Analysis of land rights ownership Deli Spoorweg Maatschappij in Medan, Sumatera Utara, Indonesia

Abstract

This study aimed to unravel the legal and political history of the birth of a modern mode of railway in Medan. The land agreement for the construction of railroad companies has led to conflicts to date regarding the status of concession lands originating from the Sultanate of Deli at that time. This study integrated normative legal research with historical research methodologies, utilizing archives of primary materials from colonial times as the primary source and secondary data from a specific era. Data was carried out at the Netherlands National Archives in The Hague and the Special Collections of the Leiden University Library in early spring 2015, and continued in early winter 2016 and 2019. There are two important findings from this research. First, land concession managed by Deli Spoorweg Maatschappij (DSM) does not belong to the foreign company but belongs to the indigenous people where the King or Sultan acts as the customary leader. Second, Law No. 86 of 1958 nationalized Dutch companies and turned these areas into State Companies like Railways and Plantations, however the Sultanate and Customary Law Community’s rights cannot be demolished. This manuscript showed comprehensive analysis of the land rights associated with the DSM in Medan. However, there are limitations to this research in that the available historical records are incomplete, and some important documents have been lost or damaged over time, which may result in data gaps. Future research should be conducted to compare the Deli Spoorweg Maatschappij with other colonial and post-colonial railroads.

Keywords:

• Deli Spoorweg Maatschappij
• land rights
• Medan
• ownership

Public Interest statement

In the late 19th century, as Medan introduced modern railroad transportation, an intriguing web of legal and political events surrounded the construction of railroad infrastructure. This study examines how properties formerly belonging to the Sultanate of Deli were utilized for railroad purposes. Interestingly, this historical arrangement continues to be a source of contention to this day. In-depth research into Dutch archives revealed that concession lands administered by the railroad company Deli Spoorweg Maatschappij (DSM) never belonged to the company. Instead, they remained the property of the native population, with the Sultan functioning as their traditional leader. Notably, even though laws enacted in 1958 were intended to nationalize Dutch enterprises, the Sultanate and local communities retained their rights over these lands. This voyage highlights the complexities of land rights, colonialism, and infrastructure development’s legacy.

1. Introduction

Approximately 140 years ago, a foreign company engaged in the field of tobacco plantations, Deli Maatschappij (Deli Mij), submitted an application to the Sultanate of Deli as a leader on the east coast of Sumatra to use part of the land originating from the tobacco plantation concession agreement between the Sultanate of Deli and Deli Mij for the construction of the railroad. The construction of railroads and buildings related to these railways is an option to expedite tobacco shipment outside the East Sumatra region, particularly overseas, while simultaneously increasing income from tobacco production (Darini, 2021).

Therefore, a new company called Deli Spoorweg Maatschappij (DSM) was formed, in which Deli Mij invested its shares in the new company. The duration of the land use agreement, which is intended to benefit DSM, spans 90 years based on the document of Concessievoorwaarden van Deli Spoorweg Maatschappij in 1883 (Pandamdari et al., 2023). Deli Spoorweg Maatschappij (DSM) is a privately owned enterprise. The Netherlands possesses rights and concessions pertaining to the establishment of railway infrastructure within East Sumatra. The Dutch colonial government accorded utmost importance to indirect ownership and operation. The rationale for this initiative is primarily aimed at facilitating the transportation of plantation goods and passengers between the hinterland regions along the eastern coast of Sumatra and the Belawan port (Rivai et al., 2022). The utilization of this priority scale is significant to the railway company’s ability to align with the rate of economic expansion observed in private plantations located in East Sumatra.

The significance of rail transportation is evident in the growing demand for transportation services that facilitate the movement of passengers and commodities in a secure, comfortable, efficient, and organized manner while remaining affordable for individuals with varying purchasing power. The utilization of this kind of transportation is not just a modern occurrence; rather, it has been extensively advanced in various nations across the globe over an extended period.

The unique geographical location of the coastline region in East Sumatra has significant importance in the establishment and growth of extensive plantations, which are closely aligned with export demands during the colonial period. This assertion is substantiated by evidence from the eastern region. The region of Sumatra, specifically Deli, exhibits promising potential for cultivating tobacco of significant commercial value (Tanjung et al., 2022).

Rail transportation holds a significant and critical position in Indonesia as it plays a crucial role in facilitating the smooth functioning of the country’s economy. The eastern coast of Sumatra possesses highly fertile soil, making it exceptionally conducive for cultivating export-oriented commodities such as tobacco, rubber, and palm oil. The management of these export commodities is predominantly overseen by large plantations, which are primarily owned by Dutch business people and other foreign investors.

The problem with the status of the lands of the former Sultanate of Deli began in 1958, and the Indonesian government issued Law No. 86 in 1958 concerning the Nationalization of Dutch Companies and then took over all the assets of Dutch companies (Ikhsan, 2019), including the DSM company, and transferred them to the Indonesian Railway Company owned by the Government of Indonesia and currently named PT Kereta Api Indonesia (Persero), since 1998¹. It is also a problem whether land ownership automatically belongs to the government, in this case owned by the state-owned enterprise PT KAI, or whether these land assets must be returned to the sultan and his descendants, so that in this study an analysis is also carried out regarding the legal land ownership status of the DSM land concession.

Furthermore, to analyze the land rights ownership of the Deli Spoorweg Maatschappij in Medan, Sumatera Utara, Indonesia, it is essential to consider the broader context of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). In 2007, the UNDRIP emphasized indigenous communities’ rights to own, use, cultivate, and control the lands they have traditionally owned or occupied. Drawing parallel to the Deli Spoorweg Maatschappij case, the international legal framework has implications for land ownership claims, suggesting that any violations of or disregard for indigenous rights in Medan could be considered violations of international norms. Therefore, the story of land rights in Sumatera Utara should be approached with a keen understanding of global obligations to uphold and protect indigenous rights.

The main issue in this research is whether the lands that were concessioned between the Sultanate of Deli and DSM, which are individuals (persoonlijke recht) and owned civil nature, can be taken by the Government of Indonesia directly and then converted into Cultivation Rights and nationalized, becoming the property of the Government of Indonesia, is the next issue to be explored in this historical research. To determine the main issue in this research, we develop research method that combined historical research methods with normative legal research. Concisely, the research stages conducted are: Initially, a historical investigation will examine archival documents to chart the evolution of land ownership from the Deli Sultanate and DSM to the Indonesian government. Subsequently, a legal examination will be conducted, specifically emphasizing the consequences of post-independence legislation on the process of land nationalization and the the development of Cultivation Rights.

2. Method

This study combined historical research methods with normative legal research. The process of historical research is carried out through the process of determining the topic, heuristics (obtaining sources and supporting evidence), verification (checking the authenticity of writings and the correctness of historical sources), interpretation (interpretation of data), and historiography (Negara, 2023). The findings from both historical and legal research are laid out separately to maintain a distinction between the two methodologies. This is followed by a synthesized presentation of results, which intricately weaves the historical context with the legal framework, providing a cohesive narrative.The legal research process was carried out by examining the existing forms of concession agreements and juxtaposing them with the Indonesian Civil Code and other related regulations, including Law No. 86 of 1958 concerning the Nationalization of Dutch-Owned Companies. The presentation model is carried out in an explanatory descriptive manner (in-depth analysis of the concession contract and the origin of the agreed land). The primary data use in this study can be seen in Table 1.

Table 1. Primary data collection

No	Title of Primary Data
1	Agrarisch Reglement voor de Residentie Sumatera’s Westkust met toelichting. Batavia: Landsdrukkerij 1916.
2	Deli Spoorweg Maatschappij (Afschrift/Copy), Dossier A. No.26. Overeenkomst ddo. 12 April 1924 met Z.H. den Sulthan van Deli betreffende teruggave van een stuk grond het emplacement Deli Toewa.
3	Legalized copy of the deed at the National Archives of the Netherlands dated 6 March 2015. Title of the deed: Schenking door Het Inlandsch Zelfbestuur van Deli aan de Gemeente Medan. Office of D.J. Focquin de Grave, Notary te Medan.
4	Inventaris van het archief van de NV Deli Maatschappij, Dochtermaatschappijen en Gefuseerde Bedrijven, (ca. 1700) 1869–1967 (1968). Nummer archiefinventaris: 2.20.46.
5	Jansen, Gerard. Grant Rechten in Deli (Uitgave van Sumatra Instituut, 1925)
6	Concession Terms (Concessievoorwaarden van Deli Spoorweg Maatschappij 1883).
7	Letter of NV Deli Universal addressed to Mr. Amin Arjoso (without date, month and year regarding the Polonia land concession case).
8	Sealed letter of the Sultan of Deli dated 30 September 1882. Source Dutch National Archives (validated on 6/3/2015).

3. Results and discussion

3.1. Legal status of land rights ownership ex Deli Spoorweg Maatschappij (DSM)

The lands of the former Deli Spoorweg Maatschappij (DSM) concession in accordance with Article 16 Concessievoorwaarden van Deli Spoorweg Maatschappij (DSM Concession Terms) dated 23 January 1883, No.17 are the lands of the Sultanate of Deli as an institution. Article 16 of the Concessievoorwaarden reads: “Omtrent het verkrijgen van den voor den spoorweg benoodigden grond, voor zover nog schikkingen vereischt worden, na den door den Sultan en de Rijksgrooten van Deli gedanen kostloozen afstand bij bezegelde verklaring van 30 September 1882, zullen de concessionarissen zich rechstreeks hebben te verstaan met de rechtebbenden ”). Translated into English: “regarding the acquisition of the lands needed for the railroad, which is currently still being requested, after the Sultan and Orang Besar Deli rented it out free of charge through a statement on sealed paper dated 30 September 1882, the concession holder directly will have understood it with the rights holders that is Sultan Deli and His man.”

In order to carry out the purpose of realizing the railroad, Deli Mij submitted a request to the Sultan of Deli as representative of the four tribes’ datuk² who formed the Deli Sultanate to obtain land related to the construction of the railroad and other related allotments. Subsequently, on 30 September 1882, the Sultan of Deli along with the his men made a statement on the seal stating their approval for the use of the Sultanate’s land for the construction of a railway line from Kuala Sungai Belawan to Medan Putri and Deli Tua and from Medan Putri to Timbang Langkat without having to pay anything to the Sultanate of Deli but in the letter (Hallewijn, 1876; Perrett, 2010)). The Sultan of Deli stated that: “De gronden die zij later niet meer nodig, moet hebben voorgemelde doeleinden comment om ons terug zonder verdere formaliteiten.” (land that is no longer needed by Deli Mij must be returned in the end to us) in this case the Sultanate of Deli without certain formalities.³

The DSM Contract or Concession Terms were based on the Mabar-Deli Toe Concession Contract made between the Sultanate of Deli and the Deli Maatschappij Plantation Company dated 11 June 1870, for a period of 99 years, and then replaced with a contract dated 1 November 1874. Named the Contract Mabar-Deli Toea because the land leased to Deli Mij is an area between the Deli River and Percut River, and from Mabar to Deli Toea.⁴ DSM as a company formed by Deli Mij no longer needs some kind of contract with the Sultanate of Deli because there is already a master contract, namely, the Mabar-Deli Toewa Contract mentioned above.

The Deli Spoorweg was established on 23 January 1883 through Besluit Gouverneur Generaal (GG) No.17. Furthermore, it is stated that the concession period according to Article 42 of the Concessievoorwaarden of 1883, which was later renewed through the Concessievoor of 1912, is 90 years. Therefore, the Government of Indonesia should be obliged to return ex-concession lands to the Sultanate of Deli because the term of the concession agreement expired in 2002.⁵

Indonesia essentially regards land to be personal property (persoonlijk recht) as opposed to material property, and thus subjects it to customary law (Firmansyah et al., 2021). Consequently, upon the expiration of the concession, the land must be restituted to its rightful owners, the Indigenous Peoples. According to the Big Indonesian Dictionary (KBBI), nationalization is defined as the process by which a state or nation acquires ownership of something, typically foreign property, in exchange for compensation. Furthermore, according to Martin Wolff, property rights are transferred to the state that issues the nationalization decree if the nationalized objects are situated on its territory. This transfer is universally recognized, even if the nationalized objects are owned by a foreign national and not a citizen of the state that issued the decree. Nationalization is a coercive method of transferring private parties’ rights to the state (Naibaho et al., 2020). This implies that the Indonesian Government should not have nationalized the land of the Deli Community, given that the process effectively excludes assets owned by the Deli community, a recognized group of citizens with rights and existence, and is therefore restricted to Dutch-owned assets. Nevertheless, the interpretation of the nationalization policy implemented by the Indonesian Government in 1958 was extensive, encompassing not only Dutch-owned assets but all Dutch-controlled assets (including concession land). This is due to the fact that Nationalization Law No. 86 of 1958 did not provide an explicit definition of what constituted nationalization of Dutch property, and the government regarded land as a critical asset that a plantation must possess.

3.2. The Sultan of Deli and his relationship with Kedatukan

Lah Husny, as quoted by Erman, said that in the lowland Malay region, each village had the right to land that was cleared, while the rights of control and administration were also in the hands of the headman. Because the area is still vast, Malay villages also have certain land and areas for their economic resources, besides trading (Erman, 1985). Part of the area is tilled continuously, but some is tilled periodically, such field land. Some were taken only for the results, such as forest land, namely rattan, resin, and animals. This land is called the Pancung Alas. Each Resident knows the boundaries of the forest fields that they are allowed to use as an economic source.⁶

At that time, each village had its own land and area, some were cultivated directly intensively, and some were cultivated periodically for resin, animals, and others. The boundaries of this village land are straightforward and clear, and are known by residents of other villages, while the village administration operates in autonomous hierarchies within the Sultanate’s authority. The Sultan always holds deliberations with the Datuks, agreeing with the headman /village (Vollenhoven, 1931). It is the indigenous people who have joint rights to the land, and the right to control is with the customary head.⁷ On land that has been cultivated, the land has been divided and the parts become private property. If it is not continuously cultivated, the land becomes a common right that belongs to the residents, as is often the case with reba/farming land on the edges of land boundaries in village areas. Derivatives or Zuriat of the population have land rights (Bool, 1903). Outsiders who are not children in the area are not entitled to land.⁸

After the arrival of tobacco plantation planters in 1863,⁹ there was a drastic change in the freedom of the residents of the four kedatukans to cultivate their customary lands. The Sultanate of Deli and the four Kedatukans representing the customary law community (Adat Rechtsgemeenschap) leased these communal lands to foreign businessmen under concession contracts (long-term leases) for 75 to 90 years.

In the period before and after the arrival of these foreign planters, it was commonplace for the Kedatukan cq the Sultanate to give, hand over, or lend land in their territory to the inhabitants. Suitable for building a residence or farming. In construction, the rights and obligations of the residents are regulated by land use. This is commonplace, considering that the Sultan, Datuk, and the people are inseparable units.

Examining residents who currently occupy buildings on ex-DSM concession lands (cq. the plaintiffs), it can be ascertained that the location of the building is included in the Sukapiring Regency. If, at present, the residents still control these lands, it can be understood according to customary law because the rights to these lands are still in the hands of the Sultanate of Deli as the Head of the Malay Customary Law Community in the Deli region.¹⁰

The complex relationship between the Sultanate of Deli and its inhabitants over land rights is a classic example of the interaction between traditional authority and customary law, especially in a post-colonial context. Legal anthropology theory suggests that such practices are not vestiges of the pre-colonial past, but are active elements of surviving customary law systems. These systems are characterized by flexibility, adaptability and are deeply rooted in community practices. Scholars such as Merry and von Benda-Beckmann argue that customary law remains relevant because it continues to be negotiated and interpreted within communities, often parallel to state law but also operating independently (von Benda-Beckmann, 2022). In addition, postcolonial theory, as proposed by Fanon and Said, highlights the subtle forms of resistance and autonomy demonstrated by communities in the face of external legal imposition (Diyazi, 2019). Land rights in the Sultanate of Deli are a case in point, demonstrating a form of resistance to the homogenizing effects of the national legal system, where customary legal traditions retain authority and relevance.

Property rights theory, especially that articulated by de Soto, emphasizes the importance of recognizing informal property systems (Zazyki et al., 2022). In the case of the Deli Sultanate, the recognition of customary law by the state not only validated the socio-political legitimacy of the Deli Sultanate, but also stabilized the land tenure system. This stability is crucial for economic development and social cohesion, as it assures residents of their rights and responsibilities, which are integral to community and individual identity. Based on this theory, the situation in Sukapiring District can be seen as a manifestation of legal pluralism in action, where the Sultanate of Deli maintains its role as guardian of customary law, upholding the rights of residents amidst an evolving legal landscape. This legal dualism reflects the historical continuity of the region and the ongoing negotiation of identity and sovereignty within the modern nation-state.

3.3. Legal Status of ex-concession sultanate land in relation to law on the nationalization of Dutch companies in Indonesia no. 86 of 1958

Concession agreements (long-term leases) are persoonlijke in nature (individual rights) and not zakenrechtelijk (material rights). Evidence for this can be seen in an archival guide document in the Netherlands which states that: De bestuurlijke invloed van het government beperkte zich tot de goedkeuring van het concession contract door de resident .”¹¹

The exact meaning can also be found in a dissertation written in the Netherlands by van De Waal (Van de Waal, 1950). He said that it was de landbouw concession is een persoonlijk recht, berustend op een overeenkomst tussen de Sultan en de concessionaris (Plantation concessions are individual rights based on an agreement between the Sultan and the concession holder). The dissertation also shows that, in the Sultanates of Deli, Serdang, and Langkat, which cover an area of 5493 km²,¹² none of them are in the form of erfpacht (which after 1960 through the Basic Agrarian Law No.5/1960 was converted to Cultivation Rights (HGU)), but only what was written down in the much written evidence from the start as a Concession agreement.

Law No. 86/1958 concerning the nationalization of Dutch companies in Indonesia was clearly a misguided policy and generalized all the construction of legal relations that existed at that time between Dutch companies and indigenous people. If these actions were taken against Dutch plantations in Java, they would be reasonable. All Dutch plantations had erfpacht status with accompanying material rights. However, the case is different for Deli, Langkat, and Serdang. As previously mentioned, there has never been an erfpacht in these three areas. On Java, the overall land status is Hak Guna Usaha (HGU) mean as the right to lease, which is referred to as erfpacht in the Dutch language. Foreign companies wishing to invest in the plantation industry must obtain sanctions from the Dutch government. Land ownership in East Sumatra is entirely distinct.

Prof. Dr. M. Solly Lubis SH, an Indonesian Constitutional Law Expert, stated in his testimony in the civil case of the Deli Sultanate vs. PT Kereta Api Indonesia (Medan District Court Decision No.371/Pdt. G/2010/PN.Mdn) stated the same tone as said that the policy of nationalizing Dutch companies in Indonesia was politically legitimate, for the national interest. However, legally, the land where the buildings owned by the Dutch company were not included in the assets that had to be nationalized, because these objects belonged to the Deli Malay customary law community, and the object of lease became the realm of civil law. Therefore, these lands must be returned to their owners, namely the Sultanate of Deli, the Head of the Malay Customary Law Community in Deli. Read more, Prof.Dr. M.Solly Lubis said: “Even if there were constitutional changes and a shift in political power since World War II, namely the defeat of the Dutch East Indies Government against Japan, and then Japan’s defeat by the Allies, then the birth of the state and the Government of the Republic of Indonesia, all of these are political facts. Even if the Republic of Indonesia nationalizes foreign companies in this country, it is a legitimate political act to be carried out by the legitimate government, but the customary/Ulayat land belonging to the Deli adat community itself is still a civil asset that belongs to the Deli indigenous community association. ”¹³

The intersection between national interests and the rights of indigenous peoples has been a legal conundrum in the post-colonial era, particularly in the context of the nationalization of foreign assets. The nationalization of Dutch companies in Indonesia under Law No. 86 of 1958 is an important example of the balance between state sovereignty and the rights of indigenous peoples. Prof Lubis has asserted the political legitimacy of such nationalization to regain control over resources, he describes the legal limitations that excluded land under the customary law of the Deli Malays from such state action.The crux of this legal debate hinges on the interpretation of property rights under Indonesian law.

The Indonesian Constitution, while recognizing the supremacy of national law, does not abolish rights held under customary law, which have been protected by various legal instruments (Lukito, 2008). This dualistic approach has been corroborated by the Medan District Court, which upheld the distinction between the political act of nationalization and the protection of customary land rights in its judgment. A comparative analysis of the law reveals similar sentiments in other post-colonial jurisdictions where customary land rights are contested with nationalization policies (Merry, 2006). The underlying principle aligns with the recognition of customary land ownership as an inalienable civil right, which often requires restitution or compensation if violated (Anghie, 2005). In addition, the historical context provided by Prof. Lubis highlights the complex political transformations that Indonesia has undergone, from the Dutch East Indies to the Japanese occupation, and finally to an independent republic. These shifts did not eliminate the customary rights of the Deli Sultanate, as customary land was considered a civic asset that was resilient to political turmoil. This invites further reflection on the wider implications for the rights of customary law communities in the face of state development agendas. Ensuring that these communities are not disenfranchised requires a balance between advancing national interests and respecting civil rights, a balance that remains a cornerstone of legal debates in Indonesia and other countries.

3.4. Juridical recognition of Indigenous land after Indonesia’s Independence (1945 Constitution, UUPA, and other related regulations) and judicial practice

Article 1 of Agrarische Besluit of 1870 as implementing regulations for Agrarische Wet states that all land whose ownership cannot be proven by another person, then such land is state property (dat alle grond, waarop niet door anderen regt van eigendom wordt bewezen, domain van den staat is). Before the Agrarisch Besluit was issued, the meaning of the domain doctrine related to territorial areas directly controlled by the state was narrow. In this case, a distinction is made between free-state land (vrije domeinen; vrij landsdomein) and non-free-state land (onvrije domeinen; onvrij landsdomein).

Article 9 of Stb 1870 No. 118 expressly determines lands that cannot be subject to erfpacht , namely: a land on which there are other people’s rights (Gronden waarop anderen regt hebben), unless they do not want to use these rights; b. lands that are considered to have a magisch/sacred relationship (gewijde) by the indigenous population; c. lands designated for markets or allotments for the general public (openbare markten of openbare dienst bestemd); d. government coffee farms; e. Soils of Teak trees and other forest plants/timber; f. lands located within the territory of the Governor General, which are determined to be planted with government crops; f. Land provided for the development of coffee plants.¹⁴

After 1870, particularly after the issuance of the Domein note in 1916, the Domein Doctrine, in its broadest sense, became generally accepted. The consequence of this is that not many rights of indigenous peoples are recognized and, at the same time, receive legal guarantees. In other words, the range of control of state power through the domain principle becomes very wide.¹⁵ With a broader interpretation, the Domein Declaration is usually read in such a way (cq article 520 of the Civil Code)¹⁶ that land that is not managed and has no owner will be considered state property. This is clearly different from the initial interpretation, which only gave state authority to the vrije landsdomein (Termorshuizen-Arts, 2010).

In other words, with such an interpretation, the state is also pushing into areas/land that has so far been claimed as customary communal land and the like (onvrije landsdomein), as long as the party that acknowledges it cannot be proven.¹⁷

With the enactment of the Agrarische Wet and Agrarisch Besluit in 1870, the Dutch East Indies imposed a new agrarian regime. Initially, this regulation was only applied to land directly controlled by the colonial government on Java and Madura. The following year, the “Agrarian Regulations” (Agrarische Reglementen) began to be enforced outside Java and Madura and included provisions regarding the rights of indigenous peoples over land. In 1875, through Stb. ind. 1875-199a, it was stipulated that agrarian law was also fully applied to colonial lands outside Java and Madura. This means that the Domein Declaration applies to all territorial areas directly under the authority of the Dutch East Indian government (Algemene Domein Verklaring).¹⁸

The first expansion of the colonial constitution before the enactment of Stb 1875 No.199a, the declaration of the entry into force of Agraraisch Besluit for Outside Java and Madura was through Staatsblad 1874 No. 94f above the heading “Wild Lands in Sumatra,” Regulations on how to release uncultivated lands in Government territory in Sumatra. In his consideration, the Governor General, on behalf of the Queen, said that this Staatsblad was issued to remove doubts about the state’s rights over wild lands (woeste landen) in government areas in Sumatra and also laid down rules for releasing these lands in the form of erfpacht (long-term leases).

Article 1 of the Staatsblad states that all illegal land in government territory in Sumatra, as long as indigenous people do not exercise rights derived from land clearing (ontginningrecht), is included in the state land (staatsdomein). On the lands included in this state, in addition to the right to clear land by residents, the authority belongs only to the government. In future practice, Stb.1874 No.94f could not be enforced in a number of sultanates on the east coast of Sumatra (the Sultanates of Deli, Serdang, Langkat, and Asahan) because of the political contracts that had been signed between the Sultanates and the Dutch East Indian Government.

Furthermore, regarding Basic Agrarian Law No. 5 of 1960 in Part II, Article V concerning conversion provisions, which states that land with concession status and lease rights must be converted no later than 24 September 1980, It can be see that these provisions are highly unfair. It may be enforced on ex-plantation concession lands in Deli, considering the political policy of 1958, which nationalized all Dutch-owned plantations. How could the Sultanate of Deli be asked to apply for a conversion of rights while the authority and power of rights over the land had been taken over by the state and then made into state plantations (BUMN Plantation)?

Regarding the legality of customary land tenure, Basic Agrarian Law No. 5 of 1960, particularly Articles 3 and 5, and the Regulation of the Minister of Agrarian Affairs/Head of the National Land Agency No. 5 of 1999 on Guidelines for Settlement of Customary Law Community Ulayat Rights Issues state that ulayat rights are authorities under customary law owned by certain customary law communities over certain areas of their living environment. This privilege derives from an external, hereditary, and unbroken relationship between the customary law community and the area in question.

The discourse surrounding the juridical recognition of indigenous land rights in Indonesia is multifaceted and deeply rooted in the country’s colonial past and the subsequent national response post-independence. The Basic Agrarian Law No. 5 of 1960 was a foundational shift away from colonial land practices towards a system that, in theory, was meant to recognize and integrate customary law (adat) within the national legal framework. The application of ulayat rights, which should affirm the sovereignty of customary law communities over their ancestral lands, reveals a persistent struggle between indigenous claims and state development agendas. Bedner and Huis (2008) argue that the provisions of Basic Agrarian Law and the Ministerial Regulation No. 5 of 1999 tend to recognize ulayat rights in the abstract but fail to protect them effectively in the face of economic and political interests. This argument is supported by the work of Afiff and Lowe (2007), who document cases where the interests of indigenous peoples are often sidelined.

The theoretical underpinnings of this debate are grounded in the work of legal anthropologists like Sally Engle Merry (1988), who suggests that the translation of customary norms into state law is a complex process that can lead to the diminishment of the former’s authority. Furthermore, the critical theory perspective, as advanced by scholars such as Boaventura de Sousa Santos (2002), postulates that the recognition of indigenous land rights within a state’s legal system is often symbolic, with little transformative impact on the actual power dynamics and land tenure security for indigenous communities.

In summary, the juridical recognition of indigenous land rights in Indonesia is emblematic of a broader struggle to reconcile state-centric legal frameworks with customary law norms, where the former often subsumes the latter, leaving indigenous communities in a precarious position. This issue continues to attract significant scholarly attention and remains a critical area for legal reform and advocacy.

3.5. Ex-DSM land is not Medan City Government Land

In view of the development needs for the development of the city of Medan, the Sultan of Deli and his Orang Besar, by means of a deed dated 30 November 1918, surrendered or awarded the lands under their control to the Medan City government (Gemeente Medan) except:1. the lands that are counted as belonging to Sultan‘s village (Matsum City) and Kampung Sungai Kerah Percut, in the Northeast of the Kerah River; 2. Land used by the governor and 3. Lands used by Deli Spoorweg Maatschappij. Which lands were recorded by the Medan City Cadastre through a letter dated 22 April 1918, No.41. Based on this evidence, it is clear that the land controlled by DSM, now named as PT Kereta Api Indonesia (Persero) in the Deli area is not the land of the Medan City Government but land leased by Deli Mij Cq. Deli Spoorweg Maatschappij to the Sultanate of Deli.¹⁹

In a letter written by NV.Deli Universal (undated and allegedly translated from a foreign language English or Dutch) and at the end of the letter, Mr. A. Kloppenburg allegedly the person who wrote the letter and represented NV.Deli Universal,²⁰ which was addressed to Mr. Amin Arjoso (Advokaat), having his address at Jalan Taman Amir Hamzah No.28, Menteng Jakarta -10,320, Indonesia, related to rights Polonia concession, stated several things, among others:

1. We (in this case NV Deli Universal) agree with your opinion (presumably Mr. Amin Arjoso) that the concession rights according to the concession agreement can only be handed back to the owner (in this case, the Sultanate of Deli);

2. The principle of Nemo law plus juris that you put forward requires that a lessee does not have the authority to hand over the land he is renting to a third party. If a tenant signs such a deed, then the deed has no legal consequences. This means that the legal owner can claim land from a party who believes that he has ownership rights to the land based on an agreement made with the tenant.

3. As can be seen from the things explained above, as long as there are no other legal facts—the Sultan as the legal owner of these lands—can claim those lands from parties who now claim to have those rights, as long as his right to claim does not expire.

In several cases during the course of implementing the DSM concession, It found a number of archives in the Netherlands showing that the legal basis for the use of land for the purposes/needs of railroads and buildings related to railroad concessions was a rental agreement that showed evidence of a return. Exconcession land no longer used by DSM to the Sultanate of Deli and the Sultanate of Serdang. One of the land return letters is the DSM Letter to the Deli Sultanate at the Deli Tua emplacement dated 12 April 1924.²¹

The legal principle of “Nemo dat quod non habet” implied in the NV Deli Universal’s correspondence aligns with the broader legal consensus that rights cannot extend beyond one’s entitlement; thus, a lessee’s attempt to transfer land rights would be void ab initio. This principle is entrenched in both historical and modern jurisprudence, as it ensures the protection of the original owner’s rights against unauthorized third-party claims (O’Mahony & Roark, 2022).

The archival evidence pointing to a lease agreement as the basis for DSM’s land use, with provisions for reversion to the Sultanate of Deli, exemplifies the legal doctrine of reversionary interests in property law, which allows the original owner to reclaim possession after the expiration of certain conditions or tenancies (Ilori & Adebayo, 2020). Moreover, this historical precedent has contemporary relevance, as seen in the disputes over land rights and historical concessions in other post-colonial societies.Post-colonial land rights reiterates the complexities of land ownership that emerge from historical concessions, emphasizing the need for a careful examination of historical documents and treaties. Their findings resonate with the situation of the DSM land, suggesting that modern legal disputes over such lands necessitate a nuanced understanding of historical contexts and legal continuity (Murata et al., 2022).²²

Finally, the historical context of land concession and ownership in Medan, as it relates to the DSM land, provides a compelling case study for the intersection of historical legal agreements and contemporary property law. The enduring legal doctrines, such as lessee limitations and reversionary interests, are essential for interpreting historical concessions in the current legal landscape. The discussion thus far underscores the importance of historical documentation in informing modern legal adjudications concerning land rights.

4. Conclusion

Based on archival facts, secondary materials, and the legal analysis described above, it can be concluded that

1. The Concession Land is not Erfpacht (Utilization Right), Opstal (Building Use Right), Eigendom (Property Right), V ruchtgebruik (Right to enjoy the results), or other rights. The Concession Contract was a long-term lease that was not known in other parts of the Dutch East Indies at that time and was only used for land in the royal territory of East Sumatra (for lands that were not the direct territory of the Dutch Governor).

2. Concession contracts are personallijk rechtelijk in nature and are not subject to book II of the Indonesian Civil Code but book III of the Civil Code (Burgerlijk Wetboek). This conclusion is made by analyzing the categorization of civil law and the classification of civil law publications. The divided of the Civil Code is as follows: Book I deals with Personal Law, Book II deals with the Law of Objects, and Book III deals with the Law of Agreements, specifically regulating open agreements in an open system. Book III operates as an open system, allowing for the possibility of entering into additional agreements beyond those specified in Book III of the Civil Code. The open system of Contract Law is founded on the notion of contractual freedom (beginse der contract vrijheid), as stipulated in Article 1338 of the Civil Code. This principle states that legally binding agreements will be enforceable as laws for the parties involved.

3. Concessionary land handed over to foreign companies by the Sultanate acting on behalf of its Customary Law Community (Adat Rechtsgemeenschap), where the Sultanate institution is a unit entitled to customary land (ulayat land/beschikkingsrecht). Furthermore, the concession land managed by Deli Spoorweg Maatschappij (DSM) does not belong to the foreign company, but belongs to the indigenous people (Masyarakat Hukum Adat), where the king or Sultan acts as the customary leader.

4. The rights of the Sultanate and the Customary Law Community cannot be abolished, even though Law No. 86 of 1958 concerning the Nationalization of Dutch Companies took these lands to become State Companies (Railways, Plantations, etc.).

5. Considering that since 2002 (counting 90 years since the change of concessions voorwaarden in 1912) the ex-DSM concession lands have expired, it is legally obligatory for DSM or PT KAI (Persero) to return the lands to the Sultanate.

6. Based on Civil Law, the Dutch East Indies Government (Van Mook) had no right to unilaterally cancel the Deli Kingdom Political Contract with the Dutch East Indies Government (1907 and 1938) by handing over the power of the Deli Kingdom in East Sumatra to the State of East Sumatra through Governor General’s Decree No. 2 Year 1948. The Sultanate of Deli has never violated any of the articles in the political contract (never carried out Onrechtmatige Daad). Consequently, the sultanate of deli and other sultanates in East Sumatra and their indigenous peoples lost their rights to land and living space because the Indonesian government took all authority.

7. According to the Deli Spoorweg Maatschappij case, international law affects land ownership claims. Hence, Medan’s indigenous rights violations may contravene international law. Thus, Sumatera Utara’s land rights should be considered in light of global indigenous rights.

8. Our study, based primarily on Dutch archives, might have missed local perspectives in Sumatera Utara, focusing mainly on legal histories and potentially overlooking wider human impact. Future research should consider partnering with the Sumatera Utara archives and elders for a more comprehensive narrative, exploring the lasting effects of past land disputes on present-day communities, and understanding the influence of historical rights on contemporary land use and development.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Supplemental material

Supplemental data for this article can be accessed online at https://doi.org/10.1080/23311886.2023.2286666

Additional information

Notes on contributors

Edy Ikhsan

Dr. Edy Ikhsan, S.H., M.A. was born in Medan on 16 February 1963 and is a lecturer in Faculty of Law at the Universitas Sumatera Utara.Dr. Edy Ikhsan specializes in the intricacies of land rights during the colonial era and the subsequent implications these rights have had on contemporary societies and legal frameworks. His research offers a deep dive into the appropriation, regulation, and use of land during colonial periods, shedding light on the sociopolitical dynamics that shaped indigenous and colonial interactions.

Notes

1. www.kai.id accessed on March 28, 2023.

2. The Four Tribe Datuks in question are Datuk (Urung head) XII Kuta (Silver Expanse), Sunggal (Serbanyaman), Sukapiring and Senembah. It was these four Datuks who had strategic authority in their territories and made the Sultan of Deli the customary, religious, and governmental leader/head who brought together the unity of the four kedatus. See Hallewijn. EA Geographische en Etnographisce Gegevens Betreffelijk Het Rijk van Deli. (TBG 23:1876); and Perrett, Daniel. Colonialism and Ethnicity: Batak and Malay in Northeast Sumatra. Jakarta: Gramedia Popular Libraries. 2010, Hal: 141–142.

3. Sealed letter of the Sultan of Deli dated September 30, 1882. Source: Dutch National Archives (approval dated 6/3/2015).

4. Janssen, Gerard. Grant Rechten in Deli (Uitgave van Sumatra Institute, 1925), p.38. and Pg.23–24

5. Concession Terms (Concessievoorwaarden van Deli Spoorweg Maatschappij 1883).

6. Erman, Erwiza. The 1872 Sunggal Rebellion in Deli: Answers to Social Change, in Indonesian Society: Indonesian Social Sciences Magazine. Jakarta, April, Volume XII No.1, Erman (1985): Pg.61.

7. Van Vollenhoven, Het Adatrecht van Nederlandsch Indie. Leiden, EJ. Brill, 1931: p.302.

8. Bool. HJ Landbouw concessions in de Residentie Oostkust van Sumatra Osstkust van Sumatra Institute, Bool (1903):

9. p.53.

10. In 1863, the first tobacco planting contract was made between the Sultanate of Deli and Jacobus Nienhuijs (the son of a tobacco trader from the Netherlands).

11. Hallewijn. EA Loc. cit.

12. “The agreement is made on the basis of an agreement on individual rights between the authority of the area concerned (King) and the planters. The influence of the (Dutch pen) government was limited to the approval of the concession contract by residents. Inventory of van het archief van de NV Deli Maatschappij, Dochtermaatschappijen en Gefuseerde Bedrijven, (ca. 1700) 1869–1967 (1968). Nummer archiefinventaris: 2.20.46. p.20.

13. Van de Waal’s notes revealed that the erfpacht was only successful in areas subject to the Verklaring Korte, such as Simalungun (covering an area of 89 km2), Asahan (area 95 km2), and Labuhan Batu (area 748 km2). See van de Waal, Robert. Richtlijnen voor Een Ontwikkelingsplan voor de Oostkust van Sumatra (proeftschrift), Wageningen: Van de Waal (1950). Pg.54.

14. Solly Lubis, Testimony Documents in Medan District Court Decision No.371/Pdt.G/2010/PN.Mdn.

15. The mention of land that cannot be leased is then strengthened by Stb.1872 No.116, wijziging van het Koninklijk besluit, opgenomen in Indisch Staatsblad 1870 No.118.

16. Domeinnota (Memorandum Domein) was published in 1916. The domeinnota was made by a bureaucrat from the Ministry of GJNolst Trenite and published as an appendix to the Agrarisch Reglement voor de Residentie Sumatra ‘s Westkust met toelichting. Batavia: Landsdrukkerij 1916. Domeinnota has since been considered to represent the government’s view of how the Domein Doctrine should be interpreted and enforced.

17. See Termorshuizen-Arts, Marjanne. The Indonesian people and their land: Development of the Domein Doctrine in the colonial period and its influence on Indonesian Agrarian Law in Safitri, Myrna A, and Tristan Moeliono. Agrarian Law and Indonesian Society. Jakarta, HuMa, Van Vollen Hoven Institute, and KITLV-Jakarta. Termorshuizen-Arts (2010), Pg, 39.

18. Article 520 BW in the Dutch East Indies, according to the Termorshuizen-Arts, should actually be read as an affirmation that land that is not managed and has no owner will be considered the property of the state. The enactment of Article 520 BW above implies that it is the state that has to prove that a plot of land is indeed not managed and not owned by anyone. Only in this case can the state claim be the owner. In reality, however, the Dutch East Indies version of the Domein Declaration reversed the burden of proof: it is not the state that has to prove it, but the person claiming land rights who must prove himself as the legal owner or ruler of the land. Ibid. p.40.

19. Termorshuizen Arts, Ibid. p.43–44. The essence of the statement on the application of Agrarisch Besluit for outside Java and Madura reads: Article 1 van het Koninklijk Besluit van 20 Julij 1870 No. 15 Indisch Staatsblad No. 118) is, behoudens het bepalde bij het tweede lid van article 27 van het regulation op het beleid der Regering van Nederlandsch Indide, also van toepassing op de Government Landen in de bezittingen buiten Java en Madura.

20. A copy of deed legalized in the Dutch National Archives dated March 6, 2015. Deed title: Schenking door Het Inlandsch Zelfbestuur van Deli aan de Gemeente Medan. Office of DJ Focquin de Grave, Notary te Medan.

21. NV Deli Universal letter addressed to Mr. Amin Arjoso (without date, month, or year related to the Polonia concession land case). NV Deli Universal is a Limited Liability Company in the Netherlands, which is currently the trading arm and distribution arm of Universal Corporation as well as the sister company of the Leaf Tobacco Company. Deli Universal represents the continuation of Deli Maatschappij, which was built by Jacobus Nienhuijs and his friends in 1869 to cultivate concession lands for tobacco plantations in Deli, East Sumatra (now most of it is North Sumatra Province). Deli Universal currently focuses on three main markets: Wood/Building Products, Agriculture and Tobacco. http://www.fundinguniverse.com/company-histories/deli-universal-nv-history/

22. Deli Spoorweg Maatschappij (Afschrift/Copy), Dossier A. No.26. Overeenkomst ddo. April 12, 1924 met ZH d en Sulthan van Deli betreffende teruggave van een stuk grond het placement Deli Toewa.