Legal Recognition of Customary Law Communities and Customary Forest Governance in East Nusa Tenggara, Indonesia: Lessons from Gendang Racang–Colol

 

Kanisius Teobaldus Deki

Lembaga Nusa Bunga Mandiri (LNBM)
STIE Karya Ruteng

Abstract

Customary Law Communities (Masyarakat Hukum Adat—MHA) are social communities that have existed across generations, possess a shared identity and customary territory, maintain customary institutions, and regulate their collective life through customary norms and laws. Within the Indonesian legal system, the existence of Customary Law Communities is constitutionally recognized under Article 18B paragraph (2) and Article 28I paragraph (3) of the 1945 Constitution of the Republic of Indonesia. The legal position of customary communities, particularly in relation to forest tenure, was further strengthened by Constitutional Court Decision No. 35/PUU-X/2012, which affirmed that customary forests are no longer categorized as State Forests.

Nevertheless, constitutional recognition has not always been followed by effective and timely administrative recognition at the regional level. This article examines the concept of Customary Law Communities, the position of customary law within the Indonesian legal system, the relationship between customary communities and land, territory, and natural resources, and the policy framework governing the recognition of Customary Law Communities and customary forests in East Nusa Tenggara Province. Particular attention is given to the experience of the Gendang Racang customary community in Colol Village, East Manggarai Regency, where an identification process has been undertaken but must still proceed through verification, validation, formal recognition, and the subsequent proposal for customary forest designation.

The analysis indicates that the challenges to recognizing Customary Law Communities in East Nusa Tenggara are not limited to regulatory deficiencies. They also include weak inter-institutional coordination, limitations in implementing institutions, uncertainty regarding customary territorial boundaries, tenure conflicts, overlapping permits and land-use designations, and insufficient integration of customary community recognition into regional development planning. Accordingly, recognition policies should integrate legal recognition, territorial protection, environmental sustainability, cultural preservation, conflict resolution, and sustainable community-based economic empowerment.

Keywords: Customary Law Communities, customary forest, customary law, East Nusa Tenggara, Gendang Racang, Colol, recognition of customary communities.

1. Introduction

Customary Law Communities constitute an integral part of the historical development of Indonesian society. Long before the establishment of the modern Indonesian state, communities across the archipelago had developed their own social arrangements, territorial systems, leadership structures, kinship systems, normative orders, mechanisms for dispute resolution, and rules governing access to and utilization of natural resources.

A Customary Law Community is not merely a social group that continues to maintain traditional clothing, ceremonies, or cultural practices. Rather, it is a social and legal entity whose members share historical relations, collective identity, customary territory, institutions, and a body of customary norms regulating communal life. Customary law may exist in written or unwritten forms and may be transmitted through oral traditions, narratives, advice from elders, customary decisions, rituals, social practices, and repeated patterns of conduct passed from one generation to another.

The legal position of Customary Law Communities becomes particularly important in discussions concerning land and natural resources. For many customary communities, land is not simply an economic asset. It may constitute an essential element of collective identity, historical origin, kinship relations, settlement patterns, livelihood systems, ancestral burial grounds, ritual sites, and intergenerational continuity.

Problems arise when territories historically occupied, governed, or utilized by customary communities intersect with administrative classifications, permits, concessions, development interests, or other forms of land control recognized under State law. At this point, the issue of Customary Law Communities lies at the intersection of customary law, constitutional law, agrarian law, forestry law, environmental law, development policy, human rights, and public administration.

This issue is particularly relevant in East Nusa Tenggara Province, which is characterized by a significant diversity of customary communities with distinct kinship structures, customary institutions, communal land tenure systems, natural resource governance arrangements, and cultural traditions. However, the historical and sociological existence of a customary community does not automatically result in formal administrative recognition by the State.

The principal policy challenge is therefore to translate constitutional recognition into effective institutional and administrative measures at the regional level.

2. Concept and Characteristics of Customary Law Communities

In general terms, a Customary Law Community may be understood as a community that has existed continuously across generations within a particular territory, possesses a shared identity, and regulates its collective life through a set of customary values, norms, and rules recognized and observed by its members.

The concept of Masyarakat Hukum Adat consists of three interrelated elements. First, community, referring to a group of individuals bound together through social relations and communal life. Second, law, referring to rules that regulate the conduct of members and produce consequences when violated. Third, custom, referring to values, traditions, norms, and practices developed and transmitted from one generation to another.

Accordingly, not every group maintaining traditional cultural practices can automatically be categorized as a Customary Law Community. Several characteristics are generally relevant in identifying the existence of such a community.

First, the community has existed across generations and maintains historical relationships with a particular social group and territory.

Second, the community possesses a customary territory. Such territory may include land, forests, agricultural areas, rivers, water sources, coastal or marine areas, settlements, and other spaces with economic, social, cultural, or spiritual significance.

Third, the community has customary norms or laws governing various dimensions of communal life. These may regulate marriage, kinship, inheritance, land tenure, natural resource management, conflict resolution, and customary ceremonies.

Fourth, the community possesses customary institutions or recognized authorities, which may include customary chiefs, elders, customary councils, or other forms of governance consistent with the historical characteristics of the community.

Fifth, the community has a collective identity based on origin, territory, shared history, language, kinship relations, values, beliefs, or traditions.

Sixth, the community maintains its own mechanisms of dispute resolution. In many customary settings, dispute settlement emphasizes deliberation, reconciliation, restoration of social relationships, customary sanctions, and collective settlement rather than merely determining a winning and losing party.

These characteristics demonstrate that customary communities constitute not merely cultural communities but also living normative and institutional systems.

3. Customary Law Communities as Legal Subjects

Recognition of Customary Law Communities as legal subjects is of fundamental importance because a legal subject is an entity capable of possessing rights and obligations.

For customary communities, recognition as a legal subject provides the legal basis for safeguarding collective interests relating to customary territories, communal land, natural resources, customary institutions, cultural traditions, traditional knowledge, customary dispute-resolution systems, and collective cultural identity.

Customary Law Communities should therefore not be understood merely as collections of individuals who happen to share similar traditions. They may possess collective rights and interests that are attached to the community as a social and legal entity.

It is also important to distinguish among the concepts of customary communities, Customary Law Communities, and traditional communities. The term customary community is often used in a broader sociocultural sense to describe communities possessing distinctive identities and traditions. The term Customary Law Community places greater emphasis on the existence of an organized social unit governed by customary norms or laws and possessing particular traditional rights. Meanwhile, the term traditional community may have a broader scope and does not necessarily indicate the existence of an organized customary legal system.

This distinction is particularly significant in the legal context because formal recognition as a Customary Law Community may generate specific legal consequences concerning territorial rights, institutional authority, and access to natural resources.

4. The Relationship Between Customary Law Communities, Land, and Natural Resources

One of the most significant dimensions of customary communities is their relationship with territory.

For many customary communities, land constitutes an inseparable part of collective history. Such relationships cannot necessarily be replaced by economic compensation because customary territory may simultaneously function as a living space, a productive landscape, a cultural domain, and a spiritual environment.

Customary communities may also maintain traditional systems for regulating the utilization of natural resources. Such systems may determine who is entitled to use a particular resource, when certain resources may be harvested, which areas must be protected, which species cannot be exploited, and which obligations must be fulfilled to maintain environmental balance.

In this sense, customary law may function as a community-based environmental governance mechanism.

Nevertheless, customary communities should not be understood as static social entities. Education, migration, technology, urbanization, economic transformation, and interaction with State institutions may substantially influence their social structures and practices.

A customary community may continue to maintain its language, rituals, customary institutions, kinship arrangements, and land tenure practices while simultaneously utilizing formal education, modern technology, State law, market institutions, and formal government structures.

Accordingly, recognition of customary communities should not be interpreted as an attempt to preserve them in an unchanging historical condition. Rather, recognition should provide institutional space for customary communities to develop while maintaining their collective identity, rights, and social institutions.

5. Constitutional and Legal Foundations for the Recognition of Customary Law Communities

The recognition of Customary Law Communities in Indonesia has a strong constitutional foundation.

Article 18B paragraph (2) of the 1945 Constitution of the Republic of Indonesia stipulates, in essence, that the State recognizes and respects Customary Law Communities and their traditional rights insofar as they remain in existence, are consistent with societal development and the principles of the Unitary State of the Republic of Indonesia, and are regulated by law.

Article 28I paragraph (3) further provides constitutional protection for cultural identities and the rights of traditional communities in accordance with the development of civilization.

These provisions demonstrate that the recognition of customary communities is not merely a cultural matter but also a constitutional and legal issue.

A major development in the legal recognition of customary forest rights occurred through Constitutional Court Decision No. 35/PUU-X/2012. The decision corrected the previous legal classification of customary forests under Law No. 41 of 1999 on Forestry by affirming that customary forests are not part of State Forests. Instead, customary forests are forests located within the territories of Customary Law Communities.

The broader legal framework governing Customary Law Communities and customary forests also includes Law No. 41 of 1999 on Forestry, Law No. 6 of 2014 on Villages, Government Regulation No. 23 of 2021 on Forestry Administration, Minister of Home Affairs Regulation No. 52 of 2014 on Guidelines for the Recognition and Protection of Customary Law Communities, and Minister of Environment and Forestry Regulation No. 9 of 2021 on Social Forestry Management.

Minister of Home Affairs Regulation No. 52 of 2014 is particularly significant at the regional level because it provides a procedural framework for identification, verification, validation, and the establishment of committees responsible for the recognition of Customary Law Communities.

An essential principle emerging from this legal framework is that recognition is not equivalent to the creation of new rights. From the perspective of customary communities, traditional rights have generally existed and have been exercised historically. The central legal challenge lies in translating their social and historical existence into formal recognition within the State administrative system.

6. Policy Conditions for the Recognition of Customary Law Communities in East Nusa Tenggara

East Nusa Tenggara has a strong need to accelerate the recognition of Customary Law Communities because numerous communities continue to maintain customary relationships with territory, communal land, traditional institutions, and natural resources.

However, regional policy and regulatory frameworks remain uneven across the province. One important example is Ende Regency, which has adopted Regional Regulation No. 2 of 2017 on the Recognition and Protection of Customary Law Communities. This regulation provides a legal basis for addressing the legal status of customary communities, their rights and obligations, regional government responsibilities, recognition and protection procedures, and dispute resolution.

At the provincial level, stronger regulatory and institutional frameworks remain necessary to facilitate and coordinate the recognition process, particularly where customary territories cross administrative boundaries or require coordination among different levels of government.

The provincial coordination meeting on the acceleration of customary forest recognition held in Kupang on 25 June 2026 demonstrated growing governmental attention to this issue. During the meeting, the Governor of East Nusa Tenggara emphasized that customary forest development should also be linked to community welfare through non-timber forest products, productive community enterprises, the One Village One Product approach, ecotourism, environmental services, and locally based commodities managed according to sustainability principles.

This policy orientation expands the conventional understanding of customary forests. Recognition is no longer viewed exclusively as a mechanism for protecting rights and conserving forests; it can also be connected to community-based economic development.

Nevertheless, economic development must remain subordinate to the protection of customary rights and principles of environmental sustainability. Customary forests should not be reduced merely to economic commodities. They should instead be understood as integrated social-ecological territories possessing cultural, ecological, social, and economic functions.

7. Mechanisms for the Recognition of Customary Law Communities and Customary Forests

The formal recognition of Customary Law Communities generally involves several stages.

The first stage is identification, which involves documenting the history of the community, customary territory, customary norms, customary institutions, customary property or cultural assets, and other elements demonstrating the continued existence of the community.

The second stage is verification and validation, undertaken by a committee established by the relevant regional government. This stage is intended to examine the historical evidence, institutions, norms, territorial arrangements, and continuity of the customary community.

The third stage is the formal determination or recognition of the Customary Law Community by the regional government in accordance with the applicable regulatory framework.

Once the community has obtained formal recognition, the process may continue with a proposal for the recognition of its customary forest, provided that the relevant area satisfies the legal requirements for customary forest designation.

Relevant characteristics may include the location of the forest within a recognized customary territory, identifiable territorial boundaries, the existence of forested areas, customary management practices, and a continuing relationship between the community and the forest in question.

This process illustrates that the recognition of Customary Law Communities and the recognition of customary forests are closely related but constitute distinct administrative and legal stages that must be managed systematically.

8. Challenges to the Recognition of Customary Law Communities and Customary Forests in East Nusa Tenggara

Several major challenges require policy attention.

8.1 Uneven Regional Regulatory Frameworks

Not all regional governments in East Nusa Tenggara have equivalent regulations, institutions, and operational procedures for identifying and formally recognizing Customary Law Communities.

As a result, the pace of recognition may vary considerably between regencies.

8.2 Tenure Conflicts

One of the most complex challenges arises when customary territorial claims overlap with land or resource claims recognized by State law.

The experience of Pubabu Besipae in South Central Timor illustrates the broader problem of tenure conflict and the importance of legal certainty regarding customary community status and customary territories.

Such cases demonstrate that disputes over customary territories frequently cannot be separated from competing claims involving the State, local communities, and other actors.

8.3 Overlapping Land-Use Designations and Permits

Some areas claimed as customary territories may already be classified as protected forests, production forests, concessions, plantations, infrastructure areas, or other forms of legally designated land use.

Consequently, recognition of Customary Law Communities cannot be separated from participatory mapping, spatial planning, forestry policy, and agrarian administration.

8.4 Inter-Institutional Coordination

The recognition process may involve village governments, sub-district authorities, regency governments, provincial governments, national ministries, customary institutions, local communities, and civil society organizations.

Without clear allocation of authority and effective institutional coordination, the identification process may be completed while subsequent verification, validation, or formal determination remains unresolved.

8.5 Social Transformation Within Customary Communities

Customary communities themselves continue to change.

Education, migration, employment patterns, technological change, and economic transformation may influence traditional institutions and social structures.

Therefore, the verification process should not assume that a customary community must reproduce all aspects of its historical way of life in order to qualify for legal recognition. The more relevant question is whether the community continues to maintain collective identity, institutional continuity, customary norms, territorial relations, and forms of customary governance that remain meaningful in contemporary social life.

8.6 Internal Community Conflicts

Customary communities should not be treated as internally homogeneous entities.

Disputes may arise concerning customary leadership, territorial boundaries, resource distribution, collective history, representation, and relationships with external actors.

Recognition processes therefore need to provide adequate space for internal consultation, participatory verification, and transparent documentation.

9. Gendang Racang–Colol as a Field-Based Experience

The experience of the Gendang Racang customary community in Colol Village provides an important case for examining the acceleration of Customary Law Community recognition in East Manggarai Regency.

An identification process for the Gendang Racang community was conducted in 2022. The existence of such documentation constitutes an important initial step, but the process must continue through verification, validation, and formal recognition in accordance with applicable regional administrative procedures.

The customary territory of Gendang Racang includes several important areas identified during the process, including approximately 35 hectares of Lingko Lodok, 20 hectares of Uma Duat, 15 hectares of Puar, and the Wae Racang area.

These areas are important not merely as geographical spaces. They are also closely associated with social life, cultural identity, livelihoods, customary institutions, and community history.

Gendang Racang also possesses considerable potential for integrating legal recognition with community-based economic development.

Such opportunities may include cultural ecotourism associated with the rumah gendang or customary communal house and the surrounding customary landscape, the development of Colol coffee, candlenut, forest honey from the Puar area, traditional weaving, and other locally based community enterprises.

From this perspective, the recognition of a Customary Law Community should not be regarded as complete once an administrative decree has been issued. Recognition should be followed by the development of effective territorial governance arrangements capable of ensuring that economic benefits do not undermine cultural integrity, customary authority, or ecological sustainability.

The Gendang Racang experience may therefore serve as a learning model for integrating customary community documentation, participatory mapping, government verification, customary institutions, territorial governance, and sustainable economic empowerment within a single regional development framework.

10. From Legal Recognition to Community Empowerment

An important conceptual development is the recognition that formal acknowledgment of Customary Law Communities should not constitute the final objective of public policy.

Once a community has obtained greater legal certainty concerning its status and territory, the subsequent challenge is to ensure that recognition produces tangible improvements in community well-being.

At least four dimensions should be integrated.

First, legal protection, ensuring certainty regarding the existence of customary communities and their traditional rights.

Second, ecological protection, ensuring that formal recognition does not facilitate resource exploitation that undermines the natural systems sustaining customary livelihoods.

Third, social and cultural strengthening, including the revitalization of customary institutions, traditional knowledge, language, ritual practices, and locally legitimate dispute-resolution mechanisms.

Fourth, economic empowerment, developed through economic activities consistent with the characteristics of the customary territory, including non-timber forest products, locally based agriculture and plantations, coffee, honey, candlenut, traditional handicrafts and weaving, environmental services, and community-based ecotourism.

Within such a framework, customary forests should not be treated merely as areas requiring conservation. They should be recognized as living territories performing ecological, social, cultural, and economic functions for the communities that depend upon them.

11. Policy Agenda for East Nusa Tenggara

Based on the identified challenges and field experience, policy measures may be organized into short-, medium-, and long-term priorities.

11.1 Short-Term Policy Agenda

First, the regional legal framework for the recognition, protection, and empowerment of Customary Law Communities should be strengthened.

Second, institutions responsible for identification, verification, and validation should be established, strengthened, and operationalized effectively.

Third, the provincial and regency governments should undertake an inventory of customary communities for which identification documents have already been prepared but whose recognition processes have not yet proceeded to formal determination.

Fourth, the recognition process for Gendang Racang should be advanced through verification and validation so that the 2022 identification process does not remain merely an administrative document without further legal consequences.

Fifth, a coordinated database and participatory map of customary territories should be developed to support policymaking, spatial planning, conflict prevention, and inter-agency coordination.

11.2 Medium-Term Policy Agenda

First, recognized customary territories should be progressively integrated into regional spatial planning and broader development planning frameworks.

Second, mechanisms for resolving territorial conflicts should be strengthened through dialogue involving customary communities, regional governments, and other relevant stakeholders.

Third, the capacity of regency governments, village governments, and customary institutions should be strengthened in historical documentation, participatory mapping, territorial management, conflict resolution, and community-based natural resource governance.

Fourth, models of customary community economic empowerment should be developed while maintaining environmental sustainability and customary authority over local resources.

11.3 Long-Term Policy Agenda

In the long term, East Nusa Tenggara requires an integrated model of customary territorial development that links community rights with sustainable natural resource governance.

Such a model may include community enterprises, village-owned enterprises or other locally appropriate economic institutions, community-based ecotourism, non-timber forest products, locally produced commodities, value-chain development, and improved market access.

At the same time, cultural and ecological safeguards must remain fundamental.

Economic policy should not create new forms of resource exploitation that weaken community control over customary territories. Instead, development should strengthen the capacity of customary communities to govern their own territories while improving welfare and protecting ecological sustainability.

12. Conclusion

Customary Law Communities constitute social and legal entities whose existence cannot be understood solely through the lens of tradition and culture. They encompass communities, territories, normative systems, collective identities, customary institutions, collective rights, and intergenerational relationships with land and natural resources.

The Indonesian Constitution provides a legal foundation for their recognition. Constitutional Court Decision No. 35/PUU-X/2012 constitutes an important milestone by affirming the legal position of customary forests in relation to Customary Law Communities. Nevertheless, constitutional recognition requires effective administrative, regulatory, and institutional implementation at the regional level if it is to provide meaningful legal certainty.

East Nusa Tenggara has a significant opportunity to accelerate this process. The diversity of customary communities throughout the province represents both a major social and cultural asset and a substantial policy challenge.

The experience of Gendang Racang in Colol Village demonstrates that the recognition process can be advanced through concrete measures: historical documentation, identification of customary institutions and customary law, participatory territorial mapping, verification and validation, formal recognition of the community, and, where relevant, the subsequent recognition of customary forests.

The success of Customary Law Community recognition should not be measured solely by the number of government decrees issued or the number of hectares formally designated. It should also be assessed through increased legal certainty, reduced tenure conflicts, strengthened customary institutions, preserved cultural identity, sustainable natural resource management, and improved community welfare.

Accordingly, the recognition of Customary Law Communities should be positioned as an integral component of equitable regional development. Legal recognition, cultural protection, environmental sustainability, conflict resolution, and community economic empowerment should not be treated as separate policy agendas. Rather, they constitute interconnected dimensions of a comprehensive strategy for securing the future of Customary Law Communities in East Nusa Tenggara.

References

Constitutional Court of the Republic of Indonesia. Decision No. 35/PUU-X/2012 concerning Judicial Review of Law No. 41 of 1999 on Forestry against the 1945 Constitution of the Republic of Indonesia.

Government of the Republic of Indonesia. The 1945 Constitution of the Republic of Indonesia, particularly Article 18B paragraph (2) and Article 28I paragraph (3).

Government of the Republic of Indonesia. Law No. 41 of 1999 on Forestry.

Government of the Republic of Indonesia. Law No. 6 of 2014 on Villages.

Government of the Republic of Indonesia. Government Regulation No. 23 of 2021 on Forestry Administration.

Ministry of Home Affairs of the Republic of Indonesia. Minister of Home Affairs Regulation No. 52 of 2014 on Guidelines for the Recognition and Protection of Customary Law Communities.

Ministry of Environment and Forestry of the Republic of Indonesia. Minister of Environment and Forestry Regulation No. 9 of 2021 on Social Forestry Management.

Government of Ende Regency. Ende Regency Regional Regulation No. 2 of 2017 on the Recognition and Protection of Customary Law Communities in Ende Regency.

Government of East Nusa Tenggara Province. 2026. “Governor Melki Laka Lena: Customary Forests Should Also Become a Source of Economic Growth for Community Welfare.” 26 June 2026.

Deki, Kanisius Teobaldus. 2026. Policy Analysis on the Recognition of Customary Law Communities (MHA) and Customary Forests in East Nusa Tenggara Province: Notes from Field Experiences in Gendang Racang and Colol. Lembaga Nusa Bunga Mandiri–STIE Karya Ruteng.