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]
Indigenous people have long experienced discrimination, at least since the introduction of racial politics in the Dutch colonial period. At that time, the colonial government segregated the population into groups based on racial affiliation, which consisted of Europeans, Foreign Orientals, and Indigenous people. This population classification was a social segregation that formed racial social stratification.
After independence, Indonesia did not directly change the whole formation of colonial power. Airlangga Pribadi (2003) stated that the revival of tribalistic sentiments after independence was also destructive and could not be separated from Indonesia’s ambivalent history.
On one hand, the national journey tried to eliminate and want to break the history of the traumatic experience of the colonial era while building collective pledges for the realization of equality, social justice and democracy. But on the other hand, these normative ideals were not realized. Instead of realizing the imagination together as a nation that has a civilization, the reality of the state’s journey becomes a replica of the colonial era.
In this context, the issue of indigenous peoples is the sustainability description of colonial politics in third world countries, including Indonesia. At least seen in (1) indigenous peoples, especially minorities, are subculture groups that experience cultural and social isolation from dominant cultural groups; and (2) strict requirements for recognition of indigenous peoples’ rights have resulted in indigenous peoples, especially minorities, experiencing neglect of legal protection.
Discrimination of Indigenous Peoples
Neglect and discrimination are the heart of social exclusion of indigenous peoples. Social exclusion resulted in the lack of involvement of indigenous peoples in the development process so that it has the potential to reduce the quality of life of these groups.
There are two situations that lead to social exclusion of indigenous peoples. First, the weak recognition of indigenous people’s social and cultural rights and identities which results in ignoring the legal protection of indigenous peoples. Secondly, the weak recognition and neglect of legal protection that results in limited access of indigenous peoples to resources, both natural resources and economic and political resources.
Limited access to natural resources and economic rights has resulted in the seizure of resources by stronger groups, both dominant groups and business groups. Meanwhile, the limitations of political resources are related to the lack of political participation of indigenous peoples in state institutions which results in the isolation of these groups from political decisions related to development.
In general, the impact of social exclusion of indigenous people is structural impoverishment. The main reason is that the Indonesian legal framework has not completely cut the impoverishment cycle of the indigenous people.
In the context of indigenous peoples, it is shown that the legal scheme for the recognition of the rights of indigenous peoples is still conditional. Conditional recognition of the rights of indigenous peoples is further complicated by the recognition procedure, which is submitted to the political process in the area and is sectoral. With the weak economic, social and political capacity of indigenous peoples, recognition and protection of rights is still difficult to access.
The Opportunities of Village Law
The village is a social institution as well as a state institution that is the closest to indigenous people. The Village Law explicitly mentions a combination of social and state institutions that are autonomous (local self-governance).
As a leading formal institution, villages have a strategic role in the implementation of development, basic services, while creating conditions for local democracy, participation of social groups and social inclusion, especially in terms of social acceptance and recognition of indigenous identity at the site level. This means, the Village Law is a policy opportunity to solve the problem of social exclusion of indigenous peoples by integrating social institutions with state institutions.
In using village institutions as a strategy to encourage social inclusion of indigenous peoples, it is necessary to first understand the type of relations between indigenous peoples and village institutions. The relationship of village institutions with indigenous peoples has at least two types, namely homogeneous and heterogeneous types of villages.
Homogeneous village types have a relatively uniform tendency towards society and allow indigenous peoples to have the maximum quality of participation in integrating customary rights in the village as state institutions. For example, the Nagari community in West Sumatra.
Meanwhile, heterogeneous village types have a tendency in which indigenous people position are minority and inferior compared to other community groups. For example, Suku Anak Dalam community in Jambi.
Those two types of villages above are related to the strategy of establishing social inclusion of indigenous peoples in the village framework. In the first type, indigenous people have the potential to effectively strengthen village institutions and produce village policies that guarantee customary rights in the village.
Meanwhile, in the second type, there is a need for a democratic dialogue between communities to establish a shared understanding of the social barriers that will be solved by ensuring the quality of participation of minority indigenous groups in the policy-making process.
The above strategy is in line with the mandate of the Village Law, which is to guarantee the birth of social inclusion at the village level, both in terms of Village Arrangement, Village Government Organization, Village Development, and Village Regulation Making. In these aspects, the Village Law requires administrators of village government to work with democratic principles, gender justice and non-discrimination, and include marginalized groups (minority groups) in decision making (deliberation) and supervision (Zakaria and Simarmata, 2015).
Normatively, the Village Law provides opportunities for communities to form village institutions in accordance with local (custom) aspirations in strengthening rights and guaranteeing a democratic, participatory process, including aspirations for the implementation of customary principles and social inclusion in the administration of village and village development.
If linked in the context of the village type above, then in the homogeneous village type, the Village Law provides an opportunity for the recognition of indigenous peoples in the form of traditional villages. The traditional village envisaged by the Village Law is in line with the principle of participation and democracy based on custom. In this context, custom is expected to be a counterweight in the implementation of government, development and formulation of policies at the village level.
Meanwhile, in the condition of the minority indigenous peoples in heterogeneous village types, the implementation of democratic principles and participation needs to be encouraged. Dialogue through the formal mechanism of village deliberation, which is normatively obliged to involve marginal or minority groups, must be applied.
Formal processes at the village level are then accompanied by informal processes, such as involving minority indigenous peoples in cultural events and other informal activities in the village so as to support the process of social acceptance. The involvement is then supported by formal village decisions in the form of policies and village regulations.
Finally, the social exclusion of indigenous people is a structural problem so that the resolution of the problem must also be done in structural ways. The Village Law provides a way for structural change by opening the door to participation and rights of indigenous peoples in the state structure through democratic processes.
Guarantees for the participation and rights of indigenous peoples are the preconditions for breaking the chain of discrimination that create the social exclusion of indigenous peoples. The implementation of the Village Law certainly must be accompanied by the support of the government, both central and local governments, to ensure the social and political processes of indigenous peoples in village institutions are effectively building inclusive indigenous peoples according to the mandate of the Village Law.