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agreements, namely: Convention of International
Labor Organization Concerning Indigenous and
Tribal People in Independent Countries (1989),
Declaration of Cari-Oca on the Rights of Indigenous
Peoples (1992), Declaration of the Earth Rio de
Janairo (1992), Declaration on the Right of Asian
Indigenous Tribal People Chianmai (1993), De
Vienna Declaration and Program Action formulated
by the United Nations World Conference on Human
Rights (1993). Now the term indigenous people is
increasingly officially using it with the birth of the
United Nations Declaration on the Rights of
Indigenous People in 2007.
In terms of terminology, many experts are trying
to define who is indigenous. Maria Rita Ruwiastuti,
for example, stated that the community is a
community group whose ancestors were beginners in
that place, whose relationship with agrarian sources
was regulated by local customary law.
3
F.D.
Hollenmann in Husen Alting, constructs 4 (four)
general characteristics of indigenous peoples, namely
religious, communal, concrete and cash.
4
The debate about the terms and definitions of
indigenous peoples still continues to this day both at
the international level and at the national level of
Indonesia. At the Indonesian national level, there
have been many laws and regulations governing
indigenous peoples quantitatively, although until now
there has been no specific law on indigenous peoples.
Starting from constitutional norms, laws, ministerial
regulations and even local regulations that have
regulated many indigenous peoples and their
traditional rights, but among the various laws and
regulations have not been aligned with one another.
There are various terms used, ranging from the
terms indigenous peoples, indigenous law
communities, customary law community units,
traditional communities, remote indigenous
communities, traditional villages or other names. Of
the various terms that exist, the term customary law
community is most widely used. The term customary
law community is used as a category of grouping of
people called customary law communities
(rechtsgemeenschappen) which is a community
where all members of the community are bound as a
whole based on the law used, namely customary law.
The term indigenous peoples is used in the Human
3
Maria Rita Ruwiastuti, 2000, Sesat Pikir Politik Hukum
Agraria : Membongkar Alas Penguasaan Negara atas Hak
– Hak Adat, Yogyakarta: Kerjasama Insist Press, KPA dan
Pustaka Pelajar, page. 177.
4
Husen Alting, 2010, Dinamika Hukum dalam Pengakuan
dan Perlindungan Hak Masyarakat Hukum Adat Atas
Tanah , Yogyakarta: LaksBang PRESSindo, page.46.
Rights Law, Forestry Law, Plantation Law and
Environmental Protection and Management Law.
This term is a translation of the
Rechtsgemeenschaapen Customary term popularized
by Ter Haar.According to Ter Harr, the indigenous
community is devided into two groups: a culturally
based indigenous community, which is independent
from the State structure, and a legally -based
indigenous community, which is politically-based
and functions within the State structure. Only the
second group can be recognissed by the State as a
legal subject and these are futher divedid into the
subgroup of genealogic, territorial and mixture of the
two.
5
The term indigenous peoples is used in the Law
on the Management of Coastal and Small Islands.
Indigenous Peoples are defined as coastal groups that
have traditionally lived in a particular geographical
area due to their ties to ancestral origins, a strong
relationship with coastal resources and small islands
and a value system that determines economic,
political, social and law.
The term community is traditionally used in
Article 28I paragraph (3) of the 1945 Constitution, in
the Law on the Management of Coastal Areas and
Small Islands. Traditional communities are defined
as traditional fisheries communities whose traditional
rights are still recognized in carrying out fishing
activities or other legitimate activities in certain areas
that are in archipelagic waters in accordance with the
rules of international sea law.Meanwhile the term
indigenous remote community in Presidential
Regulation No. 186 of 2014 concerning Social
Empowerment of Remote Indigenous Communities,
is defined as a group of people who are bound by
geographical, economic and or cultural unity, and are
poor, remote, and / or socio-economic vulnerable.
The traditional village in the Village Law is
defined as a customary law community unit which in
addition to exercising its origin rights, also plays a
role in running government administrative
affairs.Various terms and definitions supported by
different agencies and different approaches in
looking at indigenous peoples show that when talking
about indigenous people, it is actually talking about
the contestation of concepts, legislation and
institutions that regulate indigenous peoples.
5
Haar, T.B, 1948, Adat Law in Indonesia, New York:
Institute of Pacific Relations.
Indigenous Peoples in Indonesia’s Constitutionalism Context
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