When Custom Becomes Law: Re-approaching Land Tenure through Recent Anthropology and the Cook Islands Land Titles Court

Abstract

This paper uses the current debate about the role of custom in determining the future of land tenure in the Cook Islands as an entry-point for a historiography of the recognition of indigenous land tenure by an imposed legal system. First, this paper develops a theoretical approach drawn from new developments in anthropology and its understanding of colonialism. Second, it argues for an alternative conception of Cook Islands cosmology as it relates to land and the natural world. Finally, it examines how this cosmology was subsequently circumscribed into a narrow framework of possibility by the establishment of a Land Court in 1902. Taken together, the paper aims to destabilize the coordinates of contemporary debates about the role of custom and tradition in the future of land law in the Cook Islands in the interests of opening up new possibilities and approaches.