Indigenous Peoples and the Struggle for Control of the Forests1

Mia Siscawati Researcher at the Center for Anthropology Studies, Department of Anthropology,

Faculty of Social and Political Science, Universitas Indonesia Lecturer and Head of Gender Studies Graduate Program,

Graduate Program of Multidisciplinary Studies, Universitas Indonesia miasisca@gmail.com

Indigenous Peoples and the System of Forest Control and Management

Discussions on the forests and forest resources in the archipelago (Nusantara) cannot be separated from the existence of diverse communities that have social cohesion, cultural, spiritual, ecological, economic, and political attachment with the lands, territories, and forest ecosystems. Their existence and their role in forest management and forest resources have been recorded by researchers and scientists from various disciplines since the colonial era. However, in the New Order, the government considered a variety of forest managements, including forest-based agriculture, as a pattern of neglect that was destroying the forest. At that time, the government called these communities as "shifting cultivators2", "the opening-burningof the forest", "encroachment (perambah hutan)","tribes (suku terasing)", and so on.

The term "indigenous peoples (masyarakat adat)" was initiated by social movements’ activists in Indonesia in 1993, especially by traditional leaders from several regions, academics, activists and non-governmental organizations formed by Networks of Rights Defenders of Indigenous Peoples (Masyarakat Adat) (Japhama). The term was adopted in the first Congress of Indigenous Peoples held in March 1999. The Congress participants agreed that indigenous peoples are groups of people who have ancestral origin (hereditary) in a certain geographical area, and have a value system, ideology, economy, politics, culture, social, and their own region (Moniaga 2010; Sangaji 2010).3 The term "indigenous peoples" actually has a long history that is closely associated with the course of regional control (penguasaan wilayah) of land, and other natural resources by certain groups since the pre-colonial, colonial, up to the postcolonial era.

There is a term in Dutch that was developed in the colonial period, the "adat rechtsgemeenschap". The term is translated as "customary law communities (masyarakat hukum adat)" in the post-colonial period. The term "customary law community" adopted in the

1 This is a translation of the article by Mia Siscawati entitled “Masyarakat Adat dan Perebutan Penguasaan Hutan” in Wacana No. 33, Tahun XVI, 2014, pages 3-23. 2The development of the term "shifting cultivators" and "feller-burning forest" is also influenced by the international discourse related to the development of international agencies such as the Food and Agriculture Organization (FAO) and the World Bank. 3See Li (2000, 2001, 2010) and Sangaji (2010) for a critical review of the definition of indigenous peoples

legislation of Indonesia and is often used as a tool to limit the efforts of indigenous peoples to gain recognition, ie, with emphasis on the conditions of entry into force of "customary law". According to Soetandyo Wignjosoebroto, the term "customary law communities (masyarakat hukum adat" should not be read as a combination of the words "community" and "customary law", rather than "public law (masyarakat hukum)" and "custom (adat)". This argument is based on the word "rechtsgemeenschap" which translates to "legal community" or "federation law (persekutuan hukum)". Thus, the basic formation of words in the term "customary law community" is "public law (masyarakat hukum)" and "custom (adat)" (Rachman and Siscawati 2014).

Indigenous peoples in various parts of the archipelago have a variety of characteristics: some have traditional institutions with complex institutional mechanisms, others have a simple mechanism. There are indigenous peoples who developed the institutional mechanisms and feudal customary characteristics as well as male culture that is dominated by men, there are indigenous peoples who have egalitarian character and provide a space for women to be involved in decision making. Each group has its own dynamics with a history different from each other. Their living areas are also diverse, ranging from the mountains, valleys, meadows, until the coastal areas and small islands. In each area of life, indigenous peoples have a system of land use and land tenure that is dynamic and influenced by the development of natural hues, ecosystems, and a variety of social, cultural, economic, and political factors.

Various power relations that grow and thrive in the communities, including gender-based power relations and class, influenced the dynamics of land tenure systems and other natural resources, as well as land use systems and soil management systems and other natural resources. In many indigenous groups, women from diverse social backgrounds have various forms of relationship with the land and natural resources. They also play important roles in managing land and natural resources. However, they do not necessarily have control over land and natural resources, and are often excluded from decision-making in various domains (Siscawati 2014).

For the indigenous peoples and their (customary territory/indigenous territory (wilayah adat) that includes forests and other lands managed by combining forest management and forest-agricultural cultivation agroforestry(wanatani), use systems and land tenure that have rules for how women and men of various social groups use the land, diverse agro-forestry land (fields, orchards, timber gardens, old garden, etc.), a variety of forest land (forest that can be opened on a limited basis, protected forests, etc.), a variety of crops on these lands, and woody trees and other forest resources (water, forest vegetables, medicinal plants, honey, rattan, etc.). In each area, the system of land use and land tenure, as well as forest management and agroforestry land, has a name and a separate mechanism. Social scientists who conduct in-

depth research on these systems refer to them as the "system of agro-ecosystem management" (Dove, 1981, 1993).4 The environmental movement activists call systems of forest management by indigenous peoples and other local communities as "a system of community based forestry" (Siscawati 2012).5,6

The existence of indigenous peoples and diverse forest management systems that developed have been recorded in the reports of researchers since a long period of time. In the colonial period, some forestry experts examined community forest management systems in several places in the archipelago. One system of community based forests was in West Kalimantan, Tembawang, first reported by Dutch scientists in 1848. Meanwhile, the presence of resin gardens in Lampung and North Sumatra and incense gardens-both are mixed garden managed by mimicking natural forest patterns, reported by Dutch scientists in about 1850 (Brookfield, Potter, and Byron 1995). Resin gardens managed in agroforestry systems were also found in the Moluccas (Gonggrijp 1931, Center for Agricultural Publishing and Documentation 1982).

From the research of the colonial scientists, it is known that a variety of forest management systems in some areas had links with a network of international trade in forest products. One of the Borneo forest commodities that played a critical role in the colonial period, particularly in the 1880s, was gutta percha or sap from trees nyatoh (Palaquium sp.) and sap jelutung (Dyeracostulata) -both exported to supply the needs of industrialization in Europe and North America (Brookfield, Potter, and Byron 1995). That is, a dynamic system of forest management was developed by indigenous people in Borneo. Some plants were also developed by the people (through a variety of ways and is influenced by a variety of factors). Together with the advance of time, such plants became part of the system of forest management by indigenous peoples. One example is the rubber tree (Heveabrasieliensis), which was introduced by the

4Michael R. Dove is an anthropologist who studied the study of local agricultural systems in Borneo. Dove uses the term "agricultural shifting" in the first article that circulated in Indonesia, namely article published in the magazine Prisma in 1981, entitled "Systems and Reviews their swidden Potential Role in Agricultural Development: A Case-Study from Borneo" (Dove 1981). 5In order to develop a means of identifying a wide range of community based forest management systems, as part of efforts to support forestry and forest policy advocacy, environmentalists agreed to form the Consortium for Supporting Community Forestry System (Konsorsium Pendukung Sistem Hutan Kerakyatan/KpSHK) in 1997. 6 The Indonesian term is “Sistem Hutan Kerakyatan/SHK”. The activists who coined the term rejected to use “kehutanan” as they argued that kehutanan/forestry limits holistic management of forest resources (which include ecological, economic, socio-cultural and spiritual functions of forest resources). Therefore they decided to use the term “sistem hutan” to accommodate this holistic approach. They also rejected to use the term “masyarakat”, instead they decided to use the populist term “kerakyatan”. The activists who coined the term “Sistem Hutan Kerakyatan” usually translate the term as “people-based forest system” (Siscawati 2012). However, current propronents of this concept sometimes translate it as “community-based forest system”.

Dutch entrepreneurs and businessmen of Europe in the early 1900s (Brookfield, Potter, and Byron 1995).7

State Control of the Forest

Land use systems (sistem tata guna tanah) and land control (penguasaan tanah) by indigenous peoples drastically changed as a result of the practice of government policy related to state control over forests, since the colonial period. State control over forests continues today through territorialization of state control over forests. Territorialization is understood as "a process created by the state to control people and their activities by creating a line around the geographical space, blocking certain people from getting into the space, and allow or prohibit activities within the boundaries of the space" (Vandergeest 1996: 159). Meanwhile, the territorialisation of forest control is the method in which the power of the state over forest areas (wilayahhutan) applies within the boundaries of the forest area that are politically determined (by the state); state control over forest areas (wilayah hutan) are used to control the use of resources within the boundaries of the forest area (Vandergeest and Peluso 1995).

The process of state control over forests lasted through at least three stages of this territorialization. First the nation claimed all of the land that was considered as "nobody’s land (bukan tanah milik siapa-siapa)" as owned by the state (milik negara).During this stage, the state intended to earn income from the extraction of natural resources. The next stage was to establish the boundaries of the land that was declared as belonging to the state (milik negara) to emphasize control of the region by the state concerning the forest. Once the boundaries of a specified region were determined (ditetapkan), the area (wilayah)would be closed and the state would forbid anyone to access to the area concerning the forest resources in it, unless the state permitted (mengizinkan) or gave a concession (Vandergeest and Peluso 1995). The last stage was the state launched a program to divide the forests into a wide variety of functions based on scientific criteria, such as slope, rainfall, and soil type. The main result of this program was the zoning of an area concerning the types of activities that are permitted (diizinkan) in each zone (Vandergeest 1996).

Territorialization during the early stages of the country (Nusantara) occurred when the state (negara) established certain areas to be "forest zone (kawasan hutan)". The areas declared as the country's forest zone was stated by Peluso and Vandergeest (2001) as a "political forest (hutan politik)". Why is it called a "political forest"? First, the establishment of such areas as forest zone has a political background (including political economy). Second, the determination takes place through a political process of its own (and it is not possible through

7Rubber plants come from the Amazon.The plant was originally brought to the UK researchers Kew Gardens in England, then to Singapore in 1877 (Brookfield, Potter, and Byron 1995) .

its own political battles.) Third, influenced by political interests and established through discourse (wacana)of the political process, areas that have been designated as forest zone (kawasan hutan) may not be covered by forest or other woody plants (berkayu lainnya).In other words, land covered with weeds (alang-alang), farmland, unirrigated agricultural fields (ladang), or villages could be determined as part of the forest zone (kawasan hutan).

During the colonial era, the Dutch Forestry Office (Dienst van het Boschwezen)determined the political forest through the colonial forestry laws to decide the boundary between farmland and forests, as well as stating that all areas (wilayah) that have not been claimed by anyone are forest areas (wilayah hutan) as the state domain (Peluso 1992; Peluso and Vandergeest 2001)8. The institutionalization of political forests during the colonial era contributed to the formulation of the system of forest control (penguasaan hutan) and forest governance (tata kelola hutan) in Indonesia at the present time. The legacy of the concept of the political forest is still reflected in the access to forest resources, control, and exclusion through the authority (reproduksi otoritas)as an activity (aktif) that occurs in diverse communities (Elmhirst 2010). The Authority is ongoing, supported by various forces, and successfully determines the techniques and forms of resource access through the production of a certain categorization of geographic regions, including the highlands and remote islands, as the empty areas, isolated, backward or uncivilized to justify the opinion that the territorial and managerial control over these areas should be in the hands of the state (Li 2000, 2001 ; Moore 2005; Ribot and Peluso 2003; Sikor and Lund, 2009).

Postcolonial Indonesian government, particularly during the regime of Suharto's New Order, adopted the concept of the political forest and married it with the concept of forests of industrial scale (Konsep kehutanan berskala industri) as one of the main tools for the control (mengendalikan) of the land and forest resources. In particular, this approach was applied in order to further encourage the process of extraction of timber. To secure this process, the Suharto regime enacted the Law No. 5 of 1967 on Basic Provisions of Forestry, that continued the claim of the colonial government that all forest land is owned by the state (milik negara) and must be managed by a system of government control.

Following the promulgation of Law No. 5 of 1967, the forest land use policies (tata guna tanah hutan)was stated as the Forest Land Use Agreement (TGHK/Tata Guna Hutan Kesepakatan) or land-use planning by consensus, which was established by Government Regulation (PP) No. 33 of 1970 on Forest Planning and formalized in a series of Ministry of Agricultural Regulations in 1980 and 1981. Based on the TGHK of 1970, permanent forest (hutan permanen)were categorized into: (1) production forest (hutan produksi), which was

8A similar approach was also adopted by the British colonial government in India (see Agrawal 2001; Guha 1990; Sivaramakrishnan 1999) and Burma (see Bryant 1997)

intended to support the extraction of timber exports and then become an industrial forest (hutan tanaman industri) (64.3 million hectares), (2) protected areas (hutan lindung) (30.7 million hectares), (3) the area of forest conservation and nature reserves (18.8 million hectares), (4) production forest (hutan produksi} with a designation that can be changed (26.6 million hectares). At that time, the deadline for compliance with TGHK was planned to be in 1985. With the support of projects sponsored by the World Bank, the Minister of Forestry carried out the demarcation of forest land based on the TGHK policy.

TGHK policies and their derivatives were part of a state effort to develop teritorial control (teritorialisasi penguasaan) concerning forests at an advanced stage (hutan tahap lanjutan). As mentioned earlier, the first phase of the territorialization of state control over forests was the determination of the forest zone (kawasan hutan/hutan politik) in determining the political forest (hutan politik), which was the boundaries of forest zone and determine the zoning, and implementing a system of state-controlled forest management. The state carried out alienation (alienasi) of the indigenous peoples and local communities from their communal forest land.Through this process, the political forest regime developed a system of officially licensed to provide forest management access to private logging companies and State Owned Enterprises (BUMN), as well as industrial tree crop companies throughout the islands outside of Java. In the framework of the political forest (hutan politik) and forestry that was adopted by the New Order regime ignores the existence of a system of community-based forest management developed by indigenous peoples and local communities throughout Indonesia. The framework also causes the marginalization of indigenous women.9

Law No. 41 of 1999, which replaced Law No. 5 of 1967, firmly adopted the framework of the political forest and territorialization of state control over forests. Law No. 41 of 1999 does include indigenous forests, but categorized them as part of the state forest. Article 5 of this law states that "the state forest as referred to in paragraph (1) letter a, can be indigenous forests". Paragraph (3) in the same article states that "the government determines the status of the forest as referred to in paragraph (1) and paragraph (2); and adat forests are determined as according to the fact that the relevant customary law community still exists and is recognized ".All this indicates that Law No. 41 of 1999 does not refer to the claims made by indigenous peoples that indigenous forests existed long before the modern nation of Indonesia was proclaimed. Law No. 41 of 1999 does not recognize the rights of indigenous peoples to the forests.

9See Siscawati and Mahaningtyas (2012) for a preliminary assessment of the process of marginalization of indigenous women through the framework of the political jungle. Framework and similar processes also occur in the plantation sector, especially oil palm plantations (Julia and White 2012).

Opposition to State Control of the Forests and Restoration of Indigenous Peoples Citizenship

State control over forests paved the way for industrial scale extraction of forest resources devoted to supporting the production and consumption at a global level. Commodification of the forests and other natural resources at the global level, which worked below a system of the capitalistic market economy, encourages the development of capitalistic forestry in Indonesia. Close cooperation between state officials and timber traders, since the colonial period to the present time, made it possible on a wide scale for forested land acquisition by government agencies through the provision of forestry concessions to large corporations. State control over forests enabled government agencies, from the Netherlands Bureau of Forestry to the Ministry of Forestry at the present, to provide forested land on a large scale.

Various forms of injustice, including agrarian injustice, environment, gender, and social, which overrides the indigenous peoples as a result of the state's control over forests encourages the emergence of various forms of resistance that evolved into social movements. Polanyi (1957) called this movement as a "counter-movement", in an effort to protect the land, labor, and the sources of the life of the commoditization process. According to Polanyi (1957), counter-movements are formed because people recognize the risk of destruction and develop protective measures to rebuild their lives. Counterculture movements in Europe and America in the 19th century observed Polanyi (1957) have components of multi-classes and in it there is the role of the critic. Polanyi also observed movements are strategic coalitions among the various actors including critical citizens, experts who have a concern, and members of political leftist parties (Polanyi 1957). Polanyi does not conduct studies on how and when the rival movements began to form (Hart 2002).

Various forms of resistance against state control over forests were conducted by indigenous peoples in various parts of the archipelago are not a new phenomenon. Proponents of the environmental movement in Indonesia in the late 1980s began to interact with indigenous people and actions that gave birth to the counterculture movement on the state's control over land and forest resources commodities.

Participatory mapping, which was developed in the early 1990s as a resistance to the "deletion" of indigenous peoples and other local communities in the modern maps that were made or sponsored by the state, as well as resistance to the removal of indigenous peoples and other local communities living on their territory, is one form of a rival movement (Pramono 2014). However, participatory mapping is not without problems. According to Pramono (2014), map making is a modern discourse in participatory mapping that requires groups or agencies involved in this movement to be subject to the values, technologies, and practices of cartography. As a result of what happens is the exclusion of certain groups and their spatial

knowledge, including women and marginalized groups, who have very limited access to decision-making in the community.

Resistance of indigenous peoples to strengthening of state control since the establishment of the Indigenous Peoples Alliance of the Archipelago (AMAN) was in the first congress of indigenous peoples in March 1999. Since then, AMAN began an open struggle to achieve recognition and protection of the rights of indigenous peoples. AMAN’s struggle is the struggle for social justice. AMAN also fights for the citizenship rights struggle by the indigenous peoples in the Republic of Indonesia (Rachman, 2012, 2013). The combination of the struggle for social justice and citizenship is inextricably linked to the state's control is done through the denial of the existence of indigenous peoples and the deprivation of rights to land, natural resources, and the management area (wilayah kelola) at the same time is the indigenous peoples living space (Rachman 2014).

In order to realize the recognition and protection of the rights of indigenous peoples in Indonesia, AMAN implements a series of policy advocacy activities. For example, AMAN prepared the Draft Law on the Recognition and Protection of Indigenous Peoples (RUU PPMA), which formal documents that have already been submitted to the Chairman of the House of Representatives (DPR) Marzuki Alie during the IV National Congress of AMAN at Tobelo, North Halmahera, North Maluku, May 2012. Since then, AMAN continues to intensively monitor the drafting process of the PPMA in parliament and conducts a series of advocacy activities to mobilize political support from various parties. On April 11, 2013, the Plenary Session of the House of Representatives led by the Vice Chairman of the House of Representatives approved a stipulation by Pramono Agung on the Draft Law on the Recognition and Protection of Indigenous and Tribal Peoples' Rights became a draft law at the initiative of the DPR.

Fully aware that Law No. 41 of 1999 as a reference that has legalized land claims on the land and indigenous territory (wilayah adat) as state forest land (kawasan hutan negara), AMAN submitted for reconsideration of the discourse on the law. On March 19, 2012, an application was submitted by the AMAN along with two members of indigenous peoples, the indigenous people of Banten and Kasepuhan Cisitu Kenegerian Kuntu indigenous people of Riau. However, the involvement of indigenous women in the process of filing an application for review of Act No. 41 of 1999 to the Constitutional Court (MK) was very limited. All witnesses presented by legal counsel to represent some AMAN members of indigenous peoples in the proceedings in the Court were the witness of men who were leaders in the community. Gist of their testimony, as stated in the text of the Constitutional Court on case No. 35 / PUU-X / 2012, indicating the absence of a narrative about a variety of injustices faced by indigenous women and other marginalized groups in their respective communities and the region as a result of control of the area and customary land through Law No. 41 of 1999.

Meaning of the Court Decision on Case No. 35 / PUU-X / 2012 and its limits

On May 16, 2013, by the decision of case Number 35 / PUU-X / 2012 (hereinafter referred to Court Decision 35), the Court determined that the indigenous forests are no longer classified as state forest. The Constitutional Court's decision states that indigenous forest is no longer part of the state forest, but part of their forest right (hutan hak) (Article 5, paragraph (1)). Indigenous forest is a forest under a customary community (Article 1, item 6).Indigenous forest (hutan adat) is determined in accordance with the fact that the relevant customary law community still exists and is acknowledged (Article 5 (3)).

Constitutional Court's decision 35 marks a new chapter in state recognition of indigenous people in Indonesia. The Constitutional Court's decision was to recognize indigenous peoples as "penyandang hak(rights bearers)” and the subject of the law on their traditional territory (wilayah adatnya). Such decisions give legal recognition to indigenous forests previously claimed under control by the state and allocated to a variety of designations, either for industrial-scale production and conservation interests that put environmental sustainability at the top of social justice. Furthermore, the Constitutional Court's decision should be interpreted as a restoration of indigenous citizenship (Rachman 2014). The Constitutional Court's decision should be a reference for discourse on fundamental changes in the management of natural resources and other agrarian resources in Indonesia.

However, the Constitutional Court 35 has loopholes that can be used by those who want to maintain control of the state of the indigenous forests. Cracks are sourced from the refusal of the request for reconsideration of the recognition procedure of the traditional territory (which includes "indigenous forest/hutan adat") as contained in Law No. 41 of 1999, Article 67 paragraph (2) and (3). Roewiastoeti (2014) argues that "the refusal to confront indirectly the 'victory' of AMAN because the return of power over 'customary forests' to the federation10of customary law that the owner will not happen just like that, unconditionally, but still have a long way which cannot be separated from the power of the state as the operator of the legislation ".

Regardless of the denial of a reconsideration of the procedure for recognition of indigenous territories (hutan adat), political opportunities generated by the post-decision of MK 35 also has some limitations. Savitri (2014) explores three main limits to political opportunities facing the post-Decision MK 35. The first is the "limit which is creation of the necessity to confirm the existence of indigenous peoples as legal subjects through local regulations". Savitri (2014) argues that the position of indigenous peoples as subjects of the law can be "twisted" in such a way by the twists and turns of neoliberal regulatory state that a force that actually excludes

10Roewiastoeti (2014) uses the term "communion-customary law" to refer to indigenous peoples.

other groups of people, either through the mechanism of privatization and the transfer of responsibilities from the state of the responsibility for the community or corporation. The second limit is the tendency of the proposed approach to the bearers of the communalization of Court Decision 35 (which is called by Savitri as "public trustee"11) to the desired regulatory community towards the individualization of land. The third, and not the last, is in relation to the political project of education that is being run by concessionaires of the agrarian corporations (especially large plantations) in villages that are within their concessions. According to Savitri (2014), a political education project by the corporation could potentially encourage the creation of mental labor among the younger generation and can develop into a very effective tool to undermine the bond with the land. The political project sooner or later will take place in those areas and accelerate the appropriation of indigenous people's land for massive capital.

In addition to these limitations, the biggest challenge of the post-Decision MK 35 is the realization of natural resource management policies that are fundamental and comprehensive. The challenge is also characterized by the complexity of the dynamics of the race for natural resources at a variety of levels, from the national, provincial, district and community level (Arizona, 2014; Zakaria 2014). Meanwhile, the effect of the expansion of capital that continually pushes the incorporation process of the people and the land-area of Indonesia into the global market economy is a threat in achieving natural resource management policies fundamentally and comprehensively.

Future Dynamics in the Struggle for Forest Control in the Post-Decision of MK 35

Decision of the Constitutional Court 35 is responded to differently by a variety of actors. Various indigenous communities that are members of AMAN in various regions responded with various forms of action, one of them a signpost that stated "by Court Decision on Case No.35/2012, indigenous forest is no longer a state forest ". This action was known as "plangisasi."12 However, this action is critical to obtain responses from participatory mapping of indigenous women. They worry that, if the action is done unilaterally without communicating with their neighboring indigenous communities regarding the boundaries of indigenous territories, the action would "call the old wounds", i.e. horizontal conflicts among indigenous communities (Siscawati 2014).

The driver of participatory mapping is to mobilize resources for accelerating the process of participatory mapping. Activists and supporters of the indigenous movement must immediately

11 In use and employ this term, Savitri (2014) refers to the idea of Li (2007) 12Plangisasi action as a new tactic in the indigenous movement in Indonesia is interesting to study in depth. Anyone who is involved in the process plangisasi? What follow-up of plangisasi in connection with negotiations between indigenous peoples and the state and other parties who obtain a license from the state to develop agricultural concessions in their area? What are the implications plangisasi of social relations at the community level? Where the position of women in the series and its follow-up action plangisasi? Discourse

carryout consolidation to formulate strategic steps to follow up Decision MK 35. The Constitutional Court also has its own problems and challenges that are discussed by Pramono (2014).Participatory mapping also gained critical response of indigenous women. One of the leaders of indigenous women conveyed critically that "participatory mapping that has been taking place in many regions was an attempt to map the 'outer shell' of indigenous territories."13 In a separate conversation with the author, some indigenous women said that it is not only the process of participatory mapping effort to map the outer boundaries of indigenous territories. They put the participatory mapping process as a vehicle to re-establish the negotiation process of governance and land use and natural resources in indigenous territories, including the internal negotiation process at the community level that should include women from different social backgrounds.14

On the other hand, the Minister of Forestry and top officials in the Ministry of Forestry responded with a statement that reads almost uniformly, i.e. "the release of indigenous forests of state forest land can only be made by the Ministry if there is approval by the local government". The statement was formalized through the Minister of Forestry Circular No. SE.1 /Menhut-II/ 2013, issued on July 16, 2013. This circular has some errors. Roewiastoeti (2014) argued that the Minister of Forestry through the circular does not have the authority to remove the words in the law as the only authority possessed by the legislators. Other ministries and relevant state agencies provide different responses (Rachman 2014).

The latest response from the Ministry of Forestry which still contains the spirit of maintaining state control over forests is the Minister of Forestry Regulation No. P.62 / Menhut-II/2013 on the strengthening of the forest area that was published in response to the Constitutional Court ruling of 35 indigenous forests. It requires communities to provide official proof (in writing) about the claims on the land. For most of the indigenous peoples who live in an oral culture and rely on a system of shifting agriculture and various forest management systems, makes it difficult to get a constitutional right to their territory. The regulation is contrary to the spirit within Constitutional Court Decision 35 (Arizona, 2014; Pramono 2014).

At the local level, the Constitutional Court Decision 35 has its own significance and diverse response that also has its own direction of movement. Constitutional Court Decision 35 opened the door for indigenous peoples in various regions to regain control of indigenous lands and / or indigenous territories, including indigenous forests. However, there are various challenges at the local level, especially with regard to the recognition of indigenous peoples. In a study on the

13This opinion was delivered at a meeting on December 14, 2013 which discussed the interim findings of the study team that conducted participatory mapping at the Sajogyo Institute.

14Conversation is done through a number of occasions, including in the discussion on the National Working Meeting of Indigenous Women on September 9, 2013 and the Council meeting on 14 December 2013.

future of the race for the natural resources of post Decision MK 35 in the case of West Kutai, East Kalimantan, Zakaria (2013) discusses three possible theoretical models of society (law) that are considered able to meet the customary criteria listed in the Decision of the Constitutional Court 35. The form of the first is the indigenous people's existence is based on Regional Regulation (Perda) No. 12 of 2006 on the Conservation and Development of Indigenous and Tribal Peoples in West Kutai regency. The form of the second is the existence of indigenous society (legal) customs based on local regulations relating to the (government) village. The shape of the third is the indigenous communities whose existence is based on the growth of the indigenous people themselves, without having associated with the presence of local policies listed above. Zakaria (2013) showed that the range of possible forms of indigenous peoples who are considered able to meet the criteria is set forth in the Decision of the Court 35 that has implications for social, cultural, economic, and politically separate at the local level.

Various other legal opportunities begin to open up for the recognition of the rights of indigenous peoples at the national level. Law No. 6 of 2014 on Villages provides the possibility of the existence and legal recognition of indigenous rights in an integrated manner. This issue is very possible when government regulations on traditional villages are stated more clearly which parties will be involved in a traditional village setting process. Arizona (2014) argues that the Act No. 6 of 2014 could be a legal channel when the Constitutional Court 35 is sterilized as such by the Ministry of Forestry. However, there are no operational rules that ensure that the process of mapping of indigenous territories discourse of agencies involving forestry, land, and other agencies related to the administration of the rights of indigenous peoples. Operationalization of the indigenous village of scenarios at the regional level also has a variety of challenges. In his study, Arizona (2014) stated that the application for scenarios of indigenous villages in Malinau was not easy because "unclear social unit of indigenous peoples in this region when referring to the Malinau District Regulation No. 10 of 2012 on the Recognition and Protection of the Rights of Indigenous peoples ".

Other legal opportunities are the draft law on the Recognition and Protection of Indigenous Peoples' Rights (PPHMA). Arizona (2014) has a critical view of the current version of the draft law PPHMA. Arizona (2014) argued that the draft PPHMA scenario is almost similar to the stages in the recognition of indigenous peoples in Malinau District Bylaw No. 10 of 2012, the stage begins with the identification of indigenous peoples. The difference is, if the identification of indigenous peoples in Malinau District Bylaw No. 10 of 2012 may be assisted by non-governmental organizations (NGOs), such activities can be carried out in the draft PPHMA by local governments, as well as by the public.

Activists studying agrarian affairs and social movements continue to consider some of the critical questions about the social and political implications of the post-35 Decision of the

Constitutional Court at the national, regional, and community levels. What steps will be taken by the central government and the House of Representatives to carry out Constitutional Court Decision 35? How to administer the agrarian rights provided to the indigenous people, including the rights of indigenous territories (wilayah adat)? What is the influence of the Constitutional Court Decision 35 on the dynamics of the struggle for control of natural resources at the local level? What are the implications of the Constitutional Court Decision 35 on the potential appropriation of community land (tanah rakyat) for capital that is massive, legal, and voluntary that can appear? How is the spirit for recognition of indigenous peoples' rights, indigenous peoples citizenship recovery, and the decline in state territorialisasi as reflected in Court Decision 35 as translated by indigenous communities that are being surrounded by the attacks of capital flows that support the extraction of natural resources, large-scale industrial plantations, and the integration of people into plantations of various global commodities? How is the position of indigenous women and other marginalized groups in the entire chain of discourse on the struggle of indigenous people to reclaim their ancestral territories of post-Decision of the Constitutional Count (MK) 35? How will indigenous people organize the decision-making process, including the system's power and governance of indigenous territories, post-decision MK 35? What is the effect of the MK 35 ruling on indigenous women and other marginalized groups within the indigenous community?

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