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All Journal Journal of Indonesian Legal Studies SAMARAH: Jurnal Hukum Keluarga dan Hukum Islam
Stoll, Peter-Tobias
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Law, Crime, Criminology & Criminal Justice Social Sciences

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The State’s Business Upon Indigenous Land in Indonesia: A Legacy from Dutch Colonial Regime to Modern Indonesian State Fahmi, Chairul; Stoll, Peter-Tobias; Shabarullah, Shabarullah; Rahman, Malahayati; Syukri, Syukri
Samarah: Jurnal Hukum Keluarga dan Hukum Islam Vol 8, No 3 (2024): Samarah: Jurnal Hukum Keluarga dan Hukum Islam
Publisher : Islamic Family Law Department, Sharia and Law Faculty, Universitas Islam Negeri Ar-Raniry

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.22373/sjhk.v8i3.19992

Abstract

The indigenous populations of Indonesia have experienced the deprivation of their rights to their ancestral lands since the era of Dutch colonialism. This article seeks to analyse the occurrence of the rights of indigenous peoples to their ancestral territories, and the state’s right claim over indigenous customary lands. This study is a qualitative method with a socio-legal research approach, focussing on theoretical and empirical work, combining doctrinal and non-doctrinal analysis for data interpretation. The findings indicate that the transfer of collective rights from indigenous communities to state authorities is rationalised through the omission of acknowledgement of unwritten customary law and the imposition of a positive legal framework centred on individual rights rather than collective rights. In contrast, the state acknowledges indigenous land rights to a restricted and contingent extent, contingent upon indigenous communities substantiating their rights within the framework of the state's legal system, maintaining occupation of their ancestral lands, and ensuring that such rights do not impede the state's business and economic interests. 
Defining Indigenous in Indonesia and Its Applicability to the International Legal Framework on Indigenous People’s Rights Fahmi, Chairul; Jihad, Azka Amalia; Matsuno, Akihisa; Fauzan, Faisal; Stoll, Peter-Tobias
Journal of Indonesian Legal Studies Vol 8 No 2 (2023): Contemporary Issues on Law, Development, and Justice: Indonesian Context and Beyo
Publisher : Universitas Negeri Semarang

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.15294/jils.v8i2.68419

Abstract

This paper aims to analyse the concept of indigenous peoples in Indonesia and examines whether the concept is appropriate with an international legal framework. Analysing the concept is essential to legitimising indigenous rights under the international law regime. The discourse on indigenous in Indonesia emerged after the government rejected an international treaty on indigenous rights and was reluctant to adopt the UNDRIP into their national law. The government opposes this by arguing that the concept of indigenous peoples under the international legal framework is inappropriate for the Indonesian context. Consequently, indigenous peoples in Indonesia do not benefit from international norms that have recognised and protected their rights globally. This paper found that the concept of indigenous peoples in Indonesia has similarities and is appropriate to the international instrument (ILO169 and UNDRIP). Thus, ratifying the ILO treaty or adopting the UNDRIP into national law will benefit the indigenous in protecting their fundamental rights, including their collective rights to traditional lands under international norms.
Co-Authors Azka Amalia Jihad Chairul Fahmi Fauzan, Faisal Matsuno, Akihisa Rahman, Malahayati Shabarullah, Shabarullah Syukri Syukri