right expressed, but did not define, inclusion. The confusion arising from cultural misapprehension suggests a need to look again at the historical evidence for the development of land transfer from Maori to Pakeha. When they first engaged in such transfer, a domestic focus on the life of the group was certainly the basis of Maori understanding. The transfer did not carry the significance that it might have had to the English; an exchange was negotiated, but not a sale. What Maori granted to Pakeha was the right to live among the tribe. Land for cultivation was, as it always had been, the outcome of acceptance into the life (and protection) of the tribe. As an
informant said in a report that considered early Pakeha claims to land : ‘[A Pakeha who traded for land] was considered as one of the tribe, among whom he had cast his lot.’11 It would therefore be inaccurate to analyse this situation in a language of sale/purchase, regardless of the words Pakeha used at the time. However, the period