INTERNATIONAL JOURNAL OF INDONESIAN STUDIES SPRING 2016
Abdurrahman said that there are no legally-based indigenous peoples in South Kalimantan . 23 His argument was influenced primarily by Ter Haar , who stresses that in order to be recognised as a ‘ legal entity ’, indigenous peoples must be politically rather than culturally constructed . Ter Haar ( 1948 ) determines four requirements for legally-based indigenous peoples :
( 1 ) The community has well organised groups ; ( 2 ) The community has its own territory ; ( 3 ) The community has its own tribal institution ( in particular a tribal court ); and ( 4 ) The community has both material and non-material ( spiritual ) goods .
This paper disagrees with the classification for the following reasons : First , it may lead to a false dichotomy . Indigenous peoples , like any other community , must be constructed culturally ; culture is the starting point for every social norm and law in the community . In fact , the living adat laws are a reflection of the culture . Therefore , a dichotomy between culturally-based indigenous peoples and legally-based indigenous peoples is a fallacy . Second , the concept of the legally-based indigenous peoples currently used by the Constitution and legislation may lead to discrimination . This may occur , because there will be indigenous peoples whose cultures and traditions are appreciated , but not recognised as legal entities by the State , and there will be indigenous peoples whose cultures and traditions are both appreciated and recognised as legal entities by the State . The concept of indigenous peoples must be holistically understood as a cultural , political and legal entity .
Traditional dispute resolution ( TDR )
Many Indonesian scholars such as Abdurrahman ( 2002 ), Medan ( 2012 ) and a leading Indonesian NGO concerned with indigenous peoples and human rights such as AMAN ( 2003 ) utilise the concept of adat court ( peradilan adat ) to depict indigenous dispute resolution within indigenous communities .
Ter Haar ( 1948 ) focuses on what he called tribal adat courts as a fundamental prerequisite for legally-based indigenous peoples . Based on his argument , the concepts of indigenous peoples and TDR are inseparable . As a result , Abdurrahman states that there are no legally-based indigenous peoples in South Kalimantan , because there are no adat courts in South Kalimantan . It is true that there is no adat court in South Kalimantan , and maybe in other parts of Indonesia , because the form of dispute settlement used is not even close to a ‘ court ’. TDR is a communal forum aiming to settle disputes peacefully . The tribal chief is not a ‘ judge ’, rather , the tribal chief acts as a facilitator and communicator to stabilise the community .
Ter Haar ’ s perspective on Indonesian indigenous peoples was influenced by his civil law background , similar to Vollenhoven whose theory places adat sanctions as the cardinal requirement in deciding and grouping indigenous peoples . In rebutting Vollenhoven ’ s sanction theory , Malinowski refines substantially the notion of sanction on adat by converting sanction into the principle of reciprocity which is not derived from formal State
23
Interview with Abdurrahman , a Justice of the Supreme Court , Banjarmasin , 3 January 2014 . 107 | P a g e