Indigenous Agency: Customary Rights and Tribal Protection in Eastern India, 1830–1930

Introduction

The greatest physical impact of globalization today on people and landscape in South Asia is happening in the mountainous parts of Orissa, Chhattisgarh and Jharkhand, in eastern India, which are coincidentally among India’s poorest states.¹ This is because they possess most of the previously untapped reserves of iron, bauxite and water, all crucially contested in the spiralling Asian demand for minerals and metals. The rural population of these heavily forested regions consists mainly of indigenous (adivasi) people, very vulnerable to the processes of modernization and land alienation that accompany the huge pressures for mineral extraction and dam-building. Since the onset of colonization, and especially as the forces of globalization have speeded up, increasingly vigorous contestations for space and resources have taken place between adivasis, peasants, the state, and mining and other commercial companies. The environmental terrain of contemporary eastern Indian states such as Orissa and Jharkhand can be captured in opposed dualities: tribal versus caste Hindus; hill versus plain, mining versus displacement, submergence versus flood control. The history of this polarization lies in the chequered set of developments which existed under colonial rule but rapidly accelerated following independence. More recently, since 1991, as the last pretence of tribal protection has been given up, eastern India has become subject to new kinds of internal and external colonization, far more traumatic in impact than pre-1947 colonization.² The history of globalization and state intervention in the period immediately after independence and since reveals these new and disturbing trends, along with continuities and discontinuities from the earlier period. In this article I document the colonial response to indigenous resistance and the emergence from about the 1830s of a protectionist discourse in relation to tribal areas that put a partial brake on the wholesale exploitation of the tribes and their forested landscapes.

The current revisionist position in history and anthropology has focused on dismantling terms such as ‘tribe’, ‘forest’ and ‘indigenous’, used

Fig. 1.

Eastern India showing the districts of Bihar, in colonial south-western Bengal; Chotanagpur is indicated by hatching.

Map drawn by Bernard Canavan based on an earlier map by the author.

extensively in the past, and this has had a significant negative impact. As notions of ‘indigeneity’ and ‘customary rights’ come under revisionist attack the marginalization and proletarianization of forest-based communities and their traditional livelihoods gain pace all over the world.³ Recently however there has been a reassessment of the significance of customary law among tribal communities, in terms of access to resources and also of how people use it to claim citizenship. Parallels can be drawn between areas as far afield as England, Australia and Indonesia.⁴ As E. P. Thompson noted, in eighteenth-century Britain ‘custom’ was invoked to legitimate almost any usage, practice or demanded right.⁵ In a new collection, edited by Nandini Sundar and including work by sociologists, anthropologists and lawyers, the idea of custom as enshrined in colonial law makes a comeback. It is noted that while Indian courts are currently far from the judicial revolution heralded in Australia by the landmark Mabo judgement of 1992, they nevertheless recognize custom provided it is established as such by clear and unambiguous evidence.⁶ Whilst rightly challenging the static understandings of custom, Sundar points out that ‘custom deserves serious reconsideration as a discursive product of engagement between local communities and forging visions of the future in the name of the past and the spaces the state allows for pockets of exceptionalism’.⁷ It has also been argued recently that customary law may help to overcome the so-called ‘tragedy of the commons’ – the theory that open access to common property may lead to over-exploitation by self-interested individuals. Customary law systems in contrast are mostly concerned with (limited) common rather than public property.⁸ Historically grounded understandings of the conflict over customary rights and understanding customary law in the colonial context thus become crucially important.

Colonial Narratives of Tribe, Landscape and Customary Rights

This article attempts to understand the colonial narratives...