Legal Status of the Indigenous Peoples in Taiwan
Department of Public Administration
In the political life of Taiwan, it is generally agreed that the population of Taiwan is made up of four relevant major ethnic groups, Indigenous peoples (原住民族 ), Mainlanders (外省人), Hakkas (客家人), and Holos (鶴佬人 ). While the former is of Malayo-Polynesian stock, the latter three are descendants of those Han refugee-migrant-settlers of Mongolian race who sailed from China as early as 400 years ago. Although there might be eleven patterns of ethnic interactions theoretically, ethnic cleavages are to be found in three dyads of relations: Indigenous peoples vs. Hans (漢人 , including Mainlanders, Hakkas, and Holos), Mainlanders vs. Natives (本省人, including Indigenous peoples, Hakkas, and Holos), and Hakkas vs. Holos.
With its sheer population of 350,805 constituting merely 1.7% of the total population of 20,393,080 as reported in the 1990 census, the Indigenous peoples are largely ignored by both the elites and the masses of the Han settler society. As the mainstream understanding of Western liberal democracy in Taiwan is vulgarly and narrowly confined to electoral democracy, the principle of majority-rule carries the day without much due respect for the minority. It is therefore not surprising to discover that the notion of indigenous rights earnestly articulated in the Fourth World and carefully tackled in the West is hold in contempt, if not ridiculed, by the ethnocentric Han public opinion. Accordingly, indigenous issues have in the main been neglected and placed a low priority and no resolute efforts have thus far been made to redress the injustice incurred to Indigenous peoples.
After the war, the Nationalist (Kuomintang Party, or KMT) government by and large followed its predecessors' practices. While exploration, conquest, pacification, and at times segregation, containment, or relocation had formerly alternated with one another, now subjugation, patronization, and intolerance have been clothed in the forms of political co-optation, economic domination, forced or induced cultural assimilation, social prejudice, and welfare tokenism under the prevailing standards of integrationist orientation. It is not an exaggeration to state that there have been numerous administrative measures yet without formal Indigenous policy so far.
Thanks to the rise of social movements in the 1980s, the wretched fate of Indigenous peoples began to draw special attention from the media. Nonetheless, the popular perception of Indigenous peoples is invariably in one form or another of social pathology in need of social relief at best, or to be condemned to their own miserable destiny resulting from genetic defects at worst. It was not until the mid-1990s when the ruling KMT failed to win a stable majority in the Third Legislative Election (1995), that the government was forced to consider those manifold appeals of the Indigenous movement more seriously. To demonstrate their willingness to compromise, a Commission of Indigenous Peoples was finally created by the central government in 1996.
In retrospection, the basic tactic of the Pan-Indigenous movement has been to strike a balance between staging non-violent protests at streets with selected topics from time to time, and maneuvering various coalitions with major political forces if necessary. Political outputs of Indigenous struggle over a list of the collective rights to which they are entitled are formally recorded at three interconnected legal arenas: constitutional, legislative, and administrative ones. It should be noted that judicial instruments generally found in the Anglo-Saxon tradition of customary laws have not been espoused here, such as the Mabo v. Queensland case in Australia, the Treaty of Waitangi and The Waitangi Tribunal in New Zealand, or the Indian Treaties in Canada.
In the following sections, while enunciating what responses have been rendered by the government so far, we will sketch the challenges of Indigenous peoples against the Han state in pursuing their collective rights generally, and the rights to identify as indigenous, to self-identification, and to self-determination particularly. Before our discussions, a brief outline of the history of Taiwan is in order.
When Portuguese sailors "discover" Taiwan and hailed it Ilha Formosa in alas in 1544, Indigenous peoples had resided here for millenniums. The Dutch and the Spanish (driven out by the Dutch) briefly occupied a pocket of land in southern and northern Taiwan separately before the Chinese Ming Dynasty loyalist Koxinga ( 國姓爺) expelled the Dutch in 1662, established a restorative kingdom, and recruited Han settlers to cultivate the land. Taiwan was annexed by the Chinese Ching Dynasty in 1683 and subsequently ceded to Japan in 1895. After World War II, Taiwan was given up to the Republic of China, whose Nationalist government, having been defeated by the Communist Chinese, took refugee in Taiwan in 1949 and has reigned over the island ever since.
Right to Identify as Indigenous Peoples
The group name is to a large degree decided by the dominant group, who, by definition, commands state apparatus and wields political power. During the Ching Dynasty, Indigenous peoples were expeditiously assorted into Sek-hoans (熟番 ) and Chinn-hoans (生番 ), each signifying civilized and uncivilized barbarians since for the Han Chinese, all other peoples are nothing but barbarians, literally Hoan (番). In expectation to woo barbarian peoples (蕃人 ) against its majority Han subjects, the Japanese colonial authority coined a fantastic name Gosua tribes (高砂族 ) for the former and Pepo tribes (平埔族 ), meaning plain tribe, for the latter.
At first glance, "ethnic group" ( 族群), a relatively novel concept borrowed from the West, is omitted in the original text of the Constitution of the Republic of China, promulgated in mainland China in 1947, let alone any mention of indigenous or aboriginal peoples. Nevertheless, Article 5 decrees nominally that all "nationalities" (民族 ) are equal, and Article7 states that all "individuals" are equal regardless their "races." (種族) Furthermore, Articles 168 and 169 also specify particularly that the status and the development of "frontier nationalities" (邊疆民族 ) ought to be protected and promoted, and thereby accord Indigenous peoples the status of frontier nationalities, read as "national minorities" ( 少數民族) or "ethnic minorities" ( 少數族群) in the Western tradition.
It is noted that Indigenous peoples are not ethnic minorities or frontier nationalities per se although they are not mutually exclusive. Nor are they completely coextensive synonyms.
Up to the mid-1990s, Indigenous peoples had been briefly termed as Gausun tribes (高山族 ), meaning "tribal people in high mountains," and subsequently as Sundee-tongbaus (山地同胞), suggesting "those compatriots in mountain areas," According to whether they reside either in the mountain-hill or plain areas, most tribes had arbitrarily been classified into Sundee-sunbaus (山地山胞 ) and Pingdee-sunbaus (平地山胞 ). However, since neither all Sundee-sanbaus reside in the officially designated 30 Sundee (山地 , mountain-area) townships nor all Pingdee-sunbaus live at the plain townships, this residential demarcation is no less senseless than earlier practices based on degrees of acculturation. While Sundee-sunbaus is curiously redundant, Pingdee-sunbaus is oxymoron since the term Sunbaus (山胞) is the abbreviation for Sundee-tongbaus. Politically, this classificatory scheme had helped creating cleavages among Indigenous peoples.
As the group name Sunbaus had in the past been stigmatized with loaded negative images, leaders of the Pan-Indigenous movement firstly laid claim to the identity of being "the Indigenous peoples of Taiwan" in order to forge their common group identity from different tribal identities. In their hope to secure legitimacy as the genuine owners of the land, they proposed the name Yuanchu-mingchu (原住民族 ): while Yuanchu signifies the original residents, mingchu emphasizes the meaning of peoples (in the plural) in place of tribes ( 族).
In the beginning, this appeal met with some bitter opposition from a few anthropologists who protested that those peoples were not truly the first inhabitants of Taiwan judging from both fossil evidences and pre-historical artifacts. Furthermore, since the Han Chinese consider themselves the natives of China proper, any attempt to accord them the status of being indigenous is considered by Chinese irredentists as an act of separatism. The term Sian-chuming (先住民 ), denoting "earlier residents," was offered instead, which illustrates their ignorance of the universally accepted practice that indigenous people are those who had resided in their homeland for some time long before settlers arrived.
Moreover, the second half of the term mingchu was bitterly assaulted from both the Chinese irredentist and the Taiwanese separatist fronts. Since mingchu also stands for political nation in addition to the loose usage of people, staunch proponents from both camps disputed that the conception of multiple nations is not compatible with the idea of nation-state in the existing Republic of China or the future Republic of Taiwan. For the former, the Sunbaus are nothing but one branch of the grandeur family tree of the Chinese nation ( 中華民族, Chonghua-mingchu), which includes the Hans, Manchus, Mongolians, Muslims, Tibetans, and others; and the latter seem reluctant to permit any implied heterogeneity within a Taiwanese nation in the making. Apparently both misconstrue the concept of nation.
By way of compromise, the dispute was eventually resolved in 1994, when the National Assembly passed the Third Amendment of the Constitution: the term Yuanchu-ming ( 原住民, indigenous residents) first appears in Articles 1 and 9 instead of the heretofore much resented Sunbaus. Still, it demonstrates that the majority of Han legislators have an aversion to the preferred group name Yuanchu-mingchu (indigenous people). In the end, the formally designated title for administrations charged with indigenous affairs at all levels was dictated to take Yuanchu-ming. Nonetheless, the term Yuanchu-mingchu was later smuggled in the revised Ordinance of Naming (1995) and the Organizational Order for the Commission of Indigenous Peoples (1996), and hidden in Article 10 of the Fourth Amendment of the Constitution (1997) as the expression of Mingchu (people).
Meanwhile, an unnoticeable Executive Order for Traditional Name Resumption or Correction issued by the Department of Interior Affairs in 1995 overtly carries Yuanchu-mingchu in its formal designation. The Educational Act for Indigenous Peoples promulgated in 1997 also employs Yuanchu-mingchu more confidently.
Nonetheless, it is interesting to note the endeavor to downplay any separatist implications in this context. Different prefixes have been added before Yuanchu-mingchu in various laws. A vague "Free Area" (meaning Taiwan), for instance, is superimposed in Articles 1 and 4 of the Fourth Amendment of the Constitution (1997). And "Taiwan Area" is similarly added in the Statute for Promoting Indigenous Students (1995) issued by the Department of Education. A blunt "Taiwan" is affixed in the revised Ordinance of Naming (1995) and in the Executive Order for Traditional Name Resumption or Correction (1995).
Right to Self-Identification
Until now, to be qualified as an indigene, one needs to prove oneself or one's paternal (or at times, maternal) lineage was registered as tribal peoples in the residential records during the Japanese rule. While refusing such a subjective notion of self-identification as enshrined in the ILO Convention No. 169 (1989), this institutionalized racial definition in the tradition of jus sanguinis also implicitly carries an assimilationist connotation. Particularly, Pepo tribes ceased to be recognized by the government after the war given the reason that they have almost been completely assimilated by the Hans and lost their cultural attributes.
As is well known, except for the latecomer Mainlanders, the other Han descendents (both Hakkas and Holos) are racially Creole with various degrees of Pepo elements from ones' maternal lineage. It is not until recently that some Pepos began to claim their indigenous identity and to restore their cultural practices, especially festivals. Although most leaders of the Pan-Indigenous movement have thus far embraced the Pepos to join their united front, some have ambivalent reservations concerning whether these half-brothers would dilute the purity of their aspiration. It appears that the government is ready to recognize Pepos as indigenes only if they are able to provide some solid proofs from aged residential files documented half a century ago.
An unheard, yet by no means insignificant, appeal of Indigenous peoples is to Romanize their tribal names phonetically rather than to retain the designations assigned to them by the Han government since 1940s. For one thing, Han characters frequently fail to represent the phonation adequately. Atayal, for example, is pronounced as Taiya ( 泰雅) and Amis as Amay ( 阿美).
In addition, since Han ideographic characters would contain connotations or/and denotations, the officially sanctioned tribal names are inescapably filled with misperceptions or misunderstanding resulting from their literal readings. For instance, Puyuma, officially listed as 卑南 and pronounced as Benan, would imply "humbly south." The same embarrassment also incurs the Bununs, who are hunters by origin and yet perceived as weaver-and-farmer suggested unintentionally by Bunong (布農 ).
Thirdly, some tribes are demanding that their group names in Han characters be changed. For instance, some Tao ( 達悟) elites have sought not to be recognized as Yamei (雅美, meaning graceful and beautiful) in the 1990s. The Amis are said to prefer Bancha as their group name. Recently, the Tsous have successfully replaced their authorized group name曹 with 鄒, pronounced similarly in Holo and Mandarin and yet disparate in the official language, that is, Mandarin. .
Controversy arises when the Torokos ( 德魯固), hitherto classified as Atayals, claim that they possess a unique group identity and insist that they be categorized separately. The nearly extinct Saus (邵 ) have met a similar fate. However, the government appears disinclined to comply by enunciating genotypical as well linguistic similarities between them. Although not documented in any laws, the official policy seems adamant that there are only nine tribes of Indigenous peoples. It again reflects the government's tendency to take an objective definition of group identity.
On the other hand, the quest for reverting to one's traditional name from imposed Han name, which had been in force since 1946, met little confrontation from the state or the society. Both the revised Ordinance of Naming (1995) and the following Executive Order for Traditional Name Resumption or Correction (1995) sufficiently express the government is willing to com to terms with Indigenous peoples' demand as along as they do not jeopardize the fundamental structure of the asymmetric Han-Indigenous relations.
Paradoxically, few indigenes have applied for the name reversion. Except for administrative considerations, probable explanations are loss of tradition as a result of acculturation, fear for easy identification as target of discrimination, or, what is worse, habituation to the dominant Han culture. It proves that any legal measures without accompanied positive incentives provided by the government are doomed to failure.
The quest for recognition as Indigenous peoples are justifiable. As more and more peoples are undergoing their social construction of indigenous identity, effective measures must be found to accommodate these demands.
Right to Self-determination
The right to self-determination, most fundamental among the collective rights of indigenous peoples, has been less disseminated and thus met scanty academic discourse or popular opposition. With its broad political implications, it is expected that this appeal will produce considerable controversy and will not be considered in any kind once formally requested by Indigenous peoples. However, since Taiwan was not a terra nullius when colonists arrived nor have Indigenous peoples renounced their sovereignty, they do have the right to self-determination, whatever their favored ways to accomplish it are.
Various forms of political arrangement to materialize the right have been envisaged by Indigenous peoples, ranging from American-styled reservations, Chinese-fashioned autonomous regions, to outright irredentism with any illusionary Pan-Malay-Polynesian associations. The most seemingly feasible one is to transform the present indigenous townships into some form of autonomous regions. A draft Bill of Local Self-rule, proposed by Legislator Huang Herh-hsuan et al. In 1998, does attempt to incorporate the notion of self-rule regions as suggested by indigenous activists. In the end, the final version of the Local System Law (1999) fails to contain any such clauses.
With its unitary tradition and lack of experience in decentralization, the Han elites must have difficulty in envisioning such a compromise. Furthermore, for fear of territorial fragmentation in case some Indigenous peoples choose secessionism, the idea of establishing some autonomous regions has not been well received. Although the concern of the state to preserve its territorial integrity is legitimate, the right of Indigenous peoples to self-determination can not be summarily denied.
As is already called to question, this envisaged administrative arrangement might only constitute nominal change since the heads of these townships have long been restricted to indigenes. Therefore, at issue would be how much power will be devolved to these autonomous regions. In addition, taking a tutelary perspective, some doubt whether Indigenous peoples are sophisticated, if not advanced, enough to rule themselves. Naturally, a conceivable but not necessarily reasonable concern is how to secure water resources, forest conservatories, and national parks, mainly located in these regions. Last but not the least, as more and more indigenes are moving to urban areas and scattering around the country, territorial arrangements would be regretfully incomplete.
Recurrently constrained by the preoccupation with administrative expedience, the government has so far decided the possibility to accord only the Taos, whose homeland is the offshore island Lanyu, certain degrees of self-rule over their internal affairs in some forms of autonomous region employed in China. Legislator Pa Yen Ta Lu has also recently suggested that some indigenous townships can be consolidated into autonomous counties.
A pragmatic strategy in the interim to evade harsh counteraction or obstruction is to forge a commission for each Indigenous people. At the heart of this non-territorial design is what is currently being practiced in parts of Belgium as corporate federation, where ethnic groups with scattered membership would have a cultural commission to run their own cultural, linguistic, educational, or religious matters. In the long term, both territorial and non-territorial arrangements may coexist. For now, a reformulation of the present Commission of Indigenous Peoples bestowed with greater amount of executive power is realizable.
Ideally, each Indigenous people will have its own Commission and enjoy certain amount of self-governing capacity. At the national level, these Commissions would send equal number of representatives to the Commission of Indigenous Peoples in a confederate fashion to deal with the central government in a nation-to-nation manner. The election of those Commissioners at the tribal level is not inconceivable since Indigenes peoples have until now selected their own members of the quasi-bicameral parliament in a corporate way. In reality, Sundee and Pingdee Indigenous peoples constitute two separate constituencies and each is allocated four seats in both the National Legislature and the National Assembly, which is also known as single-nontransferable-vote (SNTV).
Fiscal endowments come into question as Indigenous peoples are repeatedly suspected whether they are in any position to sustain themselves economically. Aside from fiscal centralization embedded in the current central-local relationships desperately in need of adjustments, franchise fees or permit fares, for instance, may be levied on the use of natural resources or national parks. To the bottom, the issue of land rights must open to dialogues leading to just restitution in either monetary or other terms of reparation for lands lost or confiscated without consent.
Replicating Articles 168 and 169 of the Constitution , both the Second and the Third Amendments of the Constitution (1992, 1994) provide that the state ought to ensure the status and political participation of Indigenous peoples and to promote their education, culture, welfare, and economy. However, the well-intended goal is to offer paternalistically humanistic protection, guidance, and support to minorities, rather than reparations to indigenous peoples for the past injustice. As the number of guest workers is exceeding that of Indigenous peoples, the revised Employment and Service Law (1997) and the recently revised Governmental Procurement Law (1998) prescribe that measures must be taken to recruit a reasonably adequate number of indigenous employees. Although preferential treatments in higher education have been provided for years, no schools designed primarily for and by indigenes have been yet created as called for.
In the meantime, Article 10 Clause 10 of the Fourth Amendment of the Constitution (1997) prefixes "based on [Indigenous] peoples' willingness," and is thus optimistically interpreted as the clause for indigenous group rights (民族條款). An Educational Act for Indigenous Peoples was thereafter developed in 1998. A Developmental Law for Indigenous Peoples, which is a comeback of the stalled Basic Law for the Protection of Taiwanese Indigenous Peoples drafted by Legislator Tsai Chong-han et al. in 1991, is currently under scrutiny by the Commission of Indigenous Peoples. Apparently, the ambitious bill is reflecting attempts to echo the United Nations Draft Declaration on the Rights of Indigenous Peoples (1995) in a comprehensive fashion.
The Hans seem determined to maintain their political, economic, cultural, and social domination as President Lee Teng-Hui's recent appeal Indigenous peoples that they ought to integrate themselves with the mainstream society has demonstrated. Without a bill of rights in any format, an anti-discrimination constitutional or at least legislative provision transposing international norms is at least warranted. Although a signatory of the ILO Convention No. 107 (1957), the government has yet to rectify its integrationist orientation that the ILO Convention No. 169 (1989) is to remove.
On balance, existing mechanisms and standards to deal with the protection of ethnic minorities in general and with guarantee the rights of Indigenous peoples in particular are scanty in the context of the protection of individual human rights sanctioned under traditional liberalism. What is further required is some norms and commitment to ensure group rights of Indigenous peoples. Ingenious political procedures and institutions may be explored.
Politically, the voting power Indigenous legislators can hardly put forward any major bills without sympathetic support from Han legislators, except at rare occasions as happened at the Third Legislature (1996-98), although quotas have been set for Indigenous peoples in the National Legislature (and in the National Assembly). Unfortunately, the mainstream assessment tends to deem the quotas are already over-representative for the population of Indigenous peoples although some indigenous activists have proposed that each tribe be assigned at least one seat since all tribes are equally unique and thus in need of their own representatives. More ominously, as the ruling KMT has won an impermeable majority in the Fourth Legislative Election in 1998, it is doubtful whether any space may be created where any benevolent deals will be reached.
By any means, there is no way Indigenous peoples may exercise minority veto as performed in consociational democracy. To be sure, nonetheless, the legitimacy of the state is always precarious before any nation-to-nation treaty is negotiated between the Hans and Indigenous peoples after genuine dialogues have been ceaselessly undertaken.
Immediately underlying the Han-Indigenous polemics is not whether the government recognizes group rights of Indigenous peoples but rather whether the chauvinistic Hans are ready to receive Indigenous peoples as human beings. If the Hans are not willing to reconcile themselves with Indigenous peoples, it is equally unimaginable that the cleavages among the three Han ethnic groups will be sufficiently resolved. Much less is it possible that there will be any true reconciliation between China and Taiwan.
Ultimately, the Han culture has largely defined norms, enforced laws, and design institutions without taking indigenous culture into account. As members of an adolescent society still in the making, the Hans still have the opportunity to redeem themselves form the original sin. Legal guaranty of indigenous rights can not promise mental desegregation, unless multiculturalism replaces monoculturalism in this Han dominated society. In the end, Taiwan is not a Han-Chinese society with marginal non-Han Indigenes, but rather one with coequal Indigenous peoples and non-indigenous Hand.
*Ph.D. in political science with a specialty in ethnic politics from the Ohio State University in 1991; self-identified as Holo with maternal Hakka and probably Makato-Siraya Pepo descent. For correspondence: P.O. Box 26-447, Taipei 106, TAIWAN; tel: 886-2-2706-0962; fax: 886-2-2707-7965; e-mail: email@example.com; homepage: http://mail.tku.edu.tw/default2.html .
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