Closing the year of 2016, indigenous peoples in Indonesia got a ‘present’ from President Joko Widodo (Jokowi). The government stipulated 13.122 hectare of indigenous (adat) forest in eight areas and one addendum of concession area. However, this achievement is still below expectation of some NGOs that work in indigenous issues, particularly AMAN that claimed around 8,23 million hectares of indigenous forests (Kompas, 2017). Despite it still below expectation, this policy taken by the government has legally recognized the living adat law and indigenous peoples’ rights within their customary areas. It is still a breakthrough. Moreover, it is also important to note that this victorious moment of indigenous peoples is earned through a long history of advocacy and reform strategies.
Historically speaking, indigenous peoples in Indonesia have experienced a long and systematic discrimination from both government’s actors and private companies, particularly in Suharto developmentalism era. Land grabs and force assimilation have jeopardised indigenous peoples’ rights until recently. Their traditional lives and local values in maintaining their land, natural resources and village stability have been considered as obstacles of state development. Thus the government, for the sake of development, must disregard ‘the minority’ in order to prosper ‘the majority’ through its ‘development’ projects.
When Suharto dethroned by the reformation movement rally in 1998, the practice of developmentalism has been lessened, but not necessarily eradicated. Despite the post-authoritarian governments amended the 1945 Constitution and changed some corrupt Acts and policies, the right of indigenous peoples remained undermined.
Indigenous peoples who consolidate in NGOs changed their strategy to the legal battle by submitting a judicial review case to the Constitutional Court in 2012, demanding the Court to divorce indigenous adat forest from state owned forest in the 1999 Forestry Law. The Court accepted the claim and declared some Articles in the 1999 Forestry Law were unconstitutional. The 2012 Constitutional Court decision was used as a stepping stone to obtain a legal status of adat forest and recognition of indigenous peoples’ rights. The summit of indigenous peoples strategy was the stipulation of adat forest stated above. However, I argue that there are still many challenges ahead for indigenous peoples, and there are many aspects that need to be addressed.
First, during post-authoritarian era, there have been strong movements of ethnicity-based politics in some regions in Indonesia. Some of the actors use adat identity as their political capital and to gather vote from villagers. There are several local leaders in indigenous communities who are affiliated with vested-interest actors. As a result, their internal stability is also ineffective due to strong interest within the village. This argument was strengthened by World Bank (2008), Beckert (2014) and Buana (2016) who found out that; albeit indigenous villagers can amicably settle their matrimonial and petty cases within their villages through their traditional dispute resolution, they are likely fail to settle a dispute with companies and vested-interest actors.
Despite the fact that within indigenous village, indigenous peoples have land tenure right to transfer ownership of their land only and restricted to fellow indigenous peoples, the practice is contradictory. Tribal leaders often transfer the land/forest to companies and vested-interest actors. This condition does exist in some indigenous regions, particularly the areas that have rich-natural resources. Judging from this condition, soft intervention from State courts and local government is realistically needed.
The government has made a correct policy by stipulating the legal status of indigenous forests, but its policy must also be balanced by protecting indigenous villagers and their tribal leaders from vested-interest actors. Clearly, central government cannot do all by its own. Thus decentralization should play its role. Local government, particularly at Regency level should have both preventive and curative approaches to protect indigenous peoples from vested-interest actors. In other words, there should be a dialogue-based partnership between indigenous villagers, local government and local NGOs. Without a good cooperation among stakeholders at local level, the stipulation of indigenous forest might be a backlash.
Second, despite the 1945 Constitution and Decentralization Law has clearly stated some differences between indigenous communities (volksgemeenschappen) and monarch areas (zelfbesturende landschappen), some local leaders tend to blur the differences and the conceptual borders between the two. The aim of this is to claim their monarchical authority over the areas. In order words, they use and capitalize adat argumentations for their own personal sake. This deviant practice should be rejected.
Furthermore, it is also important to re-examine the definition of adat law as living law; it is a contemporary law which still exercised and obeyed by the communities, with dynamic and flexible characteristics. Thus, a claim from traditional communities whose adat law has been long ceased, and want to be recognized as indigenous peoples and to have right over their lands/forests, should be rejected. This argument can also be used to refuse monarchical claim whose monarchical authority has been ceased. It is important to note that the aim of advocacy of indigenous peoples’ right is to protect and empower a contemporary (living) adat law and its communities, it is not to re-create an old law that had been ceased and abandoned. Adat law and indigenous peoples are contemporary and dynamic communities, the aim is not to awaken ‘zombies’ communities.
Third, conceptually speaking, the government of Indonesia still dichotomizes indigenous peoples into two categories: legally-based indigenous peoples and culturally-based indigenous peoples. The concept of the legally-based indigenous peoples (masyakarat ‘hukum’ adat) currently used by the 1945 Constitution and Acts might lead to discrimination because there will be some indigenous peoples whose laws and traditions are respected, but not recognized as legal entities by the State; and others whose laws and traditions are both respected and recognized as legal entities. Thus I argue that the concept of indigenous peoples must be generally understood as a cultural, political and legal entity.
Despite some weaknesses and challenges, Indonesia is in the right track now. The government has embraced a more inclusive development; an equilibrium between human right and development aspirations.