Common Resources and Community Management

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(from Vocabulary of Commons, article 23)

by Walter Fernandes, Gita Bharali and Melvil Pereira[1]

Common resources, community management and tribal customary laws in Northeast India

One can identify three main community resources in Northeast India. The first of them is the material resource of land, forests and water sources. Linked to them is the community-based customary law. The third is the identity that these together provide to the tribal communities. All of them are linked to the commons that are often referred to as Common Property Resources (CPRs). The tangible and intangible benefits they provide are important sources of livelihood to rural households in general and to the tribal communities in particular. They are more important in the Northeast India than in mainland India because of its hilly terrain inhabited by some hundreds of tribes. So all three of them can be included among the commons.

This chapter is an attempt to understand the role the commons play in people’s livelihood in the Northeast and the implications of modern inputs on these resources and on the communities depending on them. That requires a search for an alternative because the Northeastern economy is agrarian. 47.4% of its people call themselves cultivators and 11.41% are agricultural labourers. But because of the neglect of the secondary sector 70 to 75% of the workforce of the region depends on the primary sector against 66% in India as a whole. More than 20% depend on the tertiary sector. That shows the importance of the commons.

The commons in India and in the Northeast

The common resources that provide both tangible and intangible livelihood to their dependants are often called CPRs. They include land, forests, water sources, panchayat and wasteland, rivers, ponds, watersheds, rivulets and other community assets used for cultivation, grazing, non timber forestproduce (NTFP) and the rest of people’s sustenance. To those dependent on it, the commons give benefits such as staple food from jhum (shifting) or other forms of cultivation, NTFP like edible fruits, leaves and vegetables, small timber and medicinal herbs (Shyhendra 2002: 3291). Most include among them only the natural resources like land, forests and water sources. Others include the sustenance of all the subalterns such as marine fisheries (Menon and Vadivelu 2006).

The CPRs are thus defined by their ownership while the commons are based more on their use than ownership. Apart from common lands that are prominent in the CPRs the commons include also resources that belong to individuals but are managed by the community tradition. Basic to the commons is collective management but not necessarily open access (Nongkynrih 2009: 16–17). Thus, the central purpose of the commons is people’s sustenance that includes their culture, economy, social systems and identity. It refers to all resources, whether individually owned or depending on co-ownership on which a community sustains itself. Their co-ownership is conferred by some type of membership of the community or group such as a village or a town.

That is true of the CPRs too. But the commons are defined by their management, not co-ownership which is basic to the CPRs. The commons may be owned by individuals or families or clans or the whole village but they are managed in common for the sustenance of the community. That is where tribal customary laws enter the picture. Most tribes have customary laws and rules for resource management that includes their protection and benefit-sharing. They also combine individual with community ownership. Specific to the commons is the fact that even individually owned resources are governed according to the community-based customary law to ensure their sustainable management. They apply whether the resources are owned by the community or individual families (Fernandes, Pereira and Khatso 2007: 29–38).

Commons in the Northeast

Because of its complex classification of land the meaning of the CPRs and commons differs in the Northeast from that in mainland India. Each state and even each community has its own classification. J. B. Ganguly (1978) mentions three main categories. Land owned by the:

  1. Village collectively.
  2. Chief who distributes it among individual families.
  3. Individual families.

The first two categories are common and the third is private according to the present formal law but even that changes from region to region. The non-scheduled areas of Assam, for example, have three types of land ownership—patta (individual), Aksonia (temporary) patta and non-patta or khas land that can be called common. A patta is permanent, eksonia patta is usually for one year and khas land is considered state property. In the sixth schedule areas[2] the village headman plays a role under the District Autonomous Council (DAC). That is supposed to be in accordance with their customary law. In reality, the land is under the direct control of the DAC. The DAC defines the power of the chief and the meaning of the commons according to the formal law, not the customary law. It may even contradict the customary law.

Because it considers commons as state property, the state treats their inhabitants as encroachers who deserve to be evicted though it was their habitat for centuries before the colonial individual-based land laws were enacted. For example, the study on development-induced displacement in Assam 1947–2000 showed that, according to official records, the state had used 3.9 lakh acres during these 53 years and had displaced 4.2 lakh persons from them. The study showed that the reality was not less than 14.1 lakh acres that displaced 19.1 lakh persons (Fernandes and Bharali 2006: 78 & 108). Since the inhabitants of the common lands were treated as encroachers, they were not even counted among the displaced when their land was taken over.

It is not merely the law but also the population and their customary laws that introduce diversity in the region. Arunachal Pradesh, Meghalaya, Mizoram and Nagaland are tribal majority states. The tribes are a minority in the remaining states. Nagaland and Mizoram run civil affairs according to their customary law under Articles 371A and 371G respectively of the Constitution of India. Though Arunachal Pradesh is nearly two thirds tribal, it is not covered either by the customary law or by the fifth or sixth schedule. Manipur too does not have either schedule but land in its tribal majority hill areas is managed according to administrative rules that have evolved over three decades. Tripura did not have either schedule till the 1990s when a tribal majority district was formed under the sixth schedule as part of a peace accord (Borooah 2002).

Commons and the customary law

Given above is the legal reality of the formal law. The social reality of the customary law may not be in accordance with it. An interface of the two systems can introduce new dimensions such as class formation and stronger patriarchy in their societies. One cannot conclude from it that all the customary laws are just or equally community-based. They change from tribe to tribe but have some commonalities. For example, most tribes manage all land collectively even when it is individually owned. Common land is (Nongkynrih 2009: 18–19):

  1. Village forests.
  2. Streams, rivulets, and rivers (often shared with a neighbouring village).
  3. Village settlement area.
  4. Village ponds, roads, footpaths, and burial ground.
  5. Public open ground.

Individual families own the rest but manage it according to the community- based customary law.

Thus, the concept of the commons is considerably different from that of the CPRs. It includes only resources owned in common while commons refers to management, not ownership. The customary law is central to it. Land and other resources come under it whether they are owned by an individual, a family, a clan or a village, as long as they are managed according to the community-based customary law. The law itself changes from tribe to tribe but in all of them it determines the utilisation of the village land and forests, ensures that the common resources within a village are accessible to the whole community and that no individual gains exclusive property rights over them. The customary law also demarcates the territory and boundary of each village (Shimray 2006: 36). Most importantly, the customary law confers an identity on the community. Because of it both the customary laws and the identity it confers can be included in the commons. That will be discussed in a later section.

Customary laws of different tribes have both commonalities and differences. For example, most Naga tribes of Manipur combined individual ownership with clan or village control. The village council or clan that had control over land permitted no alienation. All operations relating to land and forest come under the jurisdiction of the village chief and council who are bound by the customary laws of the community (Singh and Devi 1991: 55–56). The Tangkhul Nagas, for example, treat community land as an important component but ensure that individually owned land is not alienated. An individual is free to use community land for cultivation but after the season the plot reverts to the village automatically. If an individual makes permanent improvements on a plot of land for agricultural purposes, like converting it into terrace fields, eventually it comes to be treated as individual land (Shimray 2009: 248–249).

On the other side, traditionally the Kuki-Chin tribes of Manipur did not have individual ownership. The chief owned all land and each family paid him a tax for the land used for jhum cultivation. The tax varied from 3 to 5 tins of paddy.[3] The right enjoyed by the chief was neither proprietary nor hereditary. His office rotated from clan to clan. Some differences existed even within the Kuki-Chin family. For example, the Thadou chief had absolute control over all land. He owned it but could allocate it for jhum cultivation annually only in consultation with the Semang Pachang or council of ministers. It ensured that each family got an equal share. But in no tribe of this family could the individual or family claim ownership over the plots allotted to them. If a family was unhappy with the chief they had to leave the village (Rajkhowa 1986: 96).

The land of most Naga tribes is classified broadly into primary or agricultural and reserved. The reserved land is broadly divided into three categories (Tamuly 1985: 96–98):

  1. Village land, which is kept apart for public purposes. A portion of it is forests. This land is accessible only to the residents of the village under the control of the village council.
  2. Clan or khel land is used only by the members of a khel.
  3. Individual land is what has been inherited or acquired. Such land is privately owned and the owners can lease it out.

For example, traditionally the Ao of Nagaland had four types of land— what belonged to the village as a whole, to the clan, to an individual family and group or morung land. The village land that was managed by the village authority through the chief consisted of the house sites, woodlands and forests. Some large forest areas of the village were also split into individual holdings for cultivation and other purposes. The users had to pay a rent to the chief. The clan usually vested the jhum land with its members in perpetuity. Individual land was in the name of the head of the family. Group land was allotted to a specific group like boys staying in the morung (dormitory) to collect firewood from it. Also those who were ostracised from the community were allotted some group land for their sustenance (Das and Nath 1979: 125–126).

In the Mizo tradition, land was under the village council. The village chief controlled and allocated it to the families for jhum with the help of experts called ramhual. In return the family paid him fathang or a kind of tribute in baskets of paddy (Das 1990: 6). Among the Angami the individual family has absolute right over terraced land used for rice cultivation but forest land is owned by clans and village (D’Souza 2001: 30).

In Arunachal Pradesh too, the ownership pattern changed from tribe to tribe. The Nyishi demarcated the commons clearly by including uncultivated forests, rivers and natural resources in it. These resources were under the control of the village council and were used by the whole village. Among the Galo too the commons owned by the village included land used for residential purposes like houses (nam) and granaries (nasu) (Nongkynrih 2009: 23). The Adi chief allotted land to individual households only for cultivation and in theory its ownership was vested in the community (Agarwal 1991: 44). The Aka tradition lacked the very concept of individual ownership. Each family cultivated as much land as it needed in the jhum season after which it reverted to the community. A family could use wetlands on the river banks for settled agriculture but they continued to belong to the village (Fernandes and Bharali 2002: 22–23).

The Khasi of Meghalaya had three broad categories of land: (i) Raid (community land); (ii) Rykynti (privately owned land); and (iii) Clan land. Raid land belonged to the community and was within its jurisdiction. It was divided among the permanent residents of the village into residential land where houses and common facilities were built and land for economic purposes, mainly agriculture. The right to use it was based on the membership of the village. The darbar (village council) owned and managed it. The headman did not have the authority to permit non-Khasis to use it. Each clan owned its own land. Forest land was divided into sacred groves, village community forest, protected and individual forest. People could not use the sacred groves. The darbar controlled the community forest. People could collect leaves from the protected forest for domestic use but not for sale. The owner could use the individual forest (Dutta 2002: 59). Ri Bhoi district in the Khasi hills was unique because almost all its land was communally owned. It was managed by the chief representing a cluster of villages. Traditionally, among the Garo of Meghalaya clan land (akhing) was under the control of the nokma.[4] The homestead plots were owned not by individuals but by the community (Kar 1982: 29). In the tradition of the Jaintias of Meghalaya common land was owned by the syiem[5] (Nongkynrih 2009: 28).

The Tripura tribes present a different picture. Changes in their land laws began already under the monarchy in the colonial age. The king began to allot land to the people through the collectors appointed by him. The collectors took the help of a Choudhury from each village to distribute the jhum land. The village retained its customary right to select the jhum plot but had to get the Choudhury’s approval after selecting it. Land was classified into Jhum, Nal, Lunga, Chera, Bhiti and Bastu. Jhum land belonged to the community and consisted of a house site, forest and jhum plots. It was managed by the village authority under the control of the Choudhury. Nal land situated in the plains or river banks with high fertility was individually owned by the villagers with permanent heritable rights but not of alienation. Lunga land lying between two hills was used for permanent cultivation. It was allotted to the people with an annual tax which differed from tribe to tribe. Chora land situated on both sides of the river was owned by the villagers. Bhiti and Bastu land was permanent and heritable but not transferable (Roy 1986: 59–62). Thus, traditionally, tribal villages had some form of community ownership recognised by the King. The village chief enjoyed customary rights over land.

Customary laws and the commons

The preceding sections show the centrality of the customary law to the commons. They were defined not by ownership but by the community-based management systems. The attack that came on them from the formal law was not merely on land but also on the customary law that ensured sustainable natural resource management. Any visitor travelling the hills of Northeast India would experience it in the impressive landscape and the thick green cover that drapes it. Despite the patches of balding hills resulting from the formal system, there is dense forest cover in much of the region. As early as 1914 the British administrator L. W. Shakespear (1914: 218–219) captured the rich greenery of the Angami region of Nagaland when he wrote:

To a stranger suddenly arriving in the Angami country nothing strikes him with greater surprise and admiration than the beautiful terraced cultivation that meets the eye everywhere, on gentle slopes, sides and bottom of the valley, in fact, wherever the land can be utilised in this way. In preparation, upkeep, and irrigation, the greatest care is taken far in excess of anything seen in the northwest Himalayas. The appearance of the countryside for miles south of Kohima, for instance, is such as to suggest the handiwork and labour of a far higher order of people than these wild Nagas. These terraced fields are often bordered with dwarf alder bushes, are carefully irrigated by an elaborate system of channels bringing water down from mountain streams, and luxuriant crops of rice are grown on them. To pass through the valley where stand the two powerful villages of Khonoma and Mezoma during late October when the grain are ripe is indeed a delight for the eye—a veritable golden valley.

Shakespear’s fascinating description of the Angami region held good for all the hills of the Northeast though it might not be true today of some parts in its totality. Many changes that have occurred during the last century will be discussed later. Despite this, there are areas in Northeast India which have managed to keep their forests and hills safe from the market and commercial forces. It is the customary law that has played an important role in preserving the forests and natural resources from the clutches of economic interests. The communities which have remained close to their age-old norms and practices of regulating lands, forests and other natural resources have succeeded in protecting their commons.

That makes the customary law central to tribal identity in the region. That is reason enough to treat the customary law and the identity linked to it as integral to the vocabulary of the commons. That also distinguishes the commons from the CPRs. The latter denotes only community property resources and gives importance to ownership. Commons, on the contrary, include all the resources managed under the community tradition or the customary law. Emphasis in it is on effective sustainable management and protection. This next section will examine such claims by looking at various situations in which customary laws play this role.

Significance of tribal customary laws

Indigenous peoples the world over use the customary law for reasons as varied as natural resource management and protection and as a conflict resolution mechanism. In the recent past it has been used primarily as a means of asserting the ethnic identity of indigenous communities that are threatened by the forces of globalisation. They treat the customary law as a useful tool to protect the common resources, promote harmony in the community and maximise ethnic identity claims. Specific to it is its role as a social organisation mechanism. This role of the customary law is crucial for maintaining harmony in the community (Human Development Report 2004: 59). The preceding section has shown that it plays a significant role in determining the ownership of land and regulating the use of forests. It articulates the rules of access, extraction and use of the natural resources ensuring their sustainable management. The customary law is thus the repository of the values and ideals of a tribe and is central to its identity. The role it plays in managing and conserving forests is the main reason why the customary law is increasingly being studied by social scientists (Ostrom 1990; D’Souza 2001; Orebech 2005).

Most societies have their own customary laws. But the major difference of the tribal communities is that they are anchored in a specific place unlike the caste groups that live with all other castes. Because of it the tribes develop appropriate rules and regulations to suit that particular environment. Their social and political organisation is shaped round the management of their natural resources. Thus most customary laws originated in response to the needs of a particular group of people settled in a specific place at a given point of history. That makes them location specific, people specific and time specific (Krishnan 2004: 48) because most of them came into existence through the interaction of people who lived in a specific environment and a set of natural resources. So they contain guidelines for their ownership, use and protection.

Management and regulation of their forest and other natural resource based sustenance was in fact the primary need of the indigenous communities. They could not afford to harvest these resources as the industrial agents do. To industrial agents these resources are only a raw material and a source of profit so they do not think of their renewal (Guha and Gadgil 1996: 34–35). To the communities depending on them such wanton destruction would have meant starvation because of lack of food and other materials that they used obtained from these resources. Preservation for posterity and inter-generational equity are basic to the norms of the customary law that guides the management of these resources. Basic to the creation of such rules was interpersonal interaction and collective decision making mechanisms (Bjarup 2005: 151). In these rules and regulations, the customary laws kept the needs of the community above those of individuals.

Some criticise customary laws as being rigid and static or as getting caught up in age-old beliefs and traditions and not allowing the community to develop. This criticism can be levelled against all the formal or statutory laws. But one cannot ignore the fact that the customary laws originated in response to a specific need in a particular context. So they are subject to change according to the requirements of their practitioners (Sheleff 1999: 84–88). Referring to the Canadian Amerindians, Borrows (2002: 27) argues that ‘First Nations legal traditions are strong and dynamic and can be interpreted flexibly to deal with the real issues in contemporary Canadian law concerning Aboriginal communities’. He adds that the customary law, their living document, changes and evolves according to their needs and on their terms.

Customary law and the management of commons

An area in which customary law-based resource management of the commons is seen more than in others is jhum or shifting cultivation which is practised widely in Northeast India. Against around 25% of the tribals in mainland India, some 90% of those in the Northeast practise it (Roy Burman 1993: 196–197, Gangwar and Ramakrishnan 1992: 101–102) argue that this traditional form of cultivation has been successful in this region because the tribes keep norms such as the number of years of fallow period for the land to reforest. The technology they use for it includes soil conservation techniques. Such practices are founded on their time-tested traditions. That is why studies have also highlighted the instrumentality of the customary laws in the sustainable management of the natural resources (Orebech 2005).

In the Northeast the customary laws of various tribal communities employ an intricate mix of land and forest management patterns like ownership by individuals, clans, khels and villages (Fernandes, Pereira and Khatso 2007: 28–38). It is also true, as discussed above, that due to the influence of the market and commercial forces, these management systems are at different stages of transition from communal to individual ownership (Buragohain 1990: 10). However, in most tribes of the Northeast communal ownership of land continues to be intertwined intricately with private ownership. Experience shows that such a mix has a positive impact on the management and conservation of the natural resources. For example, as the quote from Shakespear shows, the Angami customary law ensures the maintenance of a balance between individual and communal ownership. It does not give a free hand to any individual to accumulate land but ensures that the requirements of each and every family are met. This combination of ownership by individuals and the community also maintains a balance between fields and forests. That balance is essential for successful cultivation of their fields (D’Souza 2001: 56). Such mechanisms are not unique to the Angami of Nagaland. They exist also among the Tangkhuls of Manipur and others too follow a similar pattern.

The commons, customary law and women

The three key features of the customary law based commons management are intra-generational equity, inter-generational equity and a relatively high women’s status. One speaks here of a relatively high status of tribal women, not of equality. In no tribe is the woman equal to men. Even matrilineal tribes are patriarchal. In these tribes too the village is exclusively male controlled. Even when inheritance is through the woman, decisions on alienation of land are taken by men. What conferred a relatively high status on tribal women is the gender-based division of work and of control between the family and social spheres. In most tribes, the village council made up of men alone controlled the resource. But women were in charge of the family economy, production and decision making.

Jhum cultivation is representative of such management. The village council made up of men alone took the decision about the plot to cultivate that year, the area to be allotted to each family according to the number of mouths to feed and which family with an excess of adults would assist which one with a deficit of workers. At this stage the man of the house took over, chose the plot his family would cultivate that year and performed the religious rites to mark the beginning of cultivation. After it the woman took charge of cultivation and organised work in the field (Fernandes and Menon 1987: 77–82). From a gender perspective, work was more equitable than in settled agriculture because of this division. In the latter, the man owns land, takes decisions on the type of crops to grow and decides the division of work. Men do what is considered difficult work and allocate to women tasks that involve standing in wet fields and bending for a long time (Misra 2000: 74–77). It shows women’s lack of control over the resource.

One does not claim that the woman had full control over community-managed resources. She only took charge of production, not of the resource but community management gave her greater control over their sustenance than her counterparts in caste societies had. She was not in charge of the resource but, inasmuch as she controlled the family economy and production, she had control over a part of the economy. Work on that resource turned her into an economic asset and that was the basis of her relatively high status. She was not equal to men but had greater control over its production and economy than her counterparts in other societies did. Around these resources she met other women and exchanged information. There she gained access to resources required for her own sustenance and that of her family (Menon 1995: 101).

Since she controlled the family economy, her dependence on the commons was greater than that of men. So she had a bigger vested interest in treating them as renewable. Due to her greater dependence on the resource and control over the family economy because her social status depended on abundant resources (Pathy 1988: 26), alienation of the commons has serious implications for her economic as well as social status. However, the formal land laws that replace the customary laws alienate the commons from them by recognising only individual ownership which is invariably in favour of men. That has serious implications both for equity and women’s status. One does not state that the customary law was unblemished. The communities run under it had a hierarchy and did not treat women as equal. But they ensured intra and inter-generational equity, not necessarily equality. Because of the role of equity they played, the customary laws are included among the commons.

Customary law and identity

Within these limitations of exclusive power and patriarchy the myths of origin of each tribe legitimised its social system and resource management. On this count the middle India tribes differed substantially from those of the Northeast. The myths of middle India linked the resource to the origin of the tribe or clan. Based on it their customary laws attached sacredness to some economically important species. Through the totem that symbolised their origin the tribes built their identity around their commons understood as material resources. In the Northeast, on the contrary, most myths are centred on the village, its forest and gate, not the sacred groves. It is because they are relatively recent immigrants to the region while those of middle India were in their present habitat when they began to develop their clan-related identity. That explains why the sacred groves of sarna, akhra and sasan were of very great importance in middle India. The sarna, the forest where teenagers were trained into adulthood represented the present generation. The akhra or dancing ground where young men and women met and formed marital alliances symbolised the future generation. The sasan, the burial ground represented the past. The tombstone of an ancestor in the sasan was the only ‘document’ a family required to claim its right to cultivate land in that village. No axe or sickle could be used in the sacred groves. These tribes conferred sacredness also on some economically important trees such as sal and mahua and some other plants and animals that were represented by the totem. Their fruits could be eaten but the trees could not be cut till they grew old. Some less economic species like mangoes and jack fruit were treated as sacred but at a lower level than sal and mahua (Deeney and Fernandes 1992).

Their customary law ensured the protection of sacred species and regulated the use of ones that were not sacred. Their myths of origin were around the resources that were their sustenance i.e. the centre of their economy, culture and identity. Since their renewal was basic to the tribe’s continuity they linked the present resources to the past and future generations. Through these systems they declared that the resource was a gift from the past, to be used according to present needs and preserved for posterity. Their customary law ensured that the tribe adhered to this norm of sustainable use and preservation for posterity. That ensured inter-generational equity just as jhum ensured intra-generation equity (Fernandes, Menon and Viegas 1988: 163–167).

In the Northeast too the resources were tribal sustenance but their identity was linked more to the village than to the resource. Their clan identity had already been formed before their arrived in the region so they could not create a new one after they reached the region. That explains the absence of myths of origin and of sacred groves among the tribes. That also turned the village and not the clan into the centre of their life. So their oral histories are centred round the spirits of the village and forests (D’Souza 2001: 52–53). The Khasi are probably the only tribe in the region to have a myth of origin and sacred groves. They claim to have originated from the seven huts that broke away from the sixteen huts in heaven and landed in the Khasi Hills. The sacred groves symbolise their origin and continuity in the region (Bhattacharyya 1995: 22–23).

Because the village and the forests around it were crucial for their identity, the customary law meant to manage the resources attained greater importance in the Northeast while in middle India the sacred groves and other natural resources were the centre of identity. The totem and the myths of origin legitimised the customary law. Even today, these tribes link their identity to the resource. Most of their struggles are for jal, jungle, jameen, jasbath i.e. water resource, forest, land and identity. They mention the resource and not the customary law as basic to it. The state too accepts this thinking, for example, in the Panchayats (Extension to the Scheduled Areas) Act 1996 that was enacted after a struggle and much discussion with their leaders. It speaks of their right to govern themselves according to their traditional political systems. But its thrust is protection of their livelihood. It stipulates that the gram sabha, their basic political unit should be consulted before land acquisition for a development project under the Land Acquisition Act 1894. The customary law continues to be subordinate to the resource (Krishnan 2000).

In the Northeast also the customary law governed resources. But in the absence of myths of origin and of sacred groves the law, not the resources it governed, became the centre of identity. The law of each tribe fixed norms for forest and land management and ensured inter and intra-generational equity by regulating forest and land ownership and use (Fernandes, Pereira and Khatso 2007: 24–25). It is true that in the context of shortages caused by land alienation and immigration most ethnic conflicts today are around land. But their nationalist political struggles are around autonomy with the customary law as its centrepiece. The Naga and Mizo peace accords recognise them as intrinsic to their identity, culture and tradition. The Constitution was amended in 1963 to add Article 371A to recognise the right of the Nagas to run their civil affairs according to their customary law. It was amended once again in 1986 to add Article 371G to accord the same right to the Mizos. Also the sixth schedule that resulted from many struggles confers on the tribes greater autonomy than the fifth schedule does. It treats their traditions as important but does not mention the customary law explicitly (Fernandes 2005).

In other words, both in the Northeast and in middle India the resources were managed as renewable. But in the Northeast the customary law was central to the management of the commons. Focus on the customary law was necessitated also by the fact that around 90% of them practise jhum cultivation which is based on common land. Legal provisions in the region respect this aspect while much of the land legislation in middle India concentrates on individual land and only secondarily on common land (Narwani 2004: 130). Thus, in both the regions the customary law managed tribal sustenance. In middle India it was subordinate to the resource while the Northeastern tribes linked their identity and continuity to it. That is reason enough to add both the customary law and tribal identity attached to it to the vocabulary of the commons.

Legal changes and the commons

Attack on the commons is a major factor in most legal changes that are around land. The most blatant attack came through the Tripura Land Reforms and Land Revenue Act of 1960 and the Manipur Land Reforms and Land Revenue Act of 1960. These laws recognised only individual pattas and turned all commonly owned resources into state property. The Manipur Act could not be imposed on its Naga majority hill areas because of resistance from the tribes who continue to run their affairs according to their customary law (Shimray 2009: 109–111). But the Tripura Act was imposed effectively on the tribes of that state because they were powerless. Very little of their land remains with them because the tribes have been reduced to a minority and the law has been changed to recognise only individual land (Debbarma 2009: 120–121).

Though the traditional system of land ownership has not been abolished among the Khasi, in many cases the power of the darbar has been reduced (Dutta 2002: 2). Moreover, in many villages the members of the darbar use their power to transfer common land to their individual names. That deprives their dependants of their sustenance and also transfers power over the commons from women to men (Ningkinrih 2009: 35–36). At present, the land in the Garo hills is broadly divided into hilly, under the customary law, and the plain land governed by the provisions of the Assam Land and Revenue Regulation Act of 1886, and adopted by the Garo Hills Autonomous District Council in 1952. The former comprises almost 95% of the total land (Phira 1991). The British regime took away the power of the Jaintia syiem to distribute common land, conferred the right of its ownership on the state and converted all the rajhali (private land of the syiem) into government land. The users of the land were made to pay taxes and were given pattas for a limited period of ten years. Thus, the community land in the Jaintia hills was turned into government land and subjected to land revenue (Pyal 2002: 24).

At present terrace fields and the greater part of Angami jhum lands are owned by individuals and so is some area of forests. But a considerable amount of jhum land and forests continue to be owned by the clans, and some more by the village as a whole. While individual ownership of terrace fields is treated as absolute, ownership of jhum fields and forests is usually not absolute because under certain circumstances others have access to such fields and land (D’Souza 2001: 44). Similar changes have been introduced also by other tribes.

By introducing the Rules for Administration of Justice in 1906 and in 1935 the British rulers curbed some powers of the Mizo chief such as judicial, right to give permission for head hunting and protection of criminals. But their power over land and in the social sphere was not touched (Das 1990: 6). The post-independence Government of Assam went beyond the colonial measures, abolished the chieftainship through The Assam Lushai Hills District (Acquisition of Chief’s Rights) Act 1954 (Assam Act XXI of 1954), and brought land under the direct control of the state. At present, there are four categories of land in Mizoram. The first is the district forest over which the state exercises full control. Agricultural operations are prohibited in it. The second type called ‘safety supply reserve forests’ are owned by the district council and are beyond the reach of the village councils and individuals. Agricultural practices are not allowed here too. The third category of forests managed by the village council is for the benefit of the whole village. The villagers are entitled to fuel wood from them for their household needs but not for sale or trade. The fourth category is unclassified forest under the village council. It can be allotted to individuals on patta or garden passes for homestead and cultivation (Mahajan 1991: 81–82).

The land owning pattern of the Arunachal tribes changed with the Balipara Frontier Jhum Land Regulation, 1947 promulgated by the Government of Assam. It gives customary rights to the tribal population over their jhum land, both of the village and of the community provided that they have enjoyed the right to cultivate or utilise it for not less than five years prior to the regulation. The government accepts ownership by the village or clan or individual only in respect of what is under permanent or semi-permanent cultivation or is attached to a dwelling house. All other land including jhum land vests with the state (Nongkynrih 2009: 23–34). Assam had 35 tribal blocks from which land could not be alienated to outsiders. Their number has come down to 25 and the size of the remaining one has been reduced (Shimray 2006: 18).

Privatising the knowledge commons

Colonialism and the dominant class intrusion into their areas were a threat to tribal common land, customary law and identity. With globalisation the threat extends to their traditional knowledge. Basic to it is the World Trade Organisation (GATT Agreement) of 1994, particularly the Trade Related Intellectual Property Rights (TRIPS). At the 1992 Rio de Janeiro United Nations Conference on Environment and Development (UNCED), the rich countries with biotechnology owning companies tried to monopolise biodiversity. That was prevented through the Convention on Biodiversity which acknowledges that tribal and farming communities have preserved biodiversity for centuries but adds that control over it rests with the sovereign state. Thus, it protects biodiversity from the biotechnology owning companies but does not give the communities rights over what they have preserved or over the medicinal and other knowledge that they have developed around it (Rao 1992: 331).

Thus, UNCED was unfair to their communities but it would have been possible to get over it by negotiating benefit-sharing systems with the sovereign state. TRIPS subverts that possibility by putting traditional knowledge in the public domain. None owns it so anyone who wants it can use it with no benefits accruing to their communities (Rao and Guru 2003: 128–132). Like the land laws that turned their sustenance into state property, TRIPS turns tribal knowledge commons into a public asset in order to facilitate its privatisation for profit. What they have developed over centuries can be pirated by the biotechnology owning companies and they have no legal recourse since TRIPS legalises such piracy.

With climate change comes another threat to their forests particularly in Northeast India which is one of the world’s 25 mega-biodiversity zones. Though rarely mentioned in public, suggestions are made every now and then that the region should be turned into a carbon sink to protect Europe from the effects of overuse of synthetic fuel. A carbon sink needs greenery not biodiversity and that can be done by growing commercial forests. The Government of India has even treated it as a clean development mechanism, for example when the Bhadrachalam Paper Mill in Andhra Pradesh grew eucalyptus on common land taken over from the tribes (Fernandes 2009). One does not oppose all commercial species. One only states that imposition of purely commercial species will deprive the people of their sustenance, impoverish them, weaken their link with the forests and turn the region into a biodiversity hotspot.

Conclusion

Tribal communities the world over are governed by some norms in the use of land, forest, water and other resources. Traditional customary practices in their use shaped these ground rules for the sustainable use of the commons. Since these practices had emerged out of specific natural environments, they supported local livelihoods. For example, in Northeast India, most tribes follow shifting cultivation while terrace cultivation of rice is not an exception. In the varied land ownership and management patterns of the tribes of the Northeast one notices an intricate mix of communal and individual land holding patterns. The customary laws played a vital role in maintaining this balance between individual and communal holdings. They also played an important role in ensuring that the resources were treated as renewable. Such management turned the resources, customary laws and the identity attached to them into commons.

However, the management of the commons is conditioned by power relations in an area. That has had an adverse impact on the communities whose sustenance they are. Legal changes overtook the Tripura tribes easily but the tribes of Manipur have been able to resist them. In most tribes the customary law has been interpreted according to the formal law and that has resulted in class formation and stronger patriarchy than in the past. It is, therefore, important to find alternatives that do not romanticise either the past or the present. The value system on which the customary law and resource management are based continue to be relevant even today. One may be able to find a solution to the alienation that most tribes of the region experience by beginning with the value system and rebuilding their commons around it to suit present needs.

References

Agarwal, A.K. 1991. ‘Towards Land Reforms in Arunachal Pradesh’ in Malabika Das Gupta (ed) The Impact of Land Reforms in North East India. Guwahati and New Delhi: Omsons Publications, pp.43–50.

Barooah, Jeuti. 2002. ‘Property and Women’s Inheritance Rights in the Tribal Areas of the Northeast’, in Walter Fernandes and Sanjay Barbora (eds). Changing Women’s Status in India: Focus on the Northeast. Guwahati: North Eastern Social Research Centre, pp. 99–113.

Bhattacharyya, N. N. 1995. Religions of North-Eastern India. New Delhi: Manohar Publications.

Bjarup, Jes. 2005. ‘Social Interaction: the foundation of Customary Law’, in Peter Orebech et al. 2005. The Role of Customary Law in Sustainable Development. Cambridge: Cambridge University Press, pp. 89–157.

Borrows, John. 2002. Recovering Canada: The Resurgence of Indigenous Law. Toronto: University of Toronto.

Buragohain, S. N. 1990. ‘Institutional Factors Affecting Economic Development in the Hill Regions of North-East India’, in Jayanta Sarkar & B. Datta Ray (eds), Social and Political Institutions of the Hill People of North East India. Calcutta: Anthropological Survey of India, pp. 8–14.

Das, J.N. 1990. A Study Of The Land System of Mizoram. Guwahati. The Law Research Institute.

Das, A.R. and A.C. Nath. 1979. The Customary Laws and Practices of the Ao of Nagaland. Guwahati. The Law Research Institute.

Debbarma, Sukhendu. 2009. ‘Refugee Rehabilitation and Land Alienation in Tripura’ in Walter Fernandes and Sanjay Barbora (ed). Land, Peace and Politics: Contest Over Tribal Land in North east India. Guwahati: North Eastern Social Research Centre & IWGIA, pp. 113–127.

Deeny, John and Walter Fernandes. 1992. ‘Tribals: Their Dependence on Forests, Their Traditions and Management Systems’, in Walter Fernandes (ed). National Development and Tribal Deprivation. New Delhi: Indian Social Institute, pp. 49–75.

D’Souza, Alphonsus. 2001. Traditional systems of Forest Conservation in North East India: The Angami Tribe of Nagaland. Guwahati: North Eastern Social Research Centre.

Dutta, Sujit Kumar. 2002. Functioning of Autonomous District Councils in Meghalaya. New Delhi: Akansha Publishing House.

Fernandes, Walter. 2005. ‘Reservations and Social Change: The Case of the Northeast’, in Stephanie Tawa Lama-Rewal (ed). Electoral Reservations, Political Representation and Social Change in India A Comparative Perspective. Delhi: Manohar Book Centre and Centre de Sciences Humaines, pp. 83–104.

Fernandes, Walter. 2009. ‘Climate Justice for the Northeast’, The Assam Tribune, December 6.

Fernandes, Walter and Geeta Menon. 1987. Tribal Women and Forest Economy: Deforestation, Exploitation and Status Change. New Delhi: Indian Social Institute.

Fernandes, Walter, Geeta Menon and Philip Viegas. 1988. Forests, Environment and Tribal Economy: Deforestation, Impoverishment and Marginalisation in Orissa. New Delhi: Indian Social Institute.

Fernandes, Walter and Gita Bharali. 2002. The Socio-Economic Situation of Some Tribes of Bishnupur and Palizi. Guwahati: North Eastern Social Research Centre (mimeo).

Fernandes, Walter and Gita Bharali. 2006. Development-Induced Displacement in Assam 1947–2000: A Quantitative and Qualitative Study of Its Extent and Nature. Guwahati: North Eastern Social Research Centre (mimeo).

Fernandes, Walter, Melville Pereira and Vizalenu Khatso. 2007. Customary Laws in North East India: Impact on Women. New Delhi: National Commission for Women.

Ganguly. J.B. 1978. ‘Socio-Economic Transition of Shifting to Sedantary Cultivation in North East India’ in NEICSSR (ed) Shifting Cultivation in North East India. Shillong. NEICSSR.

Guha, Ramachandra and Madhav Gadgil. 1996. ‘What are Forests For?’ in Walter Fernandes (ed.), Drafting a People’s Forest Bill: The Forest Dweller–Social Activist Alternative. New Delhi: Indian Social Institute, pp. 33–67.

Human Development Report. 2004. Cultural Liberty in today’s Diverse World.

Jodha, N. S. 1986. ‘Common Property Resources and the Rural Poor’, Economic and Political Weekly, Vol. 21, pp. 1169–81.

Kar, Parimal Chandra. 1982. The Garos in Transition. New Delhi: Cosmo Publications.

Krishnan, B. J. 2000. ‘Customary Law’, Seminar, No 492. August, pp. 46–50.

Mahajan, V.S. 1991. ‘Land Distribution in Mizoram’ in Malabika Das Gupta (ed) Op cit. pp. 79–86.

Menon, Ajit and Ananda Vadivelu 2006. ‘Common Property Resources in Different Agro-Climatic Landscapes in India’ in Conservation and Society. Vol (4, n 1). pp. 132–154.

Narwani, G.S. 2004. Tribal Law in India, New Delhi: Rawat Publications.

Nongkynrih, A.K. 2009. ‘Privatization of Communal Land of the Tribes of North East India: A Sociological Viewpoint,’ in Walter Fernandes and Sanjay Barbora (ed). Op. cit. pp. 16–37.

Ostrom, E. 1990. Governing the Commons: The Evolution of Institutions for Collective Action. Cambridge: Cambridge University Press.

Orebech, Peter and Fred Bosselman. 2005. ‘The Linkage between Sustainable Development and Customary Law’, in Peter Orebech et al. op.cit., pp. 12–42.

Pathy, Jagannath. 1988. Ethnic Minorities in the Process of Development. Jaipur: Rawat Publications. Phira, J.M. 1991. U Khasi Mynta Bad Ki Riti Tynrai. Shillong: Government Press of Meghalaya.

Pyal, Gita. 2002. ‘Land system in Jaintia Hills’ in Dr P.M. Passah and Dr S. Sarma (eds) Jaintia Hills: A Meghalaya Tribe–Its Environment, Land and People. New Delhi: Reliance Publishing House. pp. 23–28.

Rajkhowa, Alok Chandra. 1986. The Customary Laws and Practices of the Thadou Kukis of Manipur. Guwahati. The Law Research Institute.

Rao, Sam. 1992. ‘Spinning out of Control: The Earth at UNCED’, Social Action 42 (n. 3, July–September), pp. 328–336.

Rao, M. B. And Manjula Guru. 2003. Understanding TRIPS: Managing Knowledge in Developing Countries. New Delhi: Response Books.

Roy, Tapash Kumar. 1986. The Customary Laws of The Tripuri of Tripura. Guwahati. The Law Research Institute.

Roy Burman, B. K. 1993. ‘Tribal Population: Interface of Historical Ecology and Political Economy’, in Mrinal Miri (ed). Continuity and Change in Tribal Society. Shimla: Indian Institute of Advanced Study. pp. 175–216.

Shakespear, L. W. 1914. History of Upper Assam, Upper Burmah and North-Eastern Frontier. London,: .

Sheleff, Leon. 2000. The Future of Tradition, Customary Law, Common Law and Legal Pluralism. London: Frank Cass Publishers.

Shimray, U. A. 2006. Tribal Land Alienation in North East India: Laws and Land Relations. Guwahati: North Eastern Social Research Centre and Indigenous Women’s Forum of Northeast India.

Shimray, U. A. ‘Land Use System in Manipur Hills: A Case Study of the Tangkhul Naga,’ in Walter Fernandes and Sanjay Barbora (ed). Op cit. Pp. 88–112.

Shylendra, H.S. 2002. ‘Environmental Rehabilitation and Livelihood Impact: Emerging Trends From Ethiopia and Gujarat,’ Economic and Political Weekly. 37 (n 31, July–August 3–9), Pp. 3286–3292.

Singh, R.P. and Ch Sobhabati Devi. 1991. ‘Land Reforms and Economic Development in Manipur Hills’ in Malabika Das Gupta (ed) Op cit. Pp.51–58.

Tamuly, Naba Kumar. 1985. The Customary Laws and Practices of The Angami Nagas of Nagaland. Guwahati: The Law Research Institute.

Endnotes

  1. Dr Walter Fernandes is Director, Dr Gita Bharali is Director of Research and Dr Melvil Pereira is Administrator and Research Associate at North Eastern Social Research Centre, 110 Kharghuli Road (1 tt floor), Guwahati 781004, Assam, India. Tel. (+91–361) 2602819. email: [email protected]; homepage: http://www.creighton.edu/CollaborativeMinistry/NESRC
  2. The Sixth Schedule of the Indian Constitution provides for the creation of Autonomous District Councils (ADCs) in certain tribal areas of North East India. The ADCs have power to make laws over land, forest, water, agriculture, education, health, and social issues. The primary purpose of the Sixth Schedule is to incorporate the predominantly tribal populations, as communities, into the Indian State . For further information on the Sixth Schedule please refer: B. L. Hansaria.1983. The Sixth Schedule to the Constitution of India. A Study. Gauhati: Ashok Publishers.
  3. A tin is around five kilograms.
  4. The Nokma is the husband of the heiress of a group of villages called A.king. He is the village head and custodian of the village land. He plays a leading role in village administration, especially in resolving disputes and allotting the land to individual families for cultivation.
  5. Chief of the traditional state.