Re-storying Māori Legal Histories: Indigenous Articulations in Nineteenth-Century Aotearoa New Zealand

Abstract

Re-storying Māori Legal Histories:Indigenous Articulations in Nineteenth-Century Aotearoa New Zealand Nēpia Mahuika (bio) ON FEBRUARY 13, 1883, while building a cookhouse at Whakawhitira in the Waiapu valley, the Ngāti Porou chief Hāmana Mahuika was callously shot and killed by a disgruntled member of his own tribe.1 Widely lamented as the “terrible” loss of a “law abiding” leader, his death caused shock and outrage in and beyond the local community.2 Writing of the tragedy more than half a century later, iwi (tribal) scholar Rewiti Kohere recounts that at the time of the funeral: tribes in their hundreds came to Whakawhitira to lament over the massacred chief. Mokena Kohere, with a number of his Ngāti–Hokopus, came armed, even with their guns loaded. When the party arrived on the banks of the Waiapu, overlooking the settlement of Whakawhitira, they gave a volley. The people across the river could hear the whistling bullets overhead, and, leaving the body, ran away. When the supply of bullets ran out the fiery chief and his followers crossed the river, and, as though nothing had happened wept over the dead chief who lay in state. In accordance with ancient custom anybody could be killed in atonement for the shedding of blood, especially in the case of a murdered chief.3 If anybody could be killed in penance for a “massacred” chief, then why was Hāmana Mahuika’s assailant tried in a Pākehā (white European) settler court and not dealt with by the Indigenous peoples in accordance with their own laws and customs? How could this have been allowed to happen when Māori for a large part of the nineteenth century had actively enforced their own “law,” particularly in isolated communities like the East Coast? These questions are asked here not to simply instigate an investigation of Ngāti Porou decision making regarding the law in nineteenth-century Aotearoa, but to offer a new starting point for analysis, in which a re-examination through Māori eyes unsettles and re-stories Eurocentric legal histories that have misrepresented or ignored Native histories on these shores. This essay, then, responds to the questions raised above, but considers them in intersecting layered issues, from Indigenous agency and decolonization to the varied realities of evolving Māori tribal frameworks that were embedded in and altered, both [End Page 40] deliberately and sometimes reluctantly, by local customs and traditions amid new spiritualties, laws, ideologies, and religions. This is a paper about Indigenous articulation—a Ngāti Porou and Māori questioning and re-storying of our own nineteenth-century legal experiences. A Māori rearticulation of legal history in our own country is, like many other strands of historical inquiry here, a much-needed endeavor. Histories of the legal system in Aotearoa New Zealand have, for too long, focused predominantly on Pākehā pioneering experiences, which Jacinta Ruru argues has been “used to endorse a new narrative of nationhood—a country founded and settled by the British.”4 It is a history that has long been narrated by the colonizer, decorated with discourses of paternalism and the myths of nation-making. Paul McHugh points out that this dominant New Zealand legal history “became the legitimating account of the state itself and, in justifying the institutions of state governance, became an essential ideological (if not propagandist) element in nation building. Events and individuals became described and assessed in terms of progress towards an eventual and inevitable constitutional form.”5 In contrast, Māori legal histories have largely been ignored by many in the discipline who have simply been “unwilling to treat Māori law seriously.”6 This attitude, Richard Boast admits, has long been driven by “the narrow positivism that has characterised not only the practice but the teaching of law in this country until recently.”7 In decolonizing the Eurocentric history of law in Aotearoa New Zealand, Māori scholars have emphasized the need to re-story the narrative. Ani Mikaere asserts that “a necessary starting point is to remind ourselves that Māori law existed here in Aotearoa for many hundreds of years before 1840.”8 More recently, Carwyn...