International Journal of Civil Engineering and Technology (IJCIET) Volume 8, Issue 9, September 2017, pp. 420–428, Article ID: IJCIET_08_09_050 Available online at http://http://iaeme.com/Home/issue/IJCIET?Volume=8&Issue=9 ISSN Print: 0976-6308 and ISSN Online: 0976-6316

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A HISTORICAL AND JURIDICAL REVIEW OF STATUS AND RIGHTS OF INDIGENOUS PEOPLES TO LAND IN DELI SULTANATE, NORTH

Tarmizi Universitas Amir Hamzah, Deli Serdang, Sumatera Utara 20219,

ABSTRACT This study seeks to describe the position and rights of indigenous peoples, especially by taking special reference to the Deli Sultanate representing the customary law community of Deli in . The study was conducted with a historical and juridical approach. The results of study show that the existence of the Deli indigenous community empirically still exist with traditional institutions were given the authority to manage the rights to the land mastery collectively called the land of indigenous people's land partly in the form of ex-concessions currently held by PT. Perkebunan Nusantara II (Persero). In addition, the institutional existence of the community Deli still get recognition from local governments, with their Deli inauguration as customary law community stakeholders of Deli peoples is always attended by the Governor of North Sumatra, and given the right to regulate customs administration determines the traditional institutions and customary organizational structure to manage it. Key words: Indigenous Peoples, Status, Rights, Historical, Juridical Approach. Cite this Article: Tarmizi, A Historical and Juridical Review of Status and Rights of Indigenous Peoples To Land In Deli Sultanate, North Sumatra, International Journal of Civil Engineering and Technology, 8(9), 2017, pp. 420–428. http://iaeme.com/Home/issue/IJCIET?Volume=8&Issue=9

1. INTRODUCTION The long history of Dutch colonialism in Indonesia has given rise to various effects, which consequently are still impacting until now (Ghofur and Susilo, 2017). For example, a treaty made by the Dutch, or a private company operating in the late nineteenth century of Dutch colonialism, still leaves a problem with respect to the matter of land after the colonial government was replaced by the Government of Indonesia. This study took a case at the Deli Sultanate in North Sumatra. The deed of concession on land in the Deli Sultanate area was born out of the agreement of Sultan Deli and Orang-orang Besar who acted on behalf of Deli's customary law community with plantation entrepreneurs

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(onderneming) originally represented by Jacobus Nienhuys, a tobacco company employee at Rotterdams Tobacco 'P van de Arend in . The first concession was accepted by Nienhuys in 1864. The area of East Sumatra in the colonial period was the territory belonging to the Malay kings located on the north of the Kampar River and in the south of the Tamiang River with an area of about 92,000 square kilometres. This area is often referred to as Residentie van Oostkust Soematra which covers the Serdang, Asahan, Langkat and Simalungun-Tanah Karo. With the exception of the -controlled Simalungun-Karo region, the rest of East Sumatra was the power of the Malay and was inhabited by ethnic with their land rights in accordance with Malay customs. There is the word "customary Malay" there. It means that by law the people are the subject of rights of customary land. The status of customary (adat) land is not owned by individuals but in groups or communal called customary law community. This study attempts to describe how the status or position of the Sultan Deli represents Deli's customary law community in making a concession agreement with the Dutch plantation company. In addition, the study attempted to analyze land tenure rights after the agreement ended, along with the end of colonialism in Indonesia. The study was conducted with a historical and juridical approach, focusing on issues status of authority granting land concessions in the Deli Sultanate to Dutch colonialism, and its post-independence Indonesian ownership rights.

2. THE POSITION OF DELI SULTAN REPRESENTS THE DELI PEOPLES Deli Sultanate was founded by Muhammad Delikhan who holds Laksamana Kuda of Bintan or also known as Gocah Pahlawan (Basarshah, n.a), a derivative of Indian royalty. Muhammad Delikhan was trusted by the Sultan of to be a representative in the former territory of Haru Kingdom based in the area of Sungai Lalang - Percut. He then established the Deli Sultanate in 1630 whose power remained under the Sultanate of Aceh. Muhammad Delikhan died in 1653. His son Tuanku Panglima Perunggit succeeded his father's power. In 1669 Tuanku Panglima Perunggit declared the Deli Sultanate stand alone and free from the power of the Sultanate of Aceh and appointed Deli Tua Labuhan Deli as the capital of Deli Sultanate. In 1861 the Deli Sultanate was officially recognized free from the power of the Sultanate of Aceh and Siak Sultanate. This means that the Sultan of Deli had the freedom to do everything in relation to the lands that exist in his territory, including to surrender to the people and to enter into agreements with the Dutch Company. In everyday life, Sultan not only functioned as Head of Government but also as Head of Religious Affairs and also as Head of Malay Custom. To carry out his duties, the Sultan was assisted by the Viceroy, the Orang-orang Besar and the other servants. Sultan Deli, in addition to domicile as mentioned above, is also as Stakeholder / Head of Legal Community / Legal Communion of Deli. This status occupies a central place, because basically customary rights to land or rights over communal lands held by the alliance of the land law and transactions carried out by bringing and Head of the Guild (Mahadi, 2003). Rights owned by the Guild of law referred to the customary rights (Mahadi, 2003). Guild customary law is commonly also referred to indigenous and tribal peoples (Soekanto & Taneko, 2011). Ter Haar formulate indigenous and tribal peoples are organized groups that are steady with self-government that has objects in which material and immaterial (Soekanto & Taneko, 2011). The existence of indigenous peoples can be known from various criteria. A society according to Ter Haar (1981) can be seen if fulfilled four (4) criteria, that are there's a group of

http://iaeme.com/Home/journal/IJCIET 421 [email protected] A Historical and Juridical Review of Status and Rights of Indigenous Peoples To Land In Deli Sultanate, North Sumatra people gathered, the group is subject to a rule or order, having self-government, and own property own both material and immaterial. Koesnoe (2000) states that indigenous people should pay attention to things in question whose answer will be the criteria for whether or not the indigenous peoples as follows: Is within the territory in question there is a group that is an organized unity. As such a group is whether the organization is administered by a board that is adhered to by its members. Since when the group is in the environment of the land (such as how many generations). Is the group recognizes a homogeneous tradition in his life so that the group can be regarded as a legal union. What according to the tradition of the origin of the group so that it is a unity in the soil environment. When the Colonial Government came to power in Indonesia, the existence of indigenous and tribal peoples was not disturbed in the sense that everything connected with the system of government and its substance remained the same. Even to strengthen it The Dutch government issued two rules, namely: • Gemente inlands Ordinance (IGO) Stb. 1938 Number 681 namely the Rules on Village Governance applicable to and Madura. • Gemente inlands buitengewesten Ordinance (IGOB) Stb. 1938 Number 490 jo. Stb. 1938 No. 681 on Village Governance for Outer Java and Madura. In the Malay royal tradition of Deli, the royal structure according to adat (customary law) consists of the king who was given the title of Sultan, then the Raja Muda, and the Orang-orang Besar who numbered four people and were given the title of Datuk. The role of the sultan as head of the Deli Kingdom is not as an absolute ruler. His appointment as Sultan depends on the will of the four Datuk namely Datuk Sukapiring, Datuk Serbanyaman, Datuk Sepuluh Dua Kuta and Datuk Senembah. Thus the position of the Sultan in the Deli Kingdom was not to be the ruling ruler but only as the ‘highest symbol’ of the kingdom receiving the highest honor and the greatest income. The Malay people call the Sultan's duty as formality. The Orang-orang Besar (Datuk) are the true leaders of the people. Datuk is who actually controlled the territory and the people according to his position as Head Urung (Datuk). Most of the area that is now called City was still within the territory of Deli Sultanate when the Dutch East Indies colonial government controlled the archipelago. Moreover, the borders of the kingdom Deli with Gemeente Netherlands is the Antara Street (now Sutrisno Street). Villages such as Kota Matsum, Glugur, Sungai Rengas, Medan Baru, Sungai Kera, Sukaramai and others are still within the Deli Sultanate. The inhabitants of the territory, the indigenous people, are the Swapraja Deli and are subject to Deli royal justice. As mentioned in the "Politiek Contract", Kingdom Deli consists of: 1. The original Deli area (Sultan-gebied) and coastal forth around the left and right until Medan Deli river, inhabited by Malay ethnic. The area was ruled by Sultan directly, sometimes through his assistants who hold a "Viceroy" (Raja Muda), "Treasurer" (Bendahara), ”Prince)" (Tumenggung), Admiral " (Laksmana) and others. 2. The regions of Urung (County) of the Four Tribes Datuk are Sepuluh Dua Kuta - Hamparan Perak, Serbanyaman – Sunggal, Sukapiring-Kampung Baru dan Kejeruan Senembah Deli- Patumbak. Next to the coast from these area are inhabitetd by descendant of Malay people. While those that situated in upstream has been populated Karo tribe. 3. The colonies of Deli were Percut, Bedagai and Padang.

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Each country and Urung has its own "king" and hereditary with various titles. They all became "The Great" (Landsgroten) of Deli Sultanate, while the "Vizier" from foursome Datuk entitled to lift someone ascend or descend the throne as Sultan. Reduction in power and the people of the Kingdom of the politics of the Dutch government since 1915 to reduce the power so that one day only created one man who ruled (alleen bestuurders) that was the Sultan itself. So it is easy for the Dutch to presses and exercise their will. If a Orang-orang Besar died, as was the case with the " Raja Muda Sulaiman" of Deli, the post by the Dutch was abolished. If the Orang-orang Besar died, his son would succeed him, that must fulfil the skills and loyalty to the Sultanate. Secondly, the succesor should be relegated to a mere municipal kingdom called "Districthoofd" or king in anything region he appointed, which used to be the former regions of the parents even though he justified using the customary title (Koesno, 2000).

3. CUSTOMARY LAW SOCIETY UNDER THE COORDINATION OF DELI SULTANATE Human life is primarily intended to serve the public. This devotion is considered fair as a duty. Nevertheless human beings as members of the community are given rights. Similarly, Deli customary law community is characterized as communal and religious in the form of community rights and is a group of people formed in close social ties so that in the daily life of each society, each member of the community prioritizes public interest above personal interests based on the principle of mutual cooperation, kinship and help. The opening of new land or the period started to descend into the rice fields for example, is always done jointly included in the construction of means of worship as well as other social interests (Susilo and Syato, 2016). Religious means that human life is everything that governs and determines that the Creator of all existence. Customary law of Deli Community generally believes the existence of God. This belief in society is seen from every act or behavior often associated with religious purpose. This communal and religious character is attached to the pattern of life of indigenous Melayu Deli people, especially in the utilization of land rights of customary law community. In almost every reading of customary law which contains a comprehensive view of customary law, an explanation of indigenous and tribal peoples is almost certain. This suggests that an introduction to indigenous and tribal peoples are indispensable before continuing the positive law of the relevant community (Soekanto & Taneko, 2011). (as cited in Soekanto & Taneko, 2011) stated that the customary law of communities like villages in Java, clan in South Sumatra, nagari in Minangkabau, kuria in Tapanuli, wanua in South are social entities that have to be able to stand on its own completeness that has the unity of law, the unity of the ruler and the unity of the environment based on the common right of land and water for all its members. The status and legal rights of indigenous and tribal peoples shall be recognized in the laws of the Republic of Indonesia as follows: • The 1945 Constitution (Amendment II) of Article 18 (B) paragraph (2) states that the State recognizes and respects the unity of indigenous and tribal peoples along with their traditional rights as long as it is alive and in accordance with the development of society and the principle of the Unitary State of the Republic of Indonesia Constitution. Article 28 paragraph (3) states that the cultural identity and rights of traditional society are respected in harmony with the development of the times and civilizations. The contents of these two articles are also contained in Law No. 39 of 1999 on Human Rights, Article 6 paragraphs (1) and (2). • Law No. 5/1960 on Basic Agrarian Stipulations, Article 3 states that in view of the provisions of Articles 1 and 2, the exercise of customary rights and similar rights from indigenous and tribal peoples, insofar as they still exist, shall be such that in accordance with the social and

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State interests, which are based on the unity of the nation and shall not be contrary to the higher laws and regulations. • Law No. 41 of 1999 on Forestry Article 5 states that forests based on their status consist of State forests and forestry rights. State forests may be customary forests. Customary forest is a State forest within the territory of customary law community. The Government determines the status of forests as referred to in paragraphs (1) and (2); and customary law is established insofar as in reality the customary law community still exists and is still acknowledged. If in the development of the customary law community does not exist anymore, then the rights of forest management back to the government. Regulation of the Minister of Agrarian Affairs / Head of National Land Agency Number 5 Year 1999 concerning Guidance on Completion of Indigenous Peoples Rights Issues, Article 1 paragraph 3 states: Indigenous and tribal peoples are a group of people bound by their customary law as citizens together a legal partnership because of the similarity of residence or on the basis of heredity. Tolib Setiady (2008) reveals two things that cause soil it has a very important position in customary law, namely for it is the only thing of wealth which, though under any circumstances, will still be permanent in its very existence and sometimes even profitable. Second, in the fact the land is a community dwelling place, capable of providing livelihood to the community, the place where the dead communion (community) people are buried, and a shelter for the patrons of the community fellowship and the spirits of the ancestors of community fellowship. In view of the facts as described above, then the alliance with the occupied land are very close relationship, a relationship that has the source and nature of magico-religious. This nature led the alliance gained the right to control the land in utilizing the land, collecting the produce from plants or trees that live on the land. From the description and the legislation relating to the communal rights of indigenous and tribal peoples of the land have raised questions that the Deli is there a customary law community has the right to communal land. Afnawi Nuh (1998) states that such rights do exist, pointing out that before settling farming, East Sumatra Malay people use shifting cultivation This is known as ‘reba’ farmers or ‘reba’ fields whereby farmers cleared forests or cut down forests. Farmers live around East Sumatra for the way of farming moving from one forest to another, does not mean the forest is damaged by it. Farmers' farming processes are regulated by traditional leaders and customary (adat) stakeholders. Adat leaders are guided by customary law in regulating land use. The word ‘reba’ comes from the word "rabbi" means the field. Regarding the notion of ‘rabian’ land, Lah Husny (in Mahadi, 2003) stated that it is a young forest that is used as land of cultivation. Upon completion of the dirabi (cultivated), the person concerned went to the neighbors to inform him of his intention to plant rice. Here lies the principle of mutual cooperation, the fields are worked together for the help of friends of the feast. The word means asking someone to do a job. Mahadi (as cited in Edy Ikhsan, 2011) states the rights of indigenous Malay people on the ground both before and after the concession exists. While prior to the concession the scope and content of those rights are vague, then in the deeds of the rights concessions it gets codified, obtains the formulation, gained confirmation and recognition. The existence of street soil as stated in the deed of concession between Sultan Deli with the Dutch plantation company is implemented by clause that is: the provision of settlement land, the prohibition of cutting the tree because the hive of bees nest that produces honey for the people's livelihood, let the plantation land and sacred place to remain used by the people is an indication that the rights of Deli's customary law community exist and are acknowledged. Of the various provisions of the legislation governing the indigenous and tribal peoples, almost all of them include requirements with the phrase "all in fact, still exist and are still

http://iaeme.com/Home/journal/IJCIET 424 [email protected] Tarmizi recognized to know the signs of customary rights’ (Kamello, 2012). This is specically detailed by such stipulations as the legal community and its members can use forest lands freely circulating in its territory, such as clearing land, setting up villages, collecting products, hunting, shepherding cattle and so on; an outsider who is not a member of a legal fellowship may exercise the right to the land anyway, only with the consent of the head of the communion if it is not licensed is considered guilty; in exercising the right to land, to an outsider is obligated to pay anything (recognitie). Empirically, Deli Sultanate still has the rights to the land which is done by institutional management of adat by customary law community in the form of forest and hills. Even there is also a sacred hill where there is a grave of someone who is considered to have magical power, that often become place for some people to "pay vows" by releasing animals such as chickens, goats or putting offerings in the form of flowers and even cash. Once placed then the members of the community around it can take and use it. Regarding the criteria and the determination of the persistence of customary rights, Kamello (2012), suggests the need to be investigated by the local government as a "stakeholder" and objectively qualified with signs that include three (3) elements, namely: • Elements of indigenous peoples The presence of a group of people who feel bound by customary legal order as residents together an alliance of certain laws that recognize and enforce the provisions of the alliance in their everyday lives. • Area element The existence of certain customary rights which become the environment of the citizens of the legal community and where they take their daily necessities. • The element of the relationship between the community and its territory The existence of customary law arrangements concerning the handling, control and use of customary land that is still valid and adhered to by the citizens of the legal alliance.

Historical Overview of the land as the object of the concession of Dutch East Indies Plantation Company In various models of the deed of concession stated that the object of the concession is Woeste ground, which is then translated into the various terms such as: woodlands, wild land, unused land, vacant land, the land that is not cultivated or other means which are basically land with no owners that controls it and not under the authority of the Village Head or the right of common property. However, this definition of Woeste ground more reflects the Western perspective, rather than that of indigenous people. According to Pelzer (1978), in the perspective of the Malays and Batak, there are no ground totally unused, because all the land is useful as a hunting ground and is also used for landfill forest products such as building materials, wood, resin, food, raw materials for the manufacture of tools, and many other products. And above all, all the land is a potential for farming. In short, all the land in any way supports the lives of all its inhabitants. The area of land is the object of the concession granted to the Company Deli Maatschappij a total of 97,190 hectares consist of 48 plantation areas (Ghani, 2016). In the deed of Mabar-Deli Toewa concession made first on June 11, 1870 then renewed on November 7, 1874 and July 24, 1898 some clauses mentioned the rights of indigenous people of Deli which still must be respected. Saidin (2002) classify the contents of the agreement in the concession deed Mabar-Deli Toewa as follows:

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Sultan Deli authorizes the company Plantation Deli Maatschappij to establish plantations on the land unused / vacant land / forest land (woeste grond) that lies between the River Deli and Senembah, as well as from Mabar to Deli Tua, the whole land, according to the agreement are customary land. • Sultan Deli gives the right to Deli Maatschappij to use the land for concessions for plantations over a period of 75 years or a maximum of 99 years. Thus, if the concession commenced in 1874 then the agreement would expire in 1949 or the longest in 1973. During the period of the agreement, Deli Maatschappij, is allowed to dispose of the land concessions to other parties but does not change the content of the agreement. On the granting of the concession, the Deli Sultanate received rent, which was used for the sake of the Sultanate, including sending the Malay students to study in the Netherlands. In the deed of concession dated July 24, 1898 signed by the Sultan of Deli as giving concession to the Deli Maatschappij represented by JGA Goedhart and approved by Resident de Oostkust van Sumatra, the status and rights of indigenous and tribal peoples Deli were accented. This proves that the Sultan Deli is not a land owner who becomes the object of a concession, but rather belongs to the indigenous peoples who were the original inhabitants (opgezetene). Opgezetene words found in the Model 1878 Concession Deed Article 6. Mahadi (1978) translated the terms as "if on the ground that it contained opgezetene then handed over these people should be able to master of (a) the land they are working on, and (b) good soil in the dressing area of four smell entirely to each resident. Opgezetene (population) laso refers to those who have their own homes on land that delivered it. If within concession boundaries there is a fruit staple, belonging to the former population, the planter is obliged to pay the price of the items fairly to the rightful. If there is no conformity, the Sultan and his Orang-orang Besar give a decision in the last instance, after negotiating with the Head of Region. From the description of Article 6 The model of this concession deed is what is meant by a resident is a person who owns a house on the land that is handed over as a concession land object. Mahadi argues that the simple explanation regarding the opgezetene will seemingly emerge major problem (Mahadi, 1978). The thesis of Mahadi was proved in next time by the emergence of a number of communities who claimed to be part of a group whose ancestry was "opgezetene". They are a diverse group of people on behalf of himself is the embodiment of opgezetene as indigenous and tribal peoples of Deli, Badan Perjuangan Rakyat Penunggu Indonesia (BPRPI), Kelompok Masyarakat Hukum Adat Serdang (KMHAS), Forum Peta Umat. Even, different groups of new society with various mass organizations as well as on behalf of the foundation also participated in the activities of land encroachment over the former concession of Deli Sultanate previously controlled by the Right to Use Business from PT. Perkebunan Nusantara II (Persero). This action is like showing that they are the people who are entitled to the land of the concession of the Deli Sultanate even because of the lack of knowledge of which locations have expired or which areas of the right to use their business have ended causing conflict with PTPN II (Persero) due to encroachment of land owned by the company and not infrequently cause casualties or injuries because each party is known to use sharp weapons and plantation security apparatus using firearms.

4. CONCLUSION When connected with the three elements of the existence of people, area, and relationship between the community and its territory, it is known that the existence of Deli's customary law community empirically still exists. They manage customary institutions with rights over land that are collectively occupied by the so-called customary land, partly in the form of ex concession land which is currently controlled by PT. Perkebunan Nusantara II (Persero) or PTPN II and partly derived from ex soil treats in 1953.

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Land tenure by customary law community often creates problems because the land used is controlled by PTPN II with ownership based on the right to use the business so that the result of horizontal conflict between indigenous people who feel they have civil rights on the land with PTPN II employees who are ordered to work on the same land. Both sides alike feel on the right track. Institutionally, the existence of indigenous peoples of Deli still get recognition from local government. The inauguration of Sultan Deli as a delegate of customary law community is always attended by the Governor of North Sumatra. This shows that the existence of the Deli Sultanate is still recognized. The Deli Sultanate was granted the right to govern the adat government to determine the institutional structure of adat and to manage the structure of the customary organization. Various traditional ceremonies that are done get support by participating in the event of Regional Cultural Arts Week. Until now, the concrete legal recognition of the communal rights of indigenous people of Deli has not been implemented mainly related to the giving of customary (ulayat) land, although the Regulation of the Minister of Agrarian Affairs Number 42 of 2000 has determined the 450 hectare land which is part of the former land of PTPN II HGU II of 5873,06 hectares whose rights are not extended by government. This 450-hectare land is given as a tribute to indigenous community of Malay delegates, although the right to receive still creates a prolonged polemic. Responding to this issue, Edy Ikhsan (2013) suggests that there should be rapid steps by new leaders in the region after the failure of the rights to use the land land policy implementation for 13 (thirteen) years so as not to have bad implications for society, state plantation companies, investors, etc.. The publication of the Agrarian Ministerial Regulation which in one of its decisions granted 450 hectares of land to the Deli indigenous people proves that the civil rights over communal land of Deli indigenous people still exist and its existence is recognized legally by the State. In its implementation, the Indonesian government should directly hand over the allocated land to the Deli Sultanate as a community stakeholder of Deli customary law. The Deli Sultanate, then can make arrangements on the distribution of land that has been submitted to it based on the existing authority on the Sultan Deli. This submission is an initial momentum for the recognition of the existence of civil rights over communal land of Deli customary law community. Hence, as stated by Badrulzaman (1977), the customary land rights are not an abstract matters but are deeply rooted in the consciousness of the people's law, in which the existence of customary rights reflects the customary rights of indigenous peoples' right to private property of land.

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