International Journal of Indonesian Studies Volume 1, Issue 3 | Page 106

INTERNATIONAL JOURNAL OF INDONESIAN STUDIES
SPRING 2016
community (Benda-Beckmann F and K, 2009, 177). The living law, because of its general
characteristic, can be classified as a principal taxonomy (genus), and the customary law as a
part of living law can be classified as a its species.
Living adat law is a real manifestation of the people’s legal culture. It is an unwritten
and genuine law of Indonesia which has been influenced by religious laws. Even though it is
considered to be indigenous or primitive law, adat as a living law has several general
concepts, elements, and divisions that are consistently ordered. Thus, living adat law can
legitimately be termed a legal system (Soepomo, 1980, 12).
Philosophically, living adat law is divided into two laws. First, adat yang berbuhul mati,
which literally means adat that is tied to death, is a strict adat law. It is neither negotiable
nor adaptable to changes or context, and is dogmatic and transcendental in nature. Second,
adat yang bertali hidup or adat pusaka, which means a flexible and fluid adat, is a law that
passes from one generation to the next and is subject to social change (Koesno, 1998, 45).
This adat is sociological in nature; adat as a living law grows and thrives within the
community.
Even though, both terminologies share many similarities and differences, this paper
will use living law or adat law interchangeably as the primary terminology, because nothing
can accurately reflect and explain original Indonesian values better than our ‘own’ language
and words (Messier, 2008, 10).
Indigenous peoples of Indonesia
There are contested definitions of indigenous peoples, which both international and
national organisations have provided. Internationally, the ILO Convention No 107 defined
indigenous peoples through patronising language and talked about integration policies. This
resulted in policies to integrate indigenous peoples into the majority class, rather than to
appreciate their distinctiveness. In the 1980s, the ILO refined their previous convention into
ILO Convention No 169, which is more culturally responsive in that it distinguishes between
‘tribal people’ and ‘indigenous peoples,’ but appreciates that there is some overlap as they
are not mutually exclusive categories.
The UN issued the United Nations Declaration on the Rights of Indigenous Peoples
(UNDRIP). However, this document is not legally binding. Both the ILO Conventions and
UNDRIP are considered insufficient in comprehensively defining indigenous peoples. The
definition of indigenous peoples itself warrants less focus than, first, how that definition is
used to hinder or limit the sovereignty of indigenous peoples, and second, the issue of how
the power of ‘defining’ is used to achieve a ‘hidden agenda’ from interest groups (Bahar,
2008, 25).
At the national level, according to Ter Haar (1948) and Soekamto (1998), the
indigenous community is divided into two groups: a culturally based indigenous community,
which is independent from the State structure, and a legally-based indigenous community
(adatrechtgemeemschappen), which is politically-based and functions within the State
structure. Only the second group can be recognised by the State as a legal subject and these
are further divided into the subgroups of genealogic, territorial and a mixture of the two.
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