Protecting Indigenous Communities in Indonesia: Reconciling Customary Rights, Human Rights, and State Obligations

Abstract

Indonesia is home to thousands of customary law communities, or masyarakat hukum adat, whose collective identity, territorial claims, and normative orders long predate the modern nation-state, yet whose legal status under national law remains persistently unsettled and contested at the level of practice. This article critically examines the tension between constitutional recognition of masyarakat hukum adat under Article 18B(2) and Article 28I(3) of the 1945 Constitution and the fragmented, sector-specific, and often discretionary manner in which that recognition is operationalized across forestry, agrarian, and village-governance legislation. Employing normative-juridical legal research supported by a qualitative, case-oriented review of Constitutional Court jurisprudence, statutory instruments, and international human rights standards, the article traces how Constitutional Court Decision No. 35/PUU-X/2012 reshaped the legal category of "customary forest" without resolving the antecedent and more fundamental question of who qualifies as a legally recognized customary law community. It further situates Indonesia's domestic framework against binding and non-binding international instruments, none of which Indonesia has yet fully incorporated into enforceable domestic obligations toward indigenous and customary peoples. The analysis demonstrates that constitutional recognition without an enabling national law functions as conditional and administratively revocable inclusion rather than a secure legal entitlement, leaving customary communities exposed to extractive investment, agrarian conflict, displacement, and criminalization. The article concludes that reconciling customary rights with human rights and state obligations requires the long-delayed enactment of a comprehensive law on masyarakat adat, harmonization of overlapping sectoral regulations, and a rights-based interpretation of the state's constitutional mandate to protect traditional communities consistent with their continued existence and evolving circumstances.