by Setyawati Fitrianggraeni, Fildza Nabila Avianti, Sri Purnama
Research Group Ocean Maritime and Climate and Working Committee Business and Human Right
Even before Indonesia achieved independence, Indigenous People had already inhabited and occupied its lands. Today, the quest for recognition by these Indigenous People from the Indonesian government persists and is plagued with challenges. The Indonesian Indigenous Peoples Bill is the culmination of prolonged endeavours to institutionalise the rights of the indigenous communities in Indonesia. Although the Indonesian Constitution of 1945 (“UUD NRI 1945”) has explicitly acknowledged the existence of Indigenous People, the legal landscape surrounding their recognition and the safeguarding of their cultural heritage remains complicated and multifaceted.
This acknowledgement is explicitly embedded in Article 18B paragraph (2), which states: “The State shall recognise and respect entities of the customary law societies along with their traditional rights to the extent they still exist and are following the development of the society and the principle of the Unitary State of the Republic of Indonesia, which laws shall regulate.” Furthermore, the Constitutional Court or Mahkamah Konstitusi (MK), through its Decision Number 31/PUU-V/2007, offers a nuanced interpretation of this “appropriateness”, positing it as the congruence of Indigenous People with regulations that mirror the societal ideal values.
Despite the constitutional clarity, there remain detractors. Many argue that the indicators elucidated by the MK are inadequate to handle the nuances of modernity and often render conditions vague. Consequently, identifying and recognising of who are Indigenous People are frequently complicated and arguable as the indicators of who qualifies as Indigenous People are far from clear. Uncertainty arises because multiple legislation and accompanying regulations proffer divergent interpretations of these constitutional terms relating to recognising Indigenous People. The pressing need for such recognition stems not merely from a legal certainty standpoint but also from the quintessential guarantee that the state would protect and empower these communities, safeguarding their rich cultural heritage.
At its core, cultural heritage encapsulates monumental structures, edifices, and sites of cultural importance. Nevertheless, cultural heritage transcends mere tangible entities; it encompasses the intangible. As elucidated in Article 2 paragraph (1) of the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage, it encompasses diverse practices, representations, expressions, knowledge, and skills. It also includes instruments, objects, artefacts, and the cultural milieu with which communities, groups, and individuals occasionally identify. The Indigenous cultural heritage, thus, is not merely an artefact—it is a living testament to their identity, encapsulating their communal history and reflecting their social, spiritual, and cultural ethos.
As its title suggests, this article will explore whether the Bill presents a solid framework for the protection of indigenous cultural heritage or, if the Bill presents another barrier in the already complex legal landscape.
Given the intrinsic value of such heritage, the Indigenous People’s Bill was proposed. The Bill has found itself in and out of the Legislature since 2012.
INDIGENOUS PEOPLES IN INDONESIA AND THEIR CULTURAL HERITAGE
As delineated by AMAN, Indigenous Peoples are communities anchored in ancestral origins. These origins, handed down over generations, thrive on customary lands, empowering the community with sovereignty over the land and its bounteous natural resources. The daily sociocultural fabric of these communities is interwoven with customary laws and institutions, ensuring the society’s perennial continuity. A unique tapestry of customary law communities unfurls across every province of Indonesia, each adorned with its distinct characteristics, some of which have flourished for centuries. This mosaic of communities underscores Indonesia’s vast repository of cultural heritage.
In his seminal work, Graeme Davison explains cultural heritage as a confluence of tangible cultural artefacts birthed from specific traditions (tangible heritage) and the intangible spiritual echoes of bygone eras that sculpt the identity of a collective or a nation. While the immediate perception of cultural heritage might gravitate towards physical structures such as monuments and temples, it spans beyond that. It embraces the intangible — artefacts, inscriptions, culinary traditions, attire, musical instruments, oral traditions and expressions, theatrical arts, rites and festivals, the reservoir of knowledge about nature and the cosmos, or age-old craftsmanship.
The role of Indigenous Peoples in Indonesia’s tapestry is cardinal, traversing the environmental, social, and cultural domains, thus affirming that their very existence is emblematic of Indonesia’s heritage. Their stewardship extends to protecting ecosystems, fostering cultural diversity, and safeguarding ancestral legacies, all rooted in customary laws, some ancient. A deep dive into their practices reveals intricate rules for environmental conservation and judicious utilisation of resources. These regulations span domains from water bodies and marine resources to forestry and spatial planning. For example, the Indigenous People of Muntei in South Siberut, Mentawai, are underpinned by a belief that all objects, imbued with spirits or “sumangot“, command respect and should not be mishandled.
Further south, the Indigenous People of Basemah in Lahat, South Sumatra, are celebrated for their “petata petiti baghi“. This set of rules precludes community members from polluting river sources, discarding twigs or waste into rivers, and embeds ancestral decrees underscoring the sanctity of rivers and lakes as communal assets. With such spiritual values at their core, the Indigenous People’s role in Indonesia is magnified in conserving cultural heritage and indigenous wisdom. However, this necessitates the state’s intervention in the form of robust legal protection. Such protection ensures clarity, legal certainty, and guarantees from the extant laws, protecting the community’s rights and interests, provided these do not clash with overarching laws.
Regrettably, the pendulum of government policies sways heavily towards investment-centric and economic expansion pursuits, relegating Indigenous Peoples to the margins. A glaring testament to this trend is the ordeal of the Indigenous People of Besipae in NTT, who were ousted from the Pubabu customary forest. The provincial government earmarked this 3,700-hectare tract for pastoral, plantation, and tourism purposes, ostensibly for the benefit of the Indigenous People. However, these forests are the lifelines preserving cultural traditions handed down across generations.
The Indigenous People’s traditional acumen in stewarding and safeguarding their surroundings is a treasured cultural heritage. Indigenous wisdom, such as Java’s “pranoto mongso” and “nyabuk gunung“, Badui’s “buyut“, “pikukuh“, and “dasa sila“, Bali’s “subak” water canalisation tradition for agriculture, Papua’s local zoning wisdom, and Sunda’s “karuhan” that orchestrates forest and water management through “lubuk larangan” knowledge, are all a testament to traditions maintaining ecological equilibrium. Such ancestral pearls of wisdom, handed down through the annals of time, underscore the harmony with nature.
PROVISIONS OF THE INDIGENOUS PEOPLES BILL
The Indigenous People’s Bill brings to light the procedural steps for recognising Indigenous People within the boundaries of Indonesia. Whilst the Bill strives to acknowledge and protect the rights of indigenous peoples, a closer examination reveals its strengths and weaknesses. Central to this Bill is the emphasis on a structured recognition process that Indigenous People must navigate prior to acquiring protection and empowerment. This journey begins with an examination by a dedicated committee. This body, drawing upon the guidelines in the Bill, embarks on identifying, verifying, and validating Indigenous People within a specific region. Following this, the legal status of the community is affirmed through a Regional Regulation.
Upon successful recognition, the Indigenous People find themselves endowed with a spectrum of rights. These encompass rights over customary lands, rights to harness natural resources, developmental rights, the sanctity of their spirituality and culture, and environmental rights. Nonetheless, the Bill also underscores the responsibilities intertwined with these rights. Key provisions establish the definition and recognition of indigenous communities, their rights over ancestral domains, and, critically, the rights to their intangible and tangible cultural heritage. To amplify empowerment endeavours for these communities, the Central and Regional Governments moot an integrated information system. This system is intended to hold data on recognised Indigenous People. In addition, the Bill delineates the roles and competencies of the Central and Regional Governments, emphasising data compilation and the creation of special committees vested with the task of identification, verification, validation, and official recognition.
Regarding cultural heritage protection, the Bill unambiguously asserts the rights of recognised Indigenous People. This protection envelopes the nurturing and conservation of local wisdom and culture. This is paramount not only for maintaining environmental functions but also for safeguarding traditional knowledge, wisdom, and the plethora of cultural treasures and traditional artefacts.
ONE CHALLENGE: UNREGISTERED INDIGENOUS COMMUNITIES
Articles 18 and 19 of the Indigenous People’s Bill shed light on the earnestness with which the government approaches the indigenous issue. Nevertheless, delving deeper into these articles surfaces a pressing concern: Does the shield of legal protection extend to Indigenous People who have not yet been formally registered or acknowledged?
The UUD NRI 1945’s Article 18B, paragraph 2, offers a clear stance. It carves out a space for the Indigenous People, stipulating that these provisions should be universally applicable to all Indigenous communities, in the absence of any bureaucratic hindrances. It is paramount to highlight the administrative challenges in recognising indigenous communities. Unregistered communities remain ‘invisible’ in the legal framework, implying their cultural heritage is exposed and vulnerable. With the recognition process having reached its terminus, its administrative aspect lingers. Therefore, any debate surrounding the destiny of Indigenous People sans legal recognition should pivot back to the constitution. This foundational document validates Indigenous People’s presence and emphatically avers the state’s commitment to safeguarding every Indonesian citizen. Consequently, the onus rests with the state to ensure legal protection for all Indigenous communities. This encompasses a mandate to safeguard their domains and rich cultural tapestry, even in the absence of formal legal recognition. For the Bill to be a robust framework, it is imperative that it not only tackles the aspect of registration but also extends comprehensive protection to registered and unregistered communities, ensuring that their cultural heritage, tangible and intangible, is preserved and protected.
OPPORTUNITIES: COMPARISONS WITH OTHER LEGISLATION
It is imperative to note that despite the hurdles, various national legislations provide a semblance of optimism. Indeed, over fourteen sectoral national laws assure the recognition of the Indigenous Peoples’ traditional rights. These encompass rights to customary land, waters, forests, grazing zones, and other inherent rights. The Water Resources Law and the Forestry Law are exemplary, providing automatic protections for the customary rights of Indigenous Peoples. Specifically, Article 9, Paragraph (3) of the Water Resources Law elucidates the customary rights, explicating detailed parameters about the community, its domain, and the intricate relationship therein.
Law No. 5 of 1960 on Basic Regulations of Agrarian Principles (UUPA) emerges as a beacon in a constitutional prism. Stemming from Article 33, paragraph (3) of the UUD NRI 1945, the UUPA offers a regulatory outlook on the state’s dominion over land, water, and natural resources. Despite the overarching state control, UUPA underscores that the customary rights of customary law communities remain intact. This is cemented in Article 3 of the UUPA.
Additionally, the forestry sectoral regulations remain most aligned with customary rights, primarily because they directly address Indigenous Peoples’ lives’ realities. While Law No. 41 of 1999 on Forestry initially overlooked the customary forests (ulayat forest), the Constitutional Court Decision 35/2012 remedied this oversight, ensuring customary forests were distinct from state forests.
RECOMMENDATIONS FOR CHANGES AND RE-EVALUATION
At its core, the Indigenous Peoples Bill has the potential to robustly preserve the cultural heritage of Indonesia’s Indigenous communities. Foremost, the Indigenous Peoples Bill must transcend the administrative quagmires that have until now impeded Indigenous Peoples’ spatial rights. Instead, the mainstay should be a more comprehensive appreciation, an end to sectoral fragmentation, and a streamlined recognition procedure.
The constitutional affirmation, courtesy of UUD NRI 1945, has always underscored the importance of the Indigenous Peoples. Thus, the Bill’s acknowledgement lens must evolve towards a more declarative stance, reinforcing the idea that Indigenous communities are integral to Indonesia’s cultural fabric.
Moreover, whilst procedural guidelines might persist, the Bill must unambiguously stress that legal protection blankets all Indigenous Peoples, irrespective of their formal status. Predicating the protection of Indigenous Peoples and their invaluable cultural heritage on mere recognition further ostracises an already marginalised group. One pivotal recommendation would be to streamline the protection mechanisms within the Bill. While its current rendition is laudable, it presents sectoral protection, inherently leaving room for potential lapses and overlaps. A refined version of the Bill necessitates an integrated, holistic approach to addressing cultural heritage’s multifaceted nature. The Bill should meticulously outline the state’s duties, regardless of the formal recognition of Indigenous Peoples, especially when their cultural legacy and habitats are threatened.
An overarching assessment suggests that the Indigenous People’s Bill, in its current format, has yet to entirely champion the rights and interests of the Indigenous People, especially concerning their cultural heritage protection. Despite being conceptualised to simplify the intricate recognition process of the Indigenous People, the Bill seemingly strays from its foundational objective. Given that the constitution acknowledges the Indigenous People, it is disappointing that Indigenous People are still confronted by a bureaucratic maze before they are recognised. The non-recognition prevents them from enjoying state amenities, including empowerment and protection.
Notwithstanding its inadequacies, the Indigenous People’s Bill remains a monumental stride towards realising and giving form to the constitutional rights of the Indigenous People. It resonates especially with their environmental, territorial, and spiritual rights. Hence, it can be optimistically viewed as a framework through which indigenous cultural heritage remains protected from potential conflicts and aggressive interests which may seek to destroy the cultural heritage, environment, and cultural identity of these People.
Top of Form
Davison G. and Chris McConville, A Heritage Handbook. (1st edition, Allen & Unwin, 1991).
Journal and Research
Hanifah, Kearifan Tradisional Masyarakat Pedesaan dalam Pemeliharaan Lingkungan di Kabupaten Lahat, Sumatera Selatan,” (Laporan Penelitian, 1995) 2-3.
Kusnadi and others, Kehidupan Sosial Budaya Masyarakat Terasing Mentawai (Laporan Penelitian, 1995) 102-105.
Salim H.M., ‘Adat Sebagai Budaya Kearifan Lokal Untuk Memperkuat Eksistensi Adat Ke Depan’  JHPDK, 244, 247.
Vecco M., ‘A definition of cultural heritage: From the tangible to the intangible’ , JOCH 321, 322.
Kurnia Warman, ‘Warman, Kurnia. “Peta perundang-undangan tentang pengakuan hak masyarakat hukum adat’ https://procurement-notices.undp.org/view_file.cfm?doc_id=39284 accessed 19 August 2023
The 1945 Constitution of the Republic of Indonesia.
Law No. 5 of 1960 on Basic Regulations of Agrarian Principles
Law No. 41 of 1999 concerning on Forestry
Indigenous Peoples Bill
Constitutional Court Decision Number 31/PUU-V/2007
Constitutional Court Decision Number 35/PUU-X/2012
The 2003 Convention for The Safeguarding of the Intangible Cultural Heritage Convention
 Setyawati Fitrianggraeni holds the position of Managing Partner at Anggraeni and Partners in Indonesia. She also serves as an Assistant Professor at the Faculty of Law, University of Indonesia, and is currently pursuing a PhD at the World Maritime University in Malmo, Sweden. Additionally, Fildza Nabila Avianti is a Senior Research Associate in the Ocean-Climate Research Group and Sri Purnama is a Junior Legal Research Analyst at Anggraeni and Partners, while at the same institution. The writers express their gratitude to Dr. Hary Elias for generously dedicating his time to provide valuable feedback on their article.
 Marilena Vecco, ‘A definition of cultural heritage: From the tangible to the intangible’ , JOCH 321, 322.
 Article 2 paragraph (1) of the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage.
 Risda Asfina and Ririn Ovilia, ‘Be Proud of Indonesian Cultural Heritage Richness and be Alert of Its Preservation Efforts in the Global World’ , Humanus 192, 198.
 AMAN. ‘Mengenal Lebih dekat AMAN (Draft Final)’, , 9.
 Graema Davison and Chris McConville, A Heritage Handbook. (1st edition, Allen & Unwin, 1991).
 Kusnadi and others, Kehidupan Sosial Budaya Masyarakat Terasing Mentawai (Laporan Penelitian, 1995) 102-105.
 Hanifah, Kearifan Tradisional Masyarakat Pedesaan dalam Pemeliharaan Lingkungan di Kabupaten Lahat, Sumatera Selatan,” (Laporan Penelitian, 1995) 2-3.
 H. Munir Salim, ‘Adat Sebagai Budaya Kearifan Lokal Untuk Memperkuat Eksistensi Adat Ke Depan’  JHPDK, 244, 247.
 See, Article 6 of Indigenous Peoples Bill.
 See, Section IV Rights and Obligations of Indigenous Peoples Bill.
 Article 18 of Indigenous Peoples Bill.
 See, Alinea IV Preamble of the 1945 Constitution of the Republic of Indonesia.
 Kurnia Warman, ‘Warman, Kurnia. “Peta perundang-undangan tentang pengakuan hak masyarakat hukum adat’ https://procurement-notices.undp.org/view_file.cfm?doc_id=39284 accessed 19 August 2023.
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