Legal Practitioner and Program Officer of Indigenous People Pillar, Program Peduli
[Disclaimer: the author’s view does not represent the views of the organization or DFAT]
Recognition and protection of indigenous people’s rights in the last decade experienced significant development. This can be seen since the birth of the Village Law (Law) that allows the existence of Indigenous Villages and recognition of customary forests by the Constitutional Court Decision No.35/2012.
This positive momentum was accompanied by the establishment of customary forests for nine indigenous communities by the Jokowi-Jusuf Kalla Government through the Ministry of Environment and Forestry on 30 December 2016. The recognition of the rights of indigenous peoples is a form of constitutional protection of indigenous peoples who have been deprived and neglected. But on the other hand, there is some concern among some about the tendency of the recognition of indigenous people’s rights to parallel the rise of destructive ethnicity sentiments.
Indigenous Peoples and Ethnicity
The context of ethnicity and its association with indigenous peoples is related to the reality of the diversity of “cultural identities” in Indonesia’s plural society. Ethnicity and indigenous people are closely related. The meaning of these two terms is related to emphasizing the focus point. Ethnicity contains a broad dimension as cultural identity based on similarity in race, mother tongue, and cultural identity.
Meanwhile, indigenous peoples are more to ethnic community groups in legal alliances or natural social units with their own legal system (customary law), which has original socio-political structures and rights to customary territories (ulayat rights). In addition, we need to emphasize that indigenous peoples are not static communities, but are dynamic in the flow of political, economic and cultural change.
Indigenous peoples experience social changes due to their encounters with modernity, especially their meetings with the state structure, both through coercive and persuasive methods. The meeting of indigenous peoples create socio-political dynamics in indigenous peoples and the state itself. First, changes in the political structure that adopts the state (or the state that adopts custom) by giving birth to hybrid institutions such as Desa Adat (Traditional Village). Second, changes in land (indigenous territories) tenure structures that experience a tendency to individualize customary land and or formalize communal rights.
It should also be noted that the meetings of indigenous-state communities do not all occur in a balanced and natural manner, but also in the situation of countries, dominant groups, and markets imposing their power on the existence of indigenous peoples, especially minorities. In the context of indigenous minorities, for example, many cases show that changes have occurred dramatically, especially in changes in land tenure structures through systematic appropriation by state law.
These changes will immediately erode the cultural identity of indigenous peoples quickly without being balanced with adaptability. As a result, extreme marginalization emerged as in the case of the Suku Anak Dalam in Jambi. On the other hand, custom is also used as a counterweight to the state (dominant structure). In this context, indigenous primordial identity is used to influence the structure of the state which create custom/ethnic-based socio-political boundaries.
For example, the Indigenous Village or Indigenous Peoples movement encourages the integration of custom into state structures that create the sorting of regions according to ethnicity boundaries democratically (Benda Bekmann; 2014 and Aragon; 2014). Positively, custom in this context becomes a kind of check and balances of the state in the administration of governance and resource management (Benda-Beckmann, 2014). However, ethnic and custom-based socio-political restrictions also contribute negatively, if interpreted narrowly in tribalistic sentiments.
Tribalistic sentiments are congruent with the struggle for resources in the name of ethnic primordial identity by the political elite. Tribalistic sentiments widen social differences, instead of encouraging democratic social cohesion among communities. Aragon (2011) stated that reform and decentralization gave birth to a shift of central power to the regions. This shift parallels the strengthening of indigenous primordial identity which during the New Order was suppressed in such a way.
In this context, the state does not directly fulfill the demands of the constitutional rights of indigenous peoples, such as rights to customary territories (ulayat rights), for example, but channeling ethnic sentiment and regionalism at the level of local politics. As a result, customary awakening does not contribute to the recognition of the constitutional rights of indigenous peoples, but strengthens the grip of the elite in the name of custom.
Preserving Diversity, Recognizing Rights
The spirit of the protection of indigenous people’s rights as formulated by the constitution is clearly mentioned as a tribute to the diversity (pluralism) of ethnic/custom identity, democracy and human rights. The constitution guarantees the diversity of social identities based on these custom by protecting the indigenous rights of indigenous peoples in the context of Indonesia’s plural society and prohibiting arbitrary acts of the state.
The constitutionality meaning of indigenous people’s rights has been explicitly explained in the decisions of the Constitutional Court regarding the rights of indigenous peoples and the Village Law. Tribalistic sentiment is an anomaly of the constitutional meaning of the rights of indigenous peoples. Tribalistic sentiment is a form of indigenous piracy by practical political interests.
It is time, the state fulfills constitutional debt to indigenous peoples by ensuring the protection of rights in a democratic, inclusive, and respect for diversity within the framework of “Unity in Diversity.”