HuMa – Epistema Institute

Tobelo, April 20, 2012

Introduction

One of the discussions held as part of the AMAN IV Congress in Tobelo, North Halmahera was about the Indigenous Autonomy of Indigenous Peoples. This discussion was organized by HuMa and Epistema Institute. The theme of indigenous peoples’ autonomy does not only discuss how to regulate the lives of indigenous communities internally, but also talks about the relationship of indigenous community with other communities, corporations, and the state. Autonomy does not exist for itself (internal), but also in its capacity to interact with other entities (relational). Therefore, discussing autonomy cannot be separated from discussing the subjectivity of indigenous peoples themselves as a social, political, and legal entity.

To discuss the indigenous autonomy related to the issue of the existence of indigenous peoples as legal subjects, this panel was held in two sessions. The first session discussing the social unit of indigenous peoples as legal subjects was presented by Yando Zakaria and Hedar Laudjeng, moderated by Yance Arizona. The second session discussing the issues of indigenous peoples as legal subjects was presented by Prof. Tamrin Amal Tomagola and Sandra Moniaga, moderated by Noer Fauzi Rahman. The participants in this discussion session reached more than 150 people, showing their enthusiasm to engage in discussions, respond, and ask questions based on the speakers’ presentations.

Discussion

In this discussion, there are several main issues raised, including: First, concerning the situation of land grabbing from indigenous communities. The reality is that until today, many ancestral lands of indigenous peoples are seized by corporations and the government. Some of them are displaced from their land, while others are struggling to defend and reclaim their ancestral lands. The existing legal regulations are still inadequate to restore the rights of indigenous peoples to their land. There are two main legal issues that are still relevant for discussion: (1) Regarding the unit and legal status of indigenous peoples as legal subjects; and (2) The issue of administering the rights of indigenous peoples over their land and other natural resources.

Second, formulation regarding the social unit of indigenous peoples as legal subjects. The social unit of indigenous peoples as legal subjects needs to be clarified. It ranges from families, kinship groups, original villages, ethnic groups, to kingdoms. The social units that are members of AMAN need to be viewed within these various social units. This is important to determine who is actually being fought for. The Indonesian Constitution distinguishes between the unity of customary communities with kingdoms and sultanates as stated in Article 18B paragraphs (1) and (2) of the 1945 Constitution. Article 18 paragraph (1) of the 1945 Constitution refers to kingdoms and sultanates. Meanwhile, Article 18B paragraph (2) refers to the unity of customary law communities. Determining the social unit of AMAN members and also those who become social units as legal subjects is related to the original rights of indigenous peoples over their land and other natural resources, becoming one of the important issues to become the legal basis and basis of the struggle to reclaim or maintain the ancestral land of indigenous peoples.

Third, the gap in the reality of the social structure of some AMAN members with AMAN’s vision that aspires to indigenous peoples being sovereign, independent, dignified, fair, and democratic. Membership in the AMAN organization must be selective, only indigenous peoples who have been identified as groups/communities that preserve and defend their homeland, not Kingdoms or Sultanates. Indigenous peoples are also challenged to have the ability to prove the existence of indigenous peoples through political and economic activities, in addition to strengthening the formal status of indigenous peoples as legal subjects. Because, besides being legal subjects, indigenous peoples are also social, political, and economic subjects. Democratization within the internal structure of indigenous peoples also needs to be considered to give rights to women and other marginalized groups to participate in the planning and utilization of indigenous peoples’ land.

Fourth, the relationship between indigenous peoples and villages. The relationship of indigenous peoples with villages appears in various patterns in practice. Future regulations should consider this diversity by not imposing the same village governance system throughout the entire republic. In this regard, there are also developments in various regions regarding the experiences of interactions between indigenous peoples and villages. For example, in the nagari government model in West