Indigenous Customary Law Research Articles

The plural legacies of legal pluralism: local practices and contestations of customary law in late colonial Indonesia

This article explores colonial interpretations of indigenous customary law traditions in nineteenth and early twentieth century Central Java and West Sumatra during Dutch colonial rule. It argues that colonial knowledge production on and attempts at manipulating customary law interacted with indigenous responses to these attempts, generating a plurality of contentious and contested interpretations of customary legal order. Beneath the surface of the tightly knit colonial schemes of supposedly codified ‘customary law’, these interactions generated a reality of law-making that significantly deviated from initial intentions and concepts of judicial involvement as outlined on paper, thereby engendering novel forms of legal pluralism.

Preservation of Indigenous Women's Traditions and Behavior Within The Framework of Cultural Relativism in Indigenous Communities (A Study of Empirical Approaches in Legal Anthropology)

Customs and values within Indigenous communities form the basis of customary behavior in understanding human conduct, particularly in the context of Balinese indigenous women's behavior as guardians of tradition in an empirical approach to legal anthropology. This means that the legal norms used to observe the behaviors of Balinese indigenous women as custodians of indigenous traditions within the frame of cultural relativism represent legal realities apparent in legal situations or any legal events that genuinely occur within the indigenous community, as manifestations of the indigenous women's behaviors in preserving sacred traditions. This is based on an empirical approach to Legal Anthropology. Whether acknowledged or not by the indigenous community, the empirical approach to cultural relativism fundamentally holds a social and cultural value system that can serve as the social capital of the nation. The community's attitudes and behaviors rooted in tradition are guided by values believed to be true, exemplifying the traditional values and cultures passed down through generations and perceived as instruments for social control and religious values that guide human life, manifesting the preservation of local cultural relativism among the local indigenous community. Indigenous communities in these regions become the focal research site with the hope of safeguarding traditional values as a reinforcement of customary practices, the culture, and the traditions of the local indigenous community, which embody the manifestation of protected local wisdom governed by regional customary laws. The methodological approach utilized involves the Empirical Approach of Legal Anthropology linked with the theory of cultural relativism, leading to the conclusion that the approach involves field observations, interviews with research informants, and analyzing primary, secondary, and tertiary data sources through the lens of cultural relativism concerning the behaviors of indigenous women based on an empirical approach within the context of indigenous customary law.

Protection of Indigenous Cultural Expression under Ethiopia Legal Regime: Analysis of the Current Existing Law

Traditional cultural expression (TCE) is an artistic heritage that is developed and maintained by the community or by individuals reflecting the traditional artistic expectation of the community. Traditional Cultural expression is one of the indigenous/traditional knowledge systems, the protection of which as creativity has been debated for the last four decades and still remains an unsettled and challenging issue to date. With the advent of new technologies, this matter has come to the surface raising not only as a legal matter but also, as a political concern in the context of international organizations. This study tried to analyze the necessity of granting protection for indigenous knowledge/indigenous TCE. The researcher tried to analyze data from various literature, WIPO, ARIPO, and OAPI. Moreover, the researcher tried to analyze international and domestic legal regimes whether they protect TCE or not. Protection of TCE has not reached an agreement at the international level and it is also highly neglected in Ethiopia. There is no clear law that protects TCE in Ethiopia. Even at the policy level, there is no clear policy document that aspires for the protection of the indigenous knowledge system. For sustainable economic development, Ethiopia shall enact indigenous customary law or sui generis legal regime for the protection of indigenous artistic and cultural knowledge

Purse Seiner non grata: Privy Council Wades into Pacific fisheries

William Framhein & another v Attorney General [of the Cook Islands] was heard by the Judicial Committee of the Privy Council on 17 November 2021, with the judgment released on 28 February 2022. The case concerned a judicial review of three decisions made by the Cook Islands Government in relation to the establishment of its purse seine fishery in 2013, which is subject to international management arrangements made by the Western and Central Pacific Fisheries Commission. The three decisions at issue were the making of the Skipjack Tuna Purse Seine Fishery Plan 2013, the promulgation of the Marine Resources (Purse Seine Fishery) Regulations 2013, and the adoption and signature of the Sustainable Fisheries Partnership Agreement and Implementation Protocol with the European Union. The case was brought by a private citizen and traditional leader, Mr William Framheim, together with a local environmental NGO, Te Ipukarea Society. The Applicants brought the case to the High Court of the Cook Islands in 2017 and, following the Court’s dismissal of their claim, appealed to the Court of Appeal in 2018. Both parties appealed elements of the Court of Appeal’s decision to the Privy Council, which is the Cook Islands’ highest appeal court. Ultimately, the government prevailed on its cross-appeal to the Privy Council, and the Applicants’ appeal was dismissed. The case centers on the interaction between customary international law, the international fisheries legal regime, and domestic law (including indigenous customary law). The findings are significant not just for the Cook Islands, but for all Commonwealth countries engaged in fishing that rely on the Privy Council as a final court of appeal.

Anthropology in Australian Indigenous Legal Cases: What I've Learned from the Law and What Lawyers Have Learned from Me

ABSTRACT Reflecting on several decades of my applied research, expert witness roles and a forensic methodology, this article addresses the application of anthropological studies in Australian legal cases concerned with various aspects of Indigenous customary law. In the context of traditional land claims, cultural heritage assessments and native title, both the achievements and challenges for anthropological inquiries are canvassed. Against arguments from some academics that applied work is intellectually inferior and politically compromised, the article reports my experiences in an arena of complex and enriching social science inquiry. The article engages with Indigenous land aspirations in a settler society while considering the implications of cultural change and adaptation, strategies of recuperation of customary knowledge, and the robustness required for successful anthropological studies of this kind.

Co-existence and harmonisation of different legal traditions in South Africa

This essay introduces a contemporary description of the mixed jurisdiction of South Africa. It depicts how in South Africa co-existence, harmonization and resistance are found in different fields of law and identifies both pitfalls and benefits of mixity. Several components are introduced: civil law, English common law, local customary law, the Bill of Rights and international legal instruments. The successful harmonisation of civil and common law is ascribed to introduction of the English administration of justice. The British institutions, structure and process placed the focus on legal procedure and succeeded to avoid conflict between different legal cultures as economic transactions ignored different value systems and doctrine. The same model was, however, not applied in respect of indigenous customary law, where from the onset choices between values and doctrine were cast in stone with the consequent conflicts. The new constitution of 1996 is transformative and the courts are instructed to develop common law and indigenous law to promote the rights, values, spirit and purport of the Bill of Rights. Thus, in all fields of private law court decisions attempt to realise such transformation by harmonising constitutional values with legal tradition while strong impetus has been provided by legislation. As it appears that the need for harmonisation between civil and common law is experienced mainly in the commercial field, the question arises whether civil law jurisdictions can transform themselves into a mixed jurisdiction by way of legal transplants to facilitate the global market. Mixed legal systems developed mostly as the result of colonial history. Civil law and common law were able to mix because the common law court system and procedure made it possible for English trained judges to successfully merge certain areas of private law, primarily in the commercial field. This means that the court system and the law of procedure, but especially training, qualification and selection of judges are of paramount importance.

Comparing maintenance and property rights in marriage under customary law and statutory law in Africa

ABSTRACT Two dominant legal systems operate in a typical post-colonial African state: the indigenous customary law of the African people and the Received Colonial Laws. Despite the elevation of statutory laws above customary law under the modern state structure in Africa, customary law is still pervasive and regulates most aspects of the personal lives of Africans. Most commentators argue that the practice of customary law discriminates against women. This paper discusses the practice of customary law, its impact on statutory marriages, and how human rights have engendered a new trajectory in the development of customary law in Africa. The paper identifies the positive influence of the Received Colonial Laws and human rights law on maintenance and property rights and suggests the adaptation of the positive aspects of statutory law, the amendment of marriage laws, and the enactment of gender-sensitive legislation on marriage rights for women.

Indigenous Customary Law and Norwegian Domestic Law: Scenes of a (Complementary or Mutually Exclusive) Marriage?

Articles 27 and 34 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) recognise Indigenous Peoples’ laws. Art. 34 gives Indigenous Peoples the right to maintain their juridical systems or customs in accordance with international human rights standards. Although the UNDRIP is soft law, its core is arguably customary law and, therefore, a binding source of law. For States with Indigenous People, such as Norway, the UNDRIP is of paramount importance, from a legal, political, and not least moral perspective. This paper discusses norm hierarchies and tensions that are created in the meeting between the Indigenous customary law of the Sámi and statutory domestic Norwegian law. The introduction of customary, commonly unwritten, Indigenous rules into the judicial portfolio of a State creates an obvious challenge: what is their legal status? Can Indigenous law set aside domestic statutory norms? Some might argue that due to historical wrong, Indigenous law should always take precedence when domestic law conflicts with it. While Norwegian domestic law acknowledges the precedence of certain core human rights treaties over domestic laws, the same is not valid for Indigenous rights. How then should Indigenous custom be dealt with before a court of law, and how do the different legal systems relate to each other? This paper is foremost based on theoretical, to a lesser degree also on empirical material. It discusses on a general level the relationship between different legal systems within the same State and, on a specific level, the dealing of the Norwegian courts with Sámi Indigenous laws and customs.

Indigenous Customary Law in Context

Indigenous Customary Law in Context

Indigenous Resistance to Criminal Governance: Why Regional Ethnic Autonomy Institutions Protect Communities from Narco Rule in Mexico

This article explains why some indigenous communities in Mexico have been able to resist drug cartels’ attempts to take over their local governments, populations, and territories while others have not. While indigenous customary laws and traditions provide communal accountability mechanisms that make it harder for narcos to take control, they are insufficient. Using a paired comparison of two indigenous regions in the highlands of Guerrero and Chihuahua—both ideal zones for drug cultivation and traffic—we show that the communities most able to resist narco conquest are those that have a history of social mobilization, expanding village-level indigenous customary traditions into regional ethnic autonomy regimes. By scaling up local accountability practices regionally and developing translocal networks of cooperation, indigenous movements have been able to construct mechanisms of internal control and external protection that enable communities to deter the narcos from corrupting local authorities, recruiting young men, and establishing criminal governance regimes through force.

Applying biocultural research protocols in ecology: Insider and outsider experiences from Australia

SummaryCollaborations between Indigenous and non‐Indigenous scientific researchers are increasingly mandated by global to local conservation policy and research ethics guidelines. Breakdowns occur due to misunderstandings around expected protocols of engagement and cooperation, which are compounded by lack of broader awareness of differences in cultural values, priorities and knowledge systems. Using first‐hand experiences, we outline eight key protocols and guidelines that researchers should consider when undertaking research with Indigenous peoples, or on Indigenous Country, through exploration of biocultural protocols and guidelines within Australian and Indigenous customary laws. We use the onion as a metaphor to highlight the layers of protocols and guidelines that researchers can peel back to guide their research from international to local scales, with ethics around the research question at the core. This paper draws on the perspectives and experiences of an Indigenous researcher (as ‘insider’/‘outsider’) and non‐Indigenous researcher (‘outsider’), working on a cross‐cultural and multidisciplinary investigation of past Aboriginal dispersal of rainforest trees on the Australian east coast. This paper is part of the special issue ‘Indigenous and cross-cultural ecology - perspectives from Australia’ published in Ecological Management & Restoration.

Indigenous Customary Law and International Intellectual Property: Ascertaining an Effective Indigenous Definition for Misappropriation of Traditional Knowledge

The effective protection of indigenous traditional knowledge from misappropriation is a fundamental challenge faced by the intellectual property system. A substantial aspect of this challenge is how the intellectual property regime can practically utilise or incorporate indigenous customary law as a means of protection against misappropriation, when there is an inherent tension between the former and the latter. Any international legal instrument intended to protect against misappropriation of indigenous traditional knowledge will have to contend with this tension: a definition of misappropriation ought to encourage use of local indigenous customary law, but it also must be practically applicable within the confines of the intellectual property system. Consequently, this article considers the challenge in two parts. The first part requires ascertainment of a potential international legal definition of misappropriation that will uphold and maintain indigenous customary law, in the context of the World Intellectual Property Organization (WIPO) Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) draft articles. To ensure the definition effectively affirms indigenous customary law, it will be based on three key "approaches" to indigenous custom. The second part entails application of the definition to the domestic context, namely through the case studies of New Zealand and Australia, and a subsequent critique of the difficulties of application, to illustrate the challenge of incorporating indigenous customary law within the intellectual property system. This article concludes that the risks inherent in an aspirational definition of misappropriation which may have some challenges in application are outweighed by the potential of normalising and encouraging indigenous customary law as the foundational basis for truly effective protection of traditional knowledge against misappropriation.

Penetapan Wilayah Adat dan Masyarakat Hukum Adat Desa Penyengat Kecamatan Sungai Apit Kabupaten Siak

The problem that occurs is how the indigenous people of swamps interpret the lack of management territory, the loss of livelihood resources and organize themselves to seize opportunities for management rights. The problem of customary land and indigenous peoples above, the researchers felt the need to study more deeply on the Determination of Indigenous Areas and Customary Law Communities in Penyengat Village, Sungai Apit Subdistrict, Siak Regency, Based on the Minister of Home Affairs Regulation No. 52 of 2014 concerning Guidelines for the Recognition and Protection of Indigenous Peoples. This type of research is sociological, so the data source used is primary data from interviews, secondary data from libraries and tertiary data from dictionaries, media, and encyclopedias. Data collection techniques are done by observation, interviews, and literature review.

From Indigenous Customary Law to Diasporic Cultural Heritage: Reappropriations of Adat Throughout the History of Moluccan Postcolonial Migration

Adat is originally an Arabic term meaning “custom” or “habit”, and was introduced by Islamic merchants in Maluku and throughout the Indonesian archipelago from the 1200s onward. The term was used as a way to refer to indigenous customs that could not be incorporated into Islamic law. Therefore, rather than referring to a particular system of customs or laws, adat denoted Islamic law’s indeterminate opposite: i.e. the wide variety of indigenous practices which, other than this generalizing label of “custom”, remained undefined. Throughout the chapter, I will trace the development of this term from its original usage to its current-day reinterpretation as a form of diasporic cultural heritage by the Moluccan postcolonial migrant community in the Netherlands. As will become clear, the contemporary Moluccan application can be understood as a strategic reappropriation of the term for the construction of their collective identity, which leaves intact the term’s original capacity of having no fixed definition. By placing the Moluccan application of adat within the historical context of their separatist ideology vis-à-vis Indonesia, and their migration to the Netherlands in the early 1950s, I will argue that their reappropriation of adat as a deliberately indefinable form of Moluccan cultural heritage can be understood as a way for them to protect their collective identity as a separatist people from becoming a matter of wider contestation.

Acerca del derecho consuetudinario indígena y de las reivindicaciones etnopolíticas. Mapuches y Qom

A la luz del golpe de estado en Bolivia contra el presidente Evo Morales y sus posibles consecuencias en la institucionalidad jurídica de la Constitución Pluricultural Boliviana, el autor analiza el Derecho Consuetudinario Indígena vigente en los pueblos originarios de América Latina, y en especial su relación con las reivindicaciones etno políticas de Mapuches y Qom.

Los ritos, los curanderos y la ley

The ontological difference on which positive law and indigenous customary law in Latin America are based is one of the most important problems in the field of legal conflict between both systems. The ontological difference of the indigenous world is visible, among others, in the ways of passing and executing sentences. Punishment is often ritualistic and reintegrates the punished person into the community. In many cultures where witchcraft is a common phenomenon, sentences are given by shamans and healers. Illustrating the above statements with examples from various Latin American indigenous cultures, the article shows that law based on the vision of the Western world often cannot be an adequate response to some events taking place in indigenous worlds. This is not least because in the world of positivist rationality these events or phenomena simply do not exist.

Did I Break It? Recording Indigenous (Customary) Law

In this paper, I explore several issues emerging in the discourse about the recording of indigenous law by drawing on several examples of my research and work with indigenous law in Canada. This is an important inquiry because there are limiting and disturbing fundamentalist premises underlying the debate regarding the recording of indigenous law. To take up these issues, I analyse and articulate the law and legal processes from two indigenous oral histories. The question under consideration is whether by this recording and analysis, I have somehow damaged Gitxsan law. In other words, did I break it?

Position of Women in Indigenous Customary Law in Nanggulan Village, Klaten District, Central Java

Indigenous peoples in Indonesia are very plural, so they have a variety of kinship or kinship forms, which cause diversity in patterns in the inheritance system. In general, the people in Nanggulan Village, Cawas District, Klaten Regency, recognize parental forms of kinship. Namely the balance of position between husband and wife or interesting from the line of father and mother, then there is a similarity in status inherited between boys and girls. However, in Nanggulan Village there were families who when dividing inheritance, only boys received inheritance from their parents, while their daughters did not get a share. This happens because of a factor, that girls who have married and have their own homes with their husbands and children, they are considered capable and do not need their parents' property in the form of houses. Whereas boys who have married, are more prepared to obtain inheritance in the form of a place to live, because they are considered to have more responsibility than their sisters. Then there is the prevalence of a boy who has a status as a husband and must be responsible for providing a place to live or a house for his wife and child.

Recognising Indigenous customary law of totemic plant species: Challenges and pathways

The Nagoya Protocol encourages academics, government bureaucrats, and traditional owners to look at how customary law might be utilised within state law frameworks to improve and resolve “access and benefit‐sharing” processes. This paper examines and reviews legal, anthropological, and historical texts relating to biodiversity and associated knowledge to explore Aboriginal and Torres Strait Island peoples’ customary laws and governance. Understanding the broader place of Indigenous customs, laws, and belief, as sitting on the oral–written continuum and expressed through the Dreaming, provides the foundation for understanding Indigenous customary laws as they relate to plants and animals. The paper highlights, through examples, that plants and animals may be regarded as totemic species, that are rights controlled and/or relational to specific individuals or families. Looking towards native title, community protocols and a “competent cultural authority,” the paper seeks out tools which might expand the regulatory toolbox and help connect Indigenous law and state law relating to Indigenous knowledge and totemic species.

Violence Against the Indigenous Women: Methodological and Ethical Recommendations for Research.

The importance of more countries contributing to precise and comparable statistics on violence against women (VAW) is undeniable. Methodological adaptation is a very important aspect to increase the probability of women disclosing violence and safeguard their integrity. Research on VAW adapted to ethnic populations is scarce. Colombia has great ethnic diversity and is the country in the region with the second highest percentage of women reporting having suffered physical or sexual violence. However, statistics on VAW are limited, and no guidance or recommendations exist with respect to adapting the VAW research protocol to indigenous communities with unique forms of social organization. The indigenous Nasa community functions as a small society with its communal organization, own social norms, and indigenous customary law. In addition, the indigenous Nasa population has a worldview that is reflected in the way women suffer and face violence and discrimination. This article is based on a pilot survey that adapts and implements the WHO multicountry study's survey methodology on women's health and domestic VAW in three resguardos (communal lands) of the Nasa indigenous community in Colombia. The goal is to contribute to and improve the methodological adaptation of VAW research to cultural diversity, and simultaneously attempting to obtain high-quality data that can be comparable at the national and international levels. Recommendations for adaptation, ethical considerations, challenges, and implications for future studies with indigenous populations are discussed.