ISSN Print 2540-7716, ISSN Online 2540-9166

Interpreting Between the Concept of Customary Law Community And the Concept of Indigenous People (A Theoretical Study)

Kadir Katjong

Faculty of Law, Cenderawasih University Jl. Kamp. Wolker, Waena, Jayapura, 99358, Papua, Indonesia Email: [email protected] DOI: 10.31957/plj.v3i1.631

Abstract: The concept/term often used in the community and in the academic world is the concepts/terms of customary law community and indigenous people. In its development, there are those who equate the two concepts, and those that distinguish them according to their point of view. Therefore, the problems that arise in our society in everyday life are the difficulty to distinguish or interpret between the two concepts, namely: what the concept of indigenous people and the concept of indigenous peoples are, and how the background of the differences between the two concepts is. The method used in reviewing the problem above was normative legal research, by studying various literature/materials, both primary, secondary and tertiary legal materials. The concept of the customary law community and the concept of indigenous peoples are used in the same sense because the subjects are the same, even though theoretically and academically the concepts are different. The difference between these two concepts/terms is due to the emergence of historically different backgrounds, such as in aspect of language, users (people, scholar, entity or scientific field, all of which use the terms to give identity to certain group of people (as subject) in a certain area).

Keywords: Customary Law Community; Indigenous People.

INTRODUCTION religions and foreign cultures into the Historically, the development of intact life pattern of the community. customary law in Indonesia has The referred custom is “Polynesian shown that before Indonesia became Malay custom”1. As the time went on, an independent country, the existence Hindu culture came to Indonesia, of customary law community and followed by Buddhist, Islamic, their customary laws had existed Christian and other cultures, each of since the existence of their ancestors

(ancient times), or the era before the 1 Soerojo Wignjodipoero. (1983). Pengantar dan Asas-Asas Hukum Adat. arrival of Hinduism and other Jakarta: PT Toko Gunung Agung. p. 25.

49 Papua Law Journal. Volume 3 Issue 1, November 2018: 49-61 which had an influence on the cultural identities and rights of original culture2. According to the traditional communities are to be existing circumstances and facts, it respected in conjunction with the can be said that the existing progressing times and civilization. In Indonesian custom is a result of addition, the juridical dimension of acculturation between the original recognition and respect for customary custom rules (pre-Hindu) and the law communities is contained in rules of life taught by Hinduism, various laws and regulations. Islamic, and Christian cultures3. Although juridically there has been In line with the explanation recognition and respect for customary above, juridically as a legal State, law communities, but sociologically, Indonesia constitutionally recognizes they have not yet fully taken into the existence of customary law account by the government. communities, as mandated in the Nonetheless, the existence of 1945 Constitution of the Republic of customary law communities remain Indonesia (UUD 1945), where the internally exist, especially in carrying State recognizes and respects out their customary law institutions as traditional communities along with a necessity in regulating their their traditional customary rights as communities. long as these remain in existence and Along with the existence of are in accordance with the societal customary law communities seen development and the principles of the from legal entities, the concept/term Unitary State of the Republic of of indigenous people has also been Indonesia, and shall be regulated by widely used in various studies. In its law (Article 18 B paragraph 2 of the development, these two concepts 1945 Constitution of the Republic of (customary law communities and Indonesia). The existence of Article indigenous people) are often 18 B paragraph 2 of the 1945 interchanged by community, scholars Constitution of the Republic of and experts since the subjects are the Indonesia is supported by Article 28 I same. However, some distinguish the paragraph 3 affirming that: The concepts/terms according to their

2 Ibid. point of view based on the history or 3 Ibid.

50 ISSN Print 2540-7716, ISSN Online 2540-9166 background of the emergence of these DISCUSSION two concepts/terms, and the cultural, Customary Law Community religious and other dimensions. A community is a form of shared Therefore, the problem arising in life, where citizens live together for a Indonesian society is the difficulty to long period of time, resulting in distinguish or interpret the two culture. Community is a social system concepts, such as what the concepts as a forum for patterns of social of customary law community and interaction or interpersonal indigenous people are, and how the relationship and relationship between background of difference between the social groups4. two concepts is. In community life, the existence of customary law community is often METHOD likened to indigenous people. The method used in examining Historically, this customary law the problem above is a normative community has existed before the legal research, by studying various country establishment5. In the context literature related to the problem of customary law, Ter Haar uses the through various legal materials term legal alliance or legal including primary, secondary and community (rechtsgemeenschap)6. tertiary legal materials. Quoting Cornellis van In relation to the development of Vollenhoven’s opinion, in his speech these two concepts/terms in on October 2, 1901, Soepomo stated Indonesian society, the following is a that “to find out the law, it is brief description of the two concepts necessary to be investigated at any (the concept of customary law time and in any area, the nature and community and the concept of structure of legal alliance bodies indigenous people) in the theoretical where people controlled by the law level to understand the background and meaning of these two concepts. 4 Soerjono Soekanto. (1986). Hukum Adat Indonesia. Jakarta: Rajawali Publisher. p.106. 5 Fifik Wiryani. Reformasi Hak Ulayat Pengaturan Hak-Hak Masyarakat Adat dalam Pengelolaan Sumber Daya Alam. Malang: Setara Press. p.1. 6 Ibid. p.11.

51 Papua Law Journal. Volume 3 Issue 1, November 2018: 49-61 live their daily life”7. Furthermore, Hazairin provides a relatively according to Soepomo, the long description of the customary law explanation of the alliance agency community that customary law should not be carried out in a community is a community unit with docmatic manner, but on the basis of the completeness to stand alone, by the community real life. having a legal unity, unitary authority Ter Haar in his book “Asas-asas and environmental unity based on dan Susunan Hukum Adat” affirms joint rights to land and water for all that throughout the Indonesian its members”10. archipelago at the level of the If each customary law common people, there is social community is thoroughly examined, interaction within groups behaving as each has its basis and form. a unity to the best of theirselves to the According to Soepomo, customary world. The groups have the order and law community in Indonesia can be they experience their life in the group divided into two groups according to naturally, according to their nature. its structure, namely those based on None of them thought to dissolve the genealogy and those based on the group. These groups have its own territorial area. management, own assets, and tangible From the basis and form of the and intangible possessions. These customary law community above, it groups are legal alliances8. develops into three types of Thus, the legal alliance or customary law communities, namely: customary law community is a genealogical community, territorial permanent organized group that has community, and genealogical- its own power and wealth in the form territorial community. of material and immaterial Genealogical Community properties9. Genealogical community or legal alliance is an organized community 7 R. Soepomo. (1996). Bab-Bab Tentang unit whose members are descended Hukum Adat. Jakarta: Pradnya Paramita Publisher. p. 45. from an ancestor, either directly 8 B. Ter Haar Bzn. (1994). Asas-Asas dan Susunan Hukum Adat. Jakarta: PT Pradnya Paramita Publisher. p. 7. 10 Hazairin in Soerjono Soekanto. 9 Ibid. (1986). Op Cit. p.108.

52 ISSN Print 2540-7716, ISSN Online 2540-9166 through blood relation or indirectly both paternal and maternal clan, for example the through marital relation or customary communities in Java and relation11. Kalimantan. This genealogical community can Teritorial Community be divided into three types, namely: Territorial community or legal patrilineal, matrilineal, and bilateral alliance is a permanent and organized or prental communities12. community whose members are 1. Patrilineal Community A patrilineal community is bound to a certain residential area, one whose lineage is traced either physically as a place of life or through father’s lineage (male line), not their mother’s line. spiritually as a place of worship for The Indonesian patrilineal ancestral spirits. communities include genealogical clans of Batak, Territorial community can be Nias, Sumba, Nusatenggara, distinguished in three types, namely: Maluku and Irian (Papua) people. 1. Village Community 2. Matrilineal Community Village community is people A matrilineal community is bound in a shared residence one whose lineage is traced within their own area through mother’s lineage including several nearby (female line), not their dukuhs subject to the village father’s line. The Indonesian apparatus residing in the matrilineal communities village center, such as include kin relationships in villages in Java and Bali. Minangkabau, Kerinci, and 2. Regional Alliance Semendo in South Sumatra. Regional alliance is people 3. Bilateral or Parental bound in a joint residential Community area and controls customary A bilateral or parental communal land consisting of community is one whose the several hamlets or kampung community structure is with a common customary traced through parental government center, such as: lineage, both father’s and Nagari in Minagkabau, mother’s line. Thus, the kin Marga in South Sumatra. relationship between the 3. Village Union father’s and the mother’s Village union is a lines are balanced or equal, combination of several each member is included in village alliances located side by side, where they hold agreement to cooperate. To 11 Hilman Hadikusuma. (2003). maintain the mutual needs, a Pengantar Ilmu Hukum Adat. Bandung: CV management body is formed Mandar Maju. p.108. consisting of village 12Ibid.

53 Papua Law Journal. Volume 3 Issue 1, November 2018: 49-61

administrators, such as: Indigenous People Subak in Bali, Huta-Huta The concept of indigenous people Alliance in Batak tribe13 4. Genealogical-Territorial is often referred to by other names, Community such as traditional community, native According to Soepomo, genealogical-territorial community, original charcoal and so community is where legal on. There are also those who refer to alliance membership shall fulfill two conditions, the customary law community namely: it shall be included in because this is emphasized due to a genealogy unit; and it shall reside in the legal alliance having the power to regulate and 14 area . For example: Uma in 17 manage their citizens . Mentawai Island, Curia with its Huta-Huta in Tapanuli Historically, the discourse of area, Marga with hamlets in indigenous people has gone hand in South Sumatra, Marga with Tiyuh-tiyuh in Lampung and hand with the history of modern Nagori in Maluku15. colonialism around the sixteenth According to Hilman century. Since that time, those who Hadikusuma16, customary law inhabited the territory which was then community or customary law alliance controlled and colonized by the lives with its own community law colonialists were referred to as based on territorial or genealogical indigenous, native or aboriginal18. ties, and/or a combination of both The term “indigenous people” is genealogical-territorial ones. Ideally, commonly used in referring the legal community or legal alliance individuals and groups who are is alive today, but there have been descendants of native people living in many shifts and changes due to a country19. The term “indigenous” changes in people’s lives, especially comes from the Late Latin, in areas used as the object of “indiginea” used to distinguish development. between people born in a certain

17 I Dewa Made Suartha. (2015) Hukum dan Sanksi Adat Perspektif Pembaharuan 13Tolib Setiady. (2009). Intisari Hukum Hukum Pidana. Malang: Setara Press. p. 29. Adat Indonesia (Dalam Kajian Kepustakaan). 18 Rafael Edy Bosco. (2006). Hak-Hak Bandung: Alfabeta Publisher. p. 82-83. Masyarakat Adat Dalam Konteks 14 R. Soepomo. (1996). Op Cit. p.47-51. Pengelolaan Sumber Daya Alam. Jakarta: 15 Tolib Setiady. (2009). Op Cit. p. 83. Elsam (Institute for Community Research and 16 Hilman Hadikusuma. (2003). Op Cit. Advocacy. p. 5. p.106. 19 Ibid., p.52

54 ISSN Print 2540-7716, ISSN Online 2540-9166 place and those who came from other In their political discourse and places (advenae). Therefore, the human rights movement, this term is semantic root of the term has a commonly called indigenous peoples conceptual element: prior or earlier in (in English). Referring to the United time20. Nations formulation, they are called Today, the term indigenous refers indigenous because their roots are more broadly to the heirs that inhabit hereditary into an inseparable unit the region, namely areas inhabited with the inhabited land and territory long before being colonized or (in the sense of returning to the area controlled by foreign nations, which after experiencing marginalization or are now dominated by other people, forced eviction). They are also called both foreign and other tribes21. peoples in the sense that they are In other countries, there are many unique communities with their terms used to refer to indigenous existence and identity continuously people, for example first people passed down from generation to among anthropologists, first nation in generation, connecting them to the the United States and Canada, community, ethnicity, or nation and indigenous cultural communities in their past history23. the Philippines, indigenous nation The description above shows that and native people in Malaysia. While the term indigenous people comes in the United Nations (UN), it was from English, distinguished by the agreed to use the term indigenous term customary law community peoples as contained in all documents which is a translation of the term discussing one of the draft UN rechtsgemenshap (Dutch language)24. declarations, namely the draft of the The term of indigenous people is UN Declaration of the Right of the widely used by activists of non- Indigenous Peoples22. governmental organizations and indigenous people organizations. The use of the term indigenous people is 20 Ibid. 21 Ibid. p. 5 considered to have broader meaning 22 Husein Alting. (2010). Dinamika Hukum Dalam Pengakuan dan Perlindungan when compared to the term Hak Masyarakat Hukum Adat Atas Tanah (Masa lalu, Kini dan Masa Mendatang). 23 Rafael Edy Bosco. (2006). Op Cit. Yogyakarta: LaksBang Pressindo. p.44. 24 Husein Alting. (2009). Op Cit. p. 43.

55 Papua Law Journal. Volume 3 Issue 1, November 2018: 49-61 customary law community which cannot be applied in the same way narrows the entity of indigenous throughout the world. Another reason peoples limited to only legal entities. is political, in which some countries The term indigenous peoples is object to the use of the term believed to have a broad dimension of “indigenous” directed towards some meaning rather than merely a legal of their communities, while other aspect, in the sense that indigenous countries strongly object to the use of people are closely related to cultural, the term “peoples” because it may religious and other dimensions25. have implications for the emergence In Indonesia, the term of of self-determination rights27. indigenous people is not translated In the Congress of the into “masyarakat asli”, but rather Archipelago Indigenous Peoples in masyarakat adat. The use of the term March 1999, it was agreed that masyarakat asli may cause sharp indigenous peoples are: groups of polemics that may even be a source of people who have ancestral origins conflict, while the use of the term (hereditary) in certain geographical masyarakat is considered more areas, and have a system of values, popular. Although the term of ideology, economy, politics, culture, indigenous peoples is translated as social and own territory28. masyarakat adat, the definition of Whereas the ILO convention No. masyarakat adat is similar to the 169 of 1989 concerning Indigenous general definition of indigenous Peoples in Independent Countries peoples26. interpreted the Indigenous Peoples as Until now, there has been no ethnic groups inhabited in universally agreed definition of independent countries whose social, “indigenous peoples”. Difficulties in cultural and economic conditions making generally accepted definition differ from other community groups may be the result of the fact that or ethnic groups inhabited a country indigenous peoples are very diverse since the time of colonization with its in their culture and social structure, so that an exact and inclusive definition 27 Rafael Edy Bosko. (2006). Op. Cit. 25 Ibid. p.53. 26 Ibid. 28 Husein Alting. (2009). Op Cit. p.44.

56 ISSN Print 2540-7716, ISSN Online 2540-9166 own economic, cultural and political other groups or part of the wider institutions29. community31. The work of Firsty Husbani on Approximately 350 million of the the World Bank concludes a number world’s population are indigenous of criteria for indigenous people people. Most live in remote areas. group, namely30: They consist of approximately 5000 a. Closeness of relationship people spreading in the world32. with the area of descent and According to The World natural resources in the area. b. Determining identity and Conservation Union in 1997, out of being identified by others as about 6,000 cultures in the world, members of a different cultural group. 4000-5000 of them are indigenous c. Having a native language people or about 80 percent of all often different from national language. cultural communities in the world33. d. Having customary institution In Indonesia, there are more than in the social and political fields. a thousand groups of indigenous e. Their production is mainly peoples, who are at different levels of sub-system oriented. social economic development. They Jose Martinez Cobo, in his study live in small groups in the mountains, on “Discrimination Against jungles, mountain slopes, vast Indigenous Peoples”, defines swamps, on the coast, islands and at indigenous peoples as a community the sea. At the local level, they often group or ethnic group that has a refer to themselves and are known by continuation of historical relations the surrounding community according between the pre-invasion period and to their respective tribes34. the post-invasion period that Indigenous peoples are formed developed in their territory, they based on blood (genealogical) ties or consider themselves different from based on territorial ties. Indigenous peoples based on genealogical ties are 29Ricardo Simarmata. (2002). Menyongsong Berakhirnya Abad masyarakat Adat Resistensi Pengakuan Bersyarat. This 31 Jose Martinez Cobo in Husein Alting. paper has been presented in Regional (2009). Loc Cit. Environmental Management Training, 32 Rafael Edy Bosko. (2006). Op. Cit. p. Environmental Research Center of IPB, dated 1. July 5. 33 Ibid. p.2. 30 Fifik Wiryani. Op Cit. p.11. 34 Ibid. p.11

57 Papua Law Journal. Volume 3 Issue 1, November 2018: 49-61 those consisting of population bound Differences between Indigenous People and Customary Law solely due to the descendants of a Community common ancestor. Indigenous peoples From the description of the based on territorial ties are concept of customary law community community whose members are and the concept of indigenous people, bound to a certain area of their it can be drawn several theoretical residence. In addition, there is a differences seen from various combination of indigenous people, dimensions as the following table namely territorial-genealogical below: indigenous peoples.

No. Customary Law Community Indigenous People 1 In the aspect of term: Customary In aspect of term: Indigenous people Law Community is derived from is derived from English. Dutch language: Rechtsgemeenschap 2 The concept/term of customary law The concept/term of indigenous community emerged and used by people is mainly used by activists of customary law expert non-governmental organizations (NGOs) and indigenous people organization. 3 The emergence of the concept of The emergence of the concept of customary law community is indigenous people is mainly related functioned for academic-theoretical to human rights (violation of human purposes. rights, especially the rights of indigenous people). 4 The concept of customary law The concept of indigenous people is community is use to give identity to used to refer to ethnic groups in indigenous group who has its own independent countries whose social, legal system and tradition, to cultural, and economic conditions distinguish it from Far European and differ from other community groups. Eastern groups with written legal systems and traditions. 5 The use of concept/terms of The concept/terms of indigenous customary law community is used for people has broader meaning, and is a legal entity. closely related to cultural, religious dimensions and other dimensions.

The description of the table of concept of customary law community differences between the two concepts is mainly in a legal entity, while the above shows that the use of the use of the concept of indigenous

58 ISSN Print 2540-7716, ISSN Online 2540-9166 people is considered to have broader indigenous people is a community meaning because it is related to (it is just that: not all communities cultural, religious and other aspects. are customary law community or Based on further exploration, the indigenous people). meaning of customary law e. Juridically, the existence of community is not limited to a legal customary law community or entity, but it has broader meaning indigenous people is recognized because customary law community, and respected by the state (see the customary authorities and all of Article 18 B paragraph 2 and the attributes are sourced from the Article 28 I paragraph 3 of the traditional culture of the people, and 1945 Constitution are adhered to the religious aspect as f. The basis of the composition of one of the features in customary law, customary law community or namely: the magical religious feature indigenous people is based on adopted by the customary law geneological and territorial ties. community. In addition to the differences above, it can be seen some CONCLUSION similarities, namely: The concept of customary law a. Historically, customary law community and the concept of community or indigenous people indigenous people are often used have existed since tha ancestors interchangeably since the subjects are before the formation of the the same, even though they are country. academically different. The difference b. Substantially, the subjects of these between these two concepts/terms is two concepts are the same. due to its emergence that is c. Customary law community or historically different from the indigenous people have ancestral concept/terms currently used by the origins from generation and users (including people, scholar, generation in a particular region. entity and scientific field, all of which d. Sociologically, seeing from the use the terms to give identity to definition of community, certain group of people (as a subject) customary law community or in a particular region).

59 Papua Law Journal. Volume 3 Issue 1, November 2018: 49-61

The concept of customary law consistent in using them. The concept community is theoretically derived of customary law community is used from the Dutch language: when referring to legal entities, while Rechtsgemeenschap which emerges the concept of indigenous people is and is used by experts, and is mainly used when referring beyond legal functioned for theoretical-academic entities. purposes, used to give identity to indigenous groups with their own BIBLIOGRAPHY legal traditions, to distinguish them Alting, Husein. (2010). Dinamika Hukum Dalam Pengakuan dan from European and Far East groups Perlindungan Hak Masyarakat which have a written legal tradition, Hukum Adat Atas Tanah (Masa lalu, Kini dan Masa and its use is mainly for legal entity. Mendatang). Yogyakarta: The concept of indigenous people LaksBang Pressindo. is theoretically derived from English. Bosco, Rafael Edy. (2006). Hak-Hak Masyarakat Adat Dalam This term is commonly used by Konteks Pengelolaan Sumber activists of non-governmental Daya Alam. Jakarta: Elsam (Institute for Community organizations (NGOs) and indigenous Research and Advocacy. peoples’ organizations, the emergence Bzn, B. Ter Haar. (1994). Asas-Asas of this concept is mostly related to dan Susunan Hukum Adat. Jakarta: PT Pradnya Paramita human rights violations, especially Publisher. the rights of indigenous peoples, used Hadikusuma, Hilman. (2003). to refer to ethnic groups in Pengantar Ilmu Hukum Adat. Bandung: CV Mandar Maju. independent countries whose social, Setiady, Tolib. (2009). Intisari cultural and economical conditions Hukum Adat Indonesia (Dalam are different from other community Kajian Kepustakaan). Bandung: Alfabeta Publisher. groups, and has the broader meaning related to cultural, religious and other Simarmata, Ricardo. (2002). Menyongsong Berakhirnya dimensions. Although these two Abad masyarakat Adat concepts are theoretically different, Resistensi Pengakuan Bersyarat. This paper has been their use does not dichotomize these presented in Regional two concepts, but can be used as Environmental Management Training, Environmental needed, which is important to be

60 ISSN Print 2540-7716, ISSN Online 2540-9166

Research Center of IPB, dated Pembaharuan Hukum Pidana. July 5. Malang: Setara Press. Soekanto, Soerjono. (1986). Hukum Wignjodipoero, Soerojo. (1983). Adat Indonesia. Jakarta: Pengantar dan Asas-Asas Rajawali Publisher. Hukum Adat. Jakarta: PT Toko Gunung Agung. Soepomo, R.. (1996). Bab-Bab Tentang Hukum Adat. Jakarta: Wiryani, Fifik. Reformasi Hak Ulayat Pradnya Paramita Publisher. Pengaturan Hak-Hak Masyarakat Adat dalam Suartha, I Dewa Made. (2015) Hukum Pengelolaan Sumber Daya dan Sanksi Adat Perspektif Alam. Malang: Setara Press.

61