A.—3

18

The following is a summary of the old and present laws relating to the appointment of Arikis, and the settlement of disputes in regard to the Ariki titles :— (a.) Regulations were made by the Resident Commissioner, Colonel Gudgeon, on the sth November, 1905 (Cook Islands Gazelle No. 172, of the 9th October, 1905, at page 264), providing thus :— All Arikis, Kavanas, and Mataiapos shall hereafter bo elected by a majority of the tribe or family whom it is intended they shall represent, and no person outside such tribe or family shall take part in such election. A further provision was that — A candidate for election shall be chosen from children (or the near relatives in default of children) of the deceased Ariki, Kavana, or Mataiapo, unless it be shown that the deceased had no right to the office for which he had been originally chosen, or that the children of tho deceased were mentally or morally unfit for the position, of which condition the Resident Commissioner shall be the sole judge. (b.) A Federal Orelinance, No. 26, was passed on the 24th October, 1908, to regulate the election eif Arikis. The preamble is as follows : — Whereas, since tho annexation of the Cook and oilier Islaneis to the British Empire, the status of the Ariki has altered, anel the Ariki has now only jurisdiction as an hereelitary member of the Federal Council anel of the Island Council, wherefore it is aelvisable that on the death or removal from office of any Ariki the new Ariki should be chosen from tho best men of the Ariki family. This Federal Ordinance provided that any Ariki to be elected shall be chosen by tho unanimous veite of all the members of the Island Council. The; Island Council was given the powe;r to call before it an Ariki family or the people of any district to hear their views before choosing any person as Ariki. Section 2 of the Ordinance provided that— The person chosen for the Arikiship shall be of gooel character, anel of pure Maori blood, and a recognizee! member of tho Ariki family. The senior line of any Ariki family shall not be passed over without gooel and sufficient reason. The Rosielent Commissioner was given power, in tho event of any dispute between the members of the Island Council, to finally decide tho matter at issue. (c.) The; Coeik Islaneis Act, 1915, section 658, repealed all Ordinances, regulations, and either enactments anel laws whatsoever then in feirce; in the Cook Islands. ((/.) No provisions were substituted for the repealed Ordinance e)f 1908 except section 67, which, as already pointed out, only dealt with the constitution of Island. Councils. This meant that Ariki. successions in regard to Ariki land, and all other functions attached to the office of Ariki, except so far as the Island Council were concerned, were left to be determined according to Native custom, (c.) By the Cook Islands Amendment Ae;t, 1923, the; Native; Lanel Court was vested with jurisdiction to determine all disputes relating to the title of Ariki, and other Native chiefs. It is pursuant to this provision that this Court entered upon the hearing and determination of the dispute in question regarding the Makea-nui Ariki title. Two main questions arise in this case, viz. : — (1.) (a.) The right and power of an Ariki to devise his Ariki title by will. (b.) The rights and powers of Mataiapos regarding such a will, and generally in regard to the appointment of a now Ariki in succession to the decoaseel. (2.) Whether it is established that Ngoroio's line was definitely adopted into tho Karika family so as to preclude this claimant from succeeeling to the Ariki title of Makeanui. In regard to question No. (I), various opinions are recorded as to Native; custom. (a.) hi November, 1895, the Arikis' Council met as the Upper House of the Rarotonga Council and unanimously adopted a report drawn up by Vakatine and Teariki Taraare, and affirmed it as a true statement of tho old and unbroken law and practice relating to the succession of Arikis and the mode of election and installation. This report is set out in parliamentary paper A.-3 of 1896. It states that— Only upon the death of an Ariki is it settled who is to succeed to the title. It is the business of the priests anei Mataiapos of Rarotonga to select tho proper person to be Ariki of Rarotonga, and such selection is to be made only from the nearest relations of the Ariki deceased. Should any Ariki be chosen without all the Arikis, priests, anel Mataiapos of all the districts being present at the meeting, it must be proven satisfactory to them that the one chosen is a near relative of the Ariki deceased. If it is not so proven, the Arikis, priests, and Mataiapos from every part of Rarotonga shall meet together in one place, and it shall be for them to decide who is to be the new Ariki. The last words of a dying Ariki (will) : An Ariki may wish to appoint a successor on his or her death-bed. After the Ariki's death these words shall be carefully considered, and if it, is found that the party named as a successor is the proper heir such words shall be confirmed, not otherwise. This Court cannot agree with this report so far as it states that the, Arikis, priests, and Mataiapos of all districts have a right to choose a new Ariki. This clearly could not be ancient custom, for in the old days the districts were frequently at war with one another, and it is not reasonable to suppose that one district would go outside its own boundaries in regard to the succession to a deceased Ariki. Confusion has probably arisen in rcgarel to the selection and appointment of an Ariki, which is one thing, and the present-day ceremony of anointing and installation, which is quite a separate function. (b.) Mr. F. J. Moss, who was for a long time British Resident of Rarotonga, in an article; on the " Maori Polity in the Island of Rarotonga," published in the Journal of the Polynesian Society, stated as feillows :— The Ariki is supreme, but largoly controlled by tho Mataiapos. A now Ariki is named by the Arikis of the other tribes from the Ariki family, but the confirmation depends on the Mataiapos, as the installation rests with them. They regard the Ariki as only the first amongst equals.