Leiden Law Blog

The benefits of being traditional

The benefits of being traditional

In July we attended a conference at the University of Indonesia in Jakarta. The general theme was the impact of the democratic turn following Suharto’s fall in 1998 on people’s welfare, and the challenges of social inequalities and inclusion. When the government wants to provide social support to reduce inequality a main policy question is to whom that support should be targeted? That question currently has three answers in Indonesia: to villages, to individual citizens and to indigenous communities. The 2014  Village Law channels government funds for local rural development to villages. In turn, social support programmess for the poor target individual citizens. Still others claim that the indigenous customary communities represent the people and should be acknowledged as the rightful units of the local society and economy. A conference panel questioned the inclusiveness of customary, indigenous communities. “Where one has inheritances, one has inheritors, and too often bitter quarrels among them as to who has “rights” to the inheritance: sometimes to the point of great violence. People who think that the “abstract” Indonesia is a traditional “inheritance” to be preserved at all costs may end up doing terrible damage to the living citizens of that abstract geographical space” the panel explained.More than 100 years ago professor van Vollenhoven of Leiden University categorised these indigenous communities into groups with similar internal rules and characteristics, promoting the concept of adat law. At that time he was not only a scholar but also an activist. He wanted to show politicians in the Dutch parliament that farmers in the Netherlands Indies had land rights based on their own legal system. He argued that the colonial government should respect those rights. At the conference in Jakarta Arianto Sangaji explained how Indonesian activists in the 1990s used ‘masyarakat adat’ (customary communities) in a similar way, while campaigning for land reform. They claimed that the land belonged to these communities and not to project developers, even if the latter had the property legally documented. They used ‘customary communities’ for advocacy, avoiding banned terms like ‘land labourer’ or ‘peasant’ that were associated with communism.

Internal division is a reality

Since 1998 support for indigenous communities seems to have gradually turned into an industry in its own right. International funding agencies have supported organisations and projects aimed at reviving customary communities and their traditions. These programmes have strengthened the bargaining position of local farmers against plantation companies or project developers that pushed them off their land. Land was the goal, revival of traditions the means. However what has happened since the communities’ rights were recognised has never been subjected to much research or media attention. Researcher Herry Yogasawa of the National Institute for Scientific Research (LIPI) pointed at the internal divisions and diverging interests of traditional communities. His research shows that rather than external threats, the biggest ‘issues’ that the indigenous community he researched faces are internal disputes over land, often between members of one family. According to Herry, activists campaigning for indigenous land rights rarely consider these issues. Elite capture within indigenous groups is not a popular subject either.

Another question is: who qualifies for recognition as an indigenous community? Discussions about criteria and definitions during the Jakarta conference indicated that this is not about finding objective answers. There are legal criteria, but in practice recognition of customary communities depends very much on local governance. For example, the Ministry of Tourism provides funding for the building of traditional clan houses hoping that the ‘new traditional’ buildings will attract tourists and generate income. These houses are regarded as symbols of the existence and unity of the customary community and serve at the same time to strengthen the communities claims on land and other natural resources.

Ongoing support whilst avoiding elite capture

How decisions are made within customary communities, and who benefits, becomes more important matters when the material stakes get higher. In 2015 the World Bank announced that “an innovative new grant program for fighting forest loss is putting project design and funding decisions in the hands of indigenous peoples and local communities. The program gives them the power to set priorities and implement programs aimed at conserving their natural environment.” Avoiding elite capture will be a major challenge for this programme. At the Jakarta Conference, Riwanto Tirtosudarmo (LIPI) emphasised that targeting social support to traditional indigenous communities might not do justice to the huge variety of marginalised people in Indonesia, many of whom can hardly be called traditional anymore and are not represented by the leaders of indigenous communities.

The discussion will continue in Indonesia and in the coming Leiden Asia Year. Please note 22-23 May 2017 in your agenda for the upcoming workshop in Leiden “Adat law 100 year later: towards a new interpretation?”

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