1

WILD AT HEART LEGAL DEFENSE ASSOCIATION

Understanding Taiwan’s Indigenous Laws

A Brief Inquiry

Joas Platteeuw

2016

i

Abstract

Different articles explain the emergence of legal safeguards for Taiwan‘s indigenous peoples,

and how the promulgation of indigenous laws can be understood from a political point of

view. This article builds on these previous writings, while simultaneously scrutinizing

indigenous laws from a legal pluralist perspective. In so doing, academic articles,

newspapers, and policy documents used as sources.

The article indicates that there have been a number of legal changes, indicating an

accelerated dedication to the cause of Taiwan‘s indigenous peoples after the democratic

transition. It becomes clear that cross-strait relations, international legitimacy, and national

political dynamics all play an important role in the promulgation of indigenous laws within

Taiwan‘s legal framework. At the same time, a legal pluralist point of view indicates the

importance of indigenous customary law, as national laws prohibiting practices such as

hunting have not managed to completely eradicate indigenous practices. In fact, in some

cases indigenous customary law creates a certain leniency in the national Taiwanese legal

framework. However, when more fundamental issues such as autonomy are touched upon,

either indigenous peoples do not have the political means to have these claims honored, or

customary law is incompatible with Taiwan‘s national legal framework to such an extent, that

ultimately force decides.

Key words: Indigenous, Customary Law, Legal Pluralism, Taiwan.

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Content 1. Introduction ............................................................................................................................ 1

2. Legal safeguards for indigenous peoples by the Taiwanese government .............................. 2

2.1 Development of legal safeguards after Taiwan‘s democratization .................................. 2

2.2 The national and International dimension of local legal safeguards................................ 7

3. Taiwan‘s indigenous legal plurality ....................................................................................... 9

3.1 Indigenous laws in the national legal apparatus .............................................................. 9

3.2 Indigenous rights from a legal pluralistic perspective ................................................... 11

4. Conclusion ........................................................................................................................... 14

Literature. ................................................................................................................................. 16

The views expressed in this document are the author‘s, and do not necessarily reflect the position of

the Wild at Heart Legal Defense Association.

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1. Introduction

When thinking of Taiwanese indigenous peoples, legal safeguards and the politics thereof is

perhaps not something that will first come to mind. The legal changes, however, are possibly

the most important tools indigenous peoples have to securing their rights. In the context of

Taiwan‘s recent democratization, the current legal status of Taiwan‘s indigenous peoples is

referred to as a state of ‗transitional justice‘ (Kuan, 2010), making it a specifically interesting

case to examine. Also, the disputed international status of Taiwan, its relation to the United

Nations (UN), and how this reflects on national legal safeguards for indigenous peoples, are

interesting to more closely analyze.

This article starts with a summary of several legal changes and important turning

points for indigenous people, starting roughly from the period of Taiwan‘s democratic

transition. The article then moves on to examine how the political changes have been

impacted by international and national political dimensions of indigenous issues. A next

section explores how the status of indigenous issues can be understood from a legal

pluralistic perspective. The article ends with a conclusion of the main points and central

argument.

An important consideration is that of terminology. Throughout this paper, the term

‗indigenous‘ will be used as opposed to ‗aboriginal‘ or any other descriptive form. This

consideration is two-fold. On the one hand, ‗indigenous‘ is officially used by the Taiwanese

government, and also widely used in the international debate. On the other hand, ‗indigenous‘

is derived from inter alia, meaning ―a situation where a people can demonstrate historical

precedence over subsequent settler communities (Allen, 2005: 173). Aboriginal can be traced

back to ab origine, ―from the beginning‖, relating to the original inhabitation of an area (Ibid:

173). That Taiwan‘s indigenous tribes were not Taiwan‘s first inhabitants is broadly

accepted1, and it is thus more applicable to use the term ‗indigenous‘. That also allows for the

argument that Hakka an Hokkien inhabitants of Taiwan are also indigenous, as they resided

in Taiwan before the arrival of the KMT in 1949. Even though it makes an interesting

discussion, it is not the aim of this article, and will therefore be put aside for now. Also, in

explaining the legal safeguards, the discussion about the ‗rightness‘ or ‗wrongness‘ of a law

is not one that will be held here. Section two is a mere compilation of important legal changes

within the Taiwanese governments‘ legal framework, without arguing for the justice or

injustice that stems from these legal thresholds.

A limitation to this article is the exclusive use of English sources. Because of

language limitations, no Chinese sources have been used for this article. Last, this article is a

literature review, and no empirical research was carried out in any stage. Its principle aim is

to understand the emergence of legal thresholds for indigenous peoples, also in order to

reflect on how this can be understood from a legal pluralistic point of view.

1 Both archeological evidence, and Taiwan‘s indigenous peoples own accounts (Allen, 2005: 173) confirm this.

For example, the founding legend of the Saisiyat people tells of ―how they drove out the original inhabitants

after their arrival on Taiwan‖, and that the Saisiyat celebrate this event (Ibid: 173).

2

2. Legal safeguards for indigenous peoples by the Taiwanese

government

Before elaborating upon the legal changes, it is important to introduce why this topic is of

such importance for indigenous peoples. Looking at the current lay of the land, it is clear that

indigenous peoples have recurrent disputes with the Taiwanese government or market actors,

be it land grabbing2 (Chi, 2001), environmental pollution (Fan, 2006; Fan, 2009),

environmental rights34

, or labor-exploitation (Lee & Williams, 2014). Whereas in the 17th

century Taiwan‘s indigenous peoples still accounted for 80% of the population, they

currently constitute about 2% (Kuan, 2010, p. 4). Having become a minority over the

centuries, the importance of legal safeguards becomes paramount. Especially so in

combination with Taiwan‘s recent democratization, as one of the great pitfalls of

democratization is particularly the tyranny of the majority. It is this tyranny of the majority

that legal safeguards can be argued to negate. In other words, for Taiwanese indigenous

peoples, who have become a minority in today‘s society, legal safeguards are important to

prevent, or counter, possible oppression by majoritarian rule.

2.1 Development of legal safeguards after Taiwan’s democratization

In order to look at the development of legal safeguards after Taiwan‘s democratization, one

needs to pinpoint from what point Taiwan can be considered a democracy. When precisely

this ‗democratic miracle‘ happened is hard to identify, as the process happened evolutionary

rather than revolutionary. For the purpose of writing the lifting of the 1987 martial law will

be considered as the turning point. Several considerable legal changes have taken place for

Taiwan‘s indigenous peoples afterwards. In 1991, for example, six seats in the Legislative

Yuan – Taiwan‘s Legislative body – were secured for Taiwan‘s mountain indigenous

peoples5 (Simon, 2012: 10). Further, in 1992 the second amendment to the constitution

provides that the state ought to ensure the status and political participation of indigenous

peoples (Shih, 1999: 193-206). In the two decades since then, more crucial legal changes

have taken place, which are summarized using the chronological oversight in figure one.

The constitutional name change from ‘Mountain Compatriot’ to ‘Indigenous

Person’ in 1994 signified not so much any real changes at that time, but much more a moral

victory. The KMT‘s classification of mountain compatriot (also used by the Japanese from

1895 to 1945) was regarded as derogatory, and also argued to have caused diverse forms of

discrimination (Kuan, 2010: 6). The term further constitutes a refusal to acknowledge

indigenous peoples, a tactic that prepared the way for assimilation policies (Allen, 2005:

176). Changing this classification to ‗Indigenous person‘, then, is not only a moral victory as

2 See also the Taroko (Truku) land rights dispute < http://en.wildatheart.org.tw/story/109/7268> accessed April

18th

, 2016. 3 Specifically prominent is the recent prosecution of Tama Talu (Bunun tribe) who went hunting

<http://www.taipeitimes.com/News/feat/archives/2016/01/26/2003638073> accessed April 18th

, 2016. 4 Indigenous peoples were forbidden to use water from their ancestral land, as it was not a national park <

http://www.taipeitimes.com/News/local/print/2001/02/15/73764> accessed April 18th

, 2016. 5 Despite the name change of indigenous peoples in 1994, the term ‗Mountain indigenous person‘ is used here to

reflect the legislative change of 1991 accurately.

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it acknowledges indigenous people, it also lays the basis for an altogether different stance

towards indigenous peoples.

This altogether different stance was further expressed with the establishment of the

Council of Indigenous Peoples (CIP) in 1996. This ministerial level body of the central

government had been lobbied for since the initiation of the indigenous movement. Its main

aim is to promote and implement laws and regulations with the aim of enhancing Indigenous

rights (Allen, 2005: 161). The CIP is a key institution within the Taiwanese legal apparatus

for anything that concerns indigenous issues. Both in the drafting of laws and the

implementation thereof the CIP plays a role. The CIP‘s official action plan is ambitious, and

ranges from drawing up relevant sub laws under the Indigenous Peoples Basic Law (IPBL,

addressed later in this section), to carrying out legislative work for the enactment of

indigenous autonomy laws6.

In terms of education, an important law promulgated by the CIP is the 1998

Education Act for Indigenous Peoples. This Act covers areas ranging from school

education, curriculum, and social education to research and evaluations (Chen, 2011).

Section two, for example, states that active assistance to Indigenous peoples must be given by

every department of the government, and the government should ensure equal educational

opportunities for Indigenous peoples (Ibid). Further, school curricula and textbooks are

required to employ multicultural perspectives and include the ethnic historical cultures of

Indigenous peoples, as well as their sense of values (Ibid). This bill is further important as it

is the first bill that specifically addresses indigenous issues since the passing of the

constitutional revisions of 1994 (Blundell, 2005: 57).

Further, and even though not being a law, then presidential candidate of the

Democratic Progressive Party (DPP) Chen Shui Ban signed the important New Partnership

Treaty in 1999. On the verge of Taiwan‘s first democratic transition of governmental power,

the New Partnership Treaty were political promises which would serve the basis for

indigenous policy – and specifically for the Indigenous Peoples Basic Act – and meant an

altogether new political stance towards Indigenous peoples. This political treaty included

seven articles, and promised that the government would (1) recognize indigenous peoples‘

inherent sovereignty; (2) promote indigenous self-governance; (3) sign a land treaty with

indigenous peoples; (4) recognize the traditional names of indigenous settlements, mountains

and rivers; (5) recognize indigenous peoples and settlements and the lands of their traditional

territories; (6) recognize indigenous people‘s use of traditional natural resources, promote

indigenous peoples‘ autonomous development; (7) and make sure each of the indigenous

peoples has their representatives in congress (Kuan, 2010: 9). As we will see later, some of

these political promises have not been fulfilled, but this document laid the basis for many

other indigenous policies.

6 Source: Council of Indigenous Peoples

<http://www.apc.gov.tw/portal/docDetail.html?CID=A7BB7010027E1F65&DID=3E651750B40064677EA2E3

EBE066F891>

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5

A consequence which directly stems from the creation of the CIP is the passing of

Additional Articles of the Constitution in 2000. Article 10 is specifically prominent, as it

provides that the State affirms cultural pluralism and shall actively preserve and foster the

development of Indigenous peoples‘ languages and cultures (Allen, 2005: 181). Further, it

explains that,

―the State shall, in accordance with the will of the ethnic groups, safeguard the status

and political participation of Indigenous peoples. The State shall also guarantee and

provide assistance and encouragement for Indigenous peoples’ education, culture,

transportation, water conservation, health and medical care, economic activity, land,

and social welfare, measures for which shall be established by law” (Ibid: 181).

Not only did this indicate a different stance towards Indigenous peoples, it further highlights

that Indigenous issues were brought to the mainstream political agenda.

With the introduction of the Indigenous Peoples Employment Rights Protection

Act in 2001, the scope of legal safeguards with regards to indigenous peoples broadened.

This law, enacted to address comparatively high unemployment levels in indigenous

communities, stipulates that at least 1 out of every 100 employees of the workforce of

government agencies, public schools, and state-owned enterprises is to be indigenous7. Also,

one third of the employees of an organizations located within an indigenous region are to be

indigenous8.

With the 2003 Name Act, Indigenous peoples could register their indigenous names

(in Chinese characters) and to annotate them in Romanized script (Stidsen, 2007: 308). At

first this may occur as a minor change, but this can be seen as a clear example of the

indigenous renaissance that has been argued to take place. In contrast with earlier tradition of

colonial powers to force indigenous peoples to change their name to the colonial language,

this act allows for a reversal to their indigenous names.

In 2005, two important legal changes took place for the Indigenous peoples‘

movement. One is the passing of Constitutional Amendments. The constitutional

amendments were the outcome of a tedious legislative process, which very much related to

the earlier mentioned New Partnership Treaty. The DPP proposed constitutional revisions in

2004, and because of pressure of indigenous social movements, an ongoing dialogue with

indigenous activists, and earlier made political promises, indigenous rights were incorporated

(Simon, 2007: 234). The proposed constitutional amendments‘ indigenous clauses contained

several aspects. First, the constitution was to explicitly recognize the natural rights of

indigenous people and their desire for self-determination, with autonomy for each tribe

(Ibid:234). This autonomy would entail ―traditional lands, economic development, language,

traditional knowledge, customary law, and other expression of collective cultural rights‖

(Ibid:234). There is no doubt that these proposed constitutional amendments gave great

7 Source: Taiwan Today < http://www.taiwantoday.tw/ct.asp?xItem=226116&ctNode=2191>

8 Ibid.

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expectations to indigenous peoples, activists, and all other interested parties. There is also no

doubt their disappointment was great when they saw indigenous issues were not on the

agenda when constitutional revisions were passed in 2005 (Simon, 2007, p. 235). The 2005

constitutional amendments were thus not so much important because they brought change,

but rather the absence of change is what made these constitutional amendments important.

A crucial legal development in the history of indigenous peoples is the Indigenous

Peoples Basic Law Act. This act was passed in 2005 too, and proclaims the ROC‘s

commitment to creating a ―comprehensive set of Indigenous rights, including rights to

autonomy, land, intellectual property, development, languages, education and employment‖

(Allen, 2005: 182). Important here is the commitment to creating these safeguard. This

change constitutes an important psychological achievement, while further legislative action is

required to fully implement these ―vague statements supported by promises of specific

legislation to be introduced in the future‖ (Ibid: 182). To do so, February 2008 was set as

deadline to promulgate this legislation, and to amend laws conflicting with the IPBL

(Wessendorf, 2009: 76). The deadline was not met, and the full incorporation of the IPBL

still awaits further legislative action.

Then, in 2007 the Indigenous Traditional Knowledge and Indigenous Intellectual

Property Act was passed. This, too, can be seen as an indirect outcome of the establishment

of the Council of Indigenous Peoples, and is further an outcome of political promises made

by the DPP during the campaign for the presidential elections in 2000 (Lin, 2007: 187). The

bill was first introduced in 2003, but many legislators argued the bill was unfair to other

ethnic groups, as it created a set of special rights for a small minority (Ibid: 187). Regardless

of this being just or unjust, fact remains that the bill was put aside. However, the 2005 IPBL

blew new life into the process, as the Legislative Yuan was under pressure to pass legislation

to protect ―the biodiversity knowledge and intellectual creation of indigenous people‖, and

thus the Act was passed in 2007 (Lin, 2007: 187). The Act offers protection to different

components of indigenous tribes, including songs, dance, weaving, dyeing, and ceremonies,

as long as the creations are certified and registered by the Indigenous Peoples Council of the

Executive Yuan (Huang, 2014:4).

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2.2 The national and International dimension of local legal safeguards

Now a number of important legislative changes have been stated, it is time to look beyond the

surface. In other words, how can the legal changes be understood from a political point of

view? What political forces drove this change? How can this be placed in the national and

international political arena? Again, Taiwan‘s lifting of martial law in 1987 has been taken as

a rather arbitrary point of departure. In examining the political arena for this and subsequent

laws, then, the cases most strongly articulating the political playing field are focused on.

Even though Taiwan does not officially hold a seat at the United Nations, the UN does

influence the discourse on indigenous peoples. First, the Alliance of Taiwan Aborigines,

which was established in 1984, published the Manifesto of the Rights of Taiwan Aborigines.

This document, articulating the inherent rights of indigenous peoples as original inhabitants

of Taiwan, drew heavily from the Declaration of Principles of the Indigenous Peoples, a UN

document addressing the human rights of indigenous peoples (Allen, 2005: 179). Second,

considerable attention was paid to the United Nation‘s Year of Indigenous Peoples in 1993

(Blundell, 2005: 56). Also, Taiwan has participated in global ‗indigenism‘ since the very

establishment of institutions such as the UN Permanent Forum on Indigenous Issues and

related activities (Simon, 2012: 3). For example, after the establishment of the UN Working

Group on Indigenous Populations in 1982 in Geneva9, the first indigenous person from

Taiwan to participate was as soon as the year 1988 (Miller, 2003: 188). A specific instance

indicating participation is the people of the indigenous Yami group and indigenous

environmental activists, who took their case against Asia cement to the UN Working Group

on Indigenous Peoples (Simon, 2005 in Blundell, 2005: 56). In general, indigenous peoples

attending these working groups brought their experience and knowledge of the international

discourse of indigenous peoples back to Taiwan, and were able to lobby for specific

indigenous rights. Taiwan indigenous peoples and experts attend these forums every year in

order to become acquainted with the latest development issues concerning indigenous

peoples10

.

These working groups may inform indigenous peoples in Taiwan, but it by no means

gives them a legal basis which they can employ to claim indigenous rights. It is up to the

national legal apparatus to honor or dismiss claims made by indigenous peoples. The relation

between United Nations standards and Taiwan‘s national indigenous laws is everything but

straight forward. On the one hand, Taiwan does not hold a seat in the United Nations

anymore since 1971, excluding them from the UN councils. The working group for

Indigenous peoples, however, is a peculiar exception. Taiwan‘s indigenous peoples do not

represent Taiwan, but instead their own nations, and are therefore able to attend UN

Indigenous Working Groups. Still, there are complications, as Taiwanese indigenous peoples

have been listed as representing the ‗Taiwan Province of China‘, and Taiwanese indigenous

delegates have been prohibited to speak (Miller, 2003: 188). On the other hand, the ROC

gains international legitimacy from adhering to international treaty standards (Allen, 2005:

165). Therefore, it is not unthinkable that the relatively strong position of indigenous peoples

9 Personal communication with Scott Simon, May 25

th, 2016.

10<http://www.taiwanngo.tw/files/15-1000-26869,c156-1.php?Lang=en> accessed May 12, 2016

8

and adherence to international customary law in Taiwan‘s national legal framework is not

only an outcome of Indigenous peoples attending UN Working Groups, but also because of

the possible international leverage it gives Taiwan. Then again, since the government of

Taiwan does not hold a seat at the UN, the extent to which the government of Taiwan is

factually honoring Treaties and Charters cannot be scrutinized by the ordinary UN

institutional processes (Allen, 2005: 165). But the fact remains that ideas from the UN

Working Groups have been incorporated into ROC law, including the 2005 Indigenous

Peoples Basic Law Act (Simon, 2012: 3).

International recognition is by no means the entire story of the emergence of

indigenous legislation. The cross straight relation between the People‘s Republic of China

(PRC) and the ROC is explained to be another important aspect, as it heavily influences

Taiwan‘s national politics. In that regard, the question of indigenous peoples is one of

identity politics. Emphasizing Taiwanese indigenous identity is done so specifically by the

Democratic Progressive Party (DPP). One perspective on why this is so, is carried forward

strongly in the following passage,

“in this respect, DPP leaders appreciated that Taiwanese cultural distinctiveness was

weakened by the fact that similar cultural practices could be found in the mainland

province of Fujian. Given that the island’s Indigenous peoples constitute the only

groups with legitimate non-Chinese credentials, the DPP sought to emphasize the

“Indigenous dimension” of Taiwanese identity, since this was the only way that the

Taiwanese people could be shown to be essentially different from those living on the

Chinese mainland” (Allen, 2005: 179-180).

That similar cultural practices can be found in the Fujian province is elsewhere argued to not

constitute a completely different identity11

, but the argument made here is clear. DPP

appreciated the claims arguing for similar cultural practices among Taiwanese and Fujianese

as this undermines claims from the KMT party that China and Taiwan are distinctly different.

Simultaneously, it gives the DPP the chance to articulate a separate identity based on

indigenous peoples. Thus, on the one hand it helps claim independence from China, while on

the other hand it undermines claims made by the KMT. It is therefore also politically

interesting for the DPP to support indigenous rights.

The commitment to promote indigenous rights is perhaps most clearly promulgated by

the establishment of the CIP in 1996. It is interesting to highlight the political window of

opportunity that was necessary for the establishment of the CIP, as this further indicates the

political arena in which indigenous issues are taking place. In early 1996, the ruling KMT

almost lost the vote for speaker of the legislature (Templeman, 2015: 19). Two indigenous

legislators (from the KMT party) supported the opposition‘s nominee (from the DPP), and the

election resulted in a tie in the first round. The primary reason for indigenous KMT

legislators to support the opposition‘s nominee, was the promise that a bill advancing the

establishment of an Aboriginal Affairs Commission would be passed (Templeman, 2015: 19-

11

That the Han Chinese are culturally different from Mainland China through acculturation to indigenous

practices, is argued particularly by Brown (2004, p. 140).

9

20). After this happened, however, the Executive Yuan had yet to take action to establish the

commission. This establishment was cleverly achieved by all six indigenous legislators

representing indigenous peoples in the Legislative Yuan. As the KMT also needed

reconfirmation for the premier Lien Chan while the majority margin remained narrow, all six

indigenous legislators threatened to withhold their votes unless the Executive Yuan moved to

establish the commission (Templeman, 2015: 20). The demand was honored shortly after,

and thus indigenous affairs moved from the Ministry of the Interior to its own cabinet-level

agency, eventually coined the Council of Indigenous Peoples (CIP) (Ibid:20).

What the international and national dimension shows, is a political reality of

indigenous issues much more complex than a straightforward commitment to the cause of

indigenous rights. The promulgation of indigenous laws has to be understood from a

multiplicity of perspectives that are continuously applied in the political arena. This is not to

say, however, that indigenous peoples themselves do not play a role in this process: in the

drafting and promotion of indigenous laws they have played a crucial role. At the same time,

the political circumstances – be it cross-strait relations, international legitimacy, or national

political dynamics – are decisive in emulating indigenous laws and policies.

3. Taiwan’s indigenous legal plurality

In the previous sections we have seen the vast promotion of laws for indigenous peoples in

different fields. From a legal perspective, it can be argued that these laws function to prevent

oppression by majoritarian rule in Taiwan‘s society. In this section the argument is taken a

step further. First, this section explains how – even though there has been some improvement

in the legal status of indigenous peoples – the dominant Taiwanese legal framework remains

to function as an instrument of majoritarian rule. Then, the section explains how the legal

status of indigenous peoples can be understood from a legal pluralistic perspective.

3.1 Indigenous laws in the national legal apparatus

As the previous sections highlighted, there has no doubt been a substantial improvement in

the legal status of indigenous peoples. From a more critical perspective towards these laws,

however, it can be argued that majoritarian rule remains prevalent. For example, by looking

at the legal apparatus, it is the majoritarian ethnic group, the Han Chinese12

that constitute a

vast majority of the seats in the Legislative Yuan13

. Even though the indigenous people hold

six seats in the Legislative Yuan, which is disproportionally much considering they constitute

only two percent of Taiwan‘s population, passing laws for indigenous peoples remains

immensely challenging.

First, it is important to understand the legislative process. Explained very briefly, once

a bill is introduced there is a first reading. Before being scrutinized again in a second reading,

possibly the bill is send to a committee and/or a Caucus Consultation to discuss it in further

12

This can be further divided into Hoklo (or ―native Taiwanese‖, 72%), the Hakka (13%) and the ―Mainlanders‖

arriving after the Chinese Civil War in 1949 (13%) (Simon, 2010: 727). 13

In fact, in principle all 113 but the 6 seats specifically designated for indigenous peoples will be occupied by

Han Chinese.

10

detail. Then, the second reading is held, and in the case of a budgetary bill there will be a

third reading. If, after the first reading, a bill is sent to a committee for closer scrutiny, a

number of legislators (averaging 14) led by two chairpersons (usually one KMT, one DPP

member) discuss and vote on the bill (Chi, 2014). The Caucus Consultations are relatively

new in Taiwan‘s legislative process, and were last revised in 2008. Since 2008, three or more

legislators can form a caucus, and participants include members of each party. Chi (2014)

explains these are usually the whips of the party and the rapporteur of the committee, while

the Speaker and Deputy Speaker or the Party who sponsors the bill chair the consultations.

Each participant is required to sign in order for the bill to pass (and could thus also veto any

bill), while parties are also made equal in power regardless of their number of seats in the

Legislative Yuan (Ibid). Chi (2014) further explains that the speaker of the Legislative Yuan

is by far the most powerful person, which can also be seen as he or she chairs the Caucus

Consultation which is decisive for the passing of a bill. If a bill passes these steps, the bill

moves on to the second reading, which is important as amendment, reexamination, revocation

and withdrawal are all decided upon in this stage by majority vote14

. The third reading –only

required for legislation and budgets bills – is primarily meant for final corrections of

wording15

.

Despite that the legislative can be explained in much more detail, a few general

observations can already be made. In the following argumentation, it is important to

understand that a division is made based on ethnicity (indigenous vs. non-indigenous) and not

according to party lines. What we see in the previous is that in the Caucus Consultation

practically every member has veto-right. If then, for example, a fundamental claim like

political autonomy is proposed, and the bill ends up in the Caucus Consultation, the chance of

it passing is logically nihil. It is, of course, also possible that a bill doesn‘t end up in the

Caucus Consultation, but then still has the second hearing to go through. Majoritarian

domination can be argued to remain prevalent here, too, as it is practically impossible to

mobilize support for indigenous autonomy from non-indigenous legislators.

The ultimate threshold against majoritarian rule is the constitution: the procedure to

amend it is extensive, and thus makes it more difficult to fall prone to temporally popular

perceptions. The tables are turned, however, when a minority like indigenous peoples tries to

change the colonial framework to which they were previously subjected16

. Consider, for

example, a hypothetical amendment to the constitution proposing to grant autonomy to

indigenous peoples according to their historical land rights. Such an amendment would, after

the constitutional revisions of June 2005, have to be supported by popular referendum

(Simon, 2007: 235). Support for this cause would be difficult to gain, as indigenous

sovereignty is rarely accepted amongst non-indigenous voters (Ibid:235).

14

Derived from Washington University Manual of International Legal Citation

<http://law.wustl.edu/GSLR/CitationManual/countries/taiwan.pdf> May 15, 2016. 15

Ibid 16

The point to emphasize here is the legal legacy of previous colonizers. A discussion of the extent to which

indigenous peoples remain to be subjected to colonial rule is not one that will be made here.

11

What this indicates is that in attempts to free indigenous people from a colonial legal

framework, gathering support remains difficult. From a broader point of view, it can be

argued that indigenous peoples fall prone to majoritarian rule in the Taiwanese legal

framework. Even though indigenous peoples are disproportionally well represented in terms

of Legislative Yuan seats, it is clear that their real influence remains marginal. This is not to

say, however, that they have not changed the position of Taiwanese indigenous peoples at all,

as we have seen a number of legal changes in section 2.1. A possible critique of these

changes is, however, that they have only been promulgated after capturing a small window of

opportunity, and only if the compromise made is no larger than the envisioned goal (i.e. the

1996 CIP would logically not been approved if it was found to exceed the goal of

reconfirming the premier). What this practically means for the situation of the indigenous

peoples, then, is on the one hand a number of legal changes aimed at integrating indigenous

peoples in Taiwanese society better have been promulgated, while on the other hand

fundamental changes are to be expected to be tedious, if not impossible, to achieve given the

political-legal playing field.

3.2 Indigenous rights from a legal pluralistic perspective

“Law here, there, or anywhere, is a distinctive way of imagining the real” (Geertz, 1983:

184).

The previous section has explained how, even though there has been some legal improvement

on the side of Indigenous Peoples, it remains difficult to gain support for their cause in the

Taiwanese legal framework. This section tries to look how the position of Taiwanese

indigenous peoples can be assessed from a legal pluralistic perspective. After having

introduced the concept of legal pluralism, it will be applied to the situation of Taiwan‘s

indigenous peoples‘ inclusion in the national legal framework. In so doing, this section will

largely draw on two classical pieces by Sally Engle Merry (1988) and John Griffiths (1986)

on the history and definition of legal pluralism, and a contemporary examination of legal

pluralism in the context of indigenous rights and wildlife conservation in Taiwan by Simon

(2015).

First, a brief explanation of legal pluralism. For the purpose of writing – and without

diving too much into the scientific debate on its conceptualization – the definition of legal

pluralism that will be upheld is ―a situation in which two or more legal systems coexist in the

same social field‖ (see Griffiths, 1986, also Merry, 1988). Crucial in this conceptualization is

that no hierarchy is presumed. Thus, instead of viewing a colonial legal system as being

dominant over indigenous legal systems, the different legal systems merely exist, or perhaps

compete, in a given territory. Interesting to note is that in the context of legal pluralism the

initial focus was on trying to understand how tribal and village peoples in colonized societies

maintained social order without European law (Merry, 1988: 869). Later, as colonial law was

reshaping the social lives of these peoples17

, the focus then shifted to understanding how

competing legal systems function in the same social field.

17

Chanock (in Merry, 1988:869) refers to law as ―the cutting edge of colonialism‖

12

Further, legal pluralism can broadly be divided into two different branches. Whereas

this section focuses on the analysis of the intersections of indigenous and European law, or

‗classic legal pluralism‘ (Merry, 1988: 872), more recently a different branch emerged. This

branch applies the concept of legal pluralism to non-colonized societies such as Europe and

the United States (Ibid: 872). Given Taiwan‘s colonial history starting in the 17th

century with

the arrival of the Dutch, it is clear this article is concerned with classic legal pluralism.

Particularly interesting in that regard is how indigenous customary law can be understood in

contrast to the national Taiwanese legal framework, or what Griffiths (1986:1) refers to as

―the ideology of legal centralism‖.

Then why is legal pluralism so interesting for the case of Taiwan‘s indigenous

peoples? Because, on the one hand, there is a deep similarity between what is understood by

legal pluralism and how it evolved. On the other hand, this may hint at possible ways in

which the discussion on indigenous peoples and their rights can be carried forward. Looking

at the similarities between academic writing and Taiwan‘s peoples experience, the similarities

are striking.

First, the imposition of colonial law. Ever since the arrival of the Dutch in the 17th

century, different colonizers have subjected indigenous peoples – albeit to differing extents –

to their colonial law. The Dutch transformed indigenous life in several ways. The most

radical change was perhaps transformation of indigenous peoples to becoming ‗legal

subjects‘ under colonial law. The Dutch claimed ownership over all land, imposed a tax

system, introduced a hierarchical local political system18

, and carried out education and

missionary programs (Roy, 2003: 16). During the subsequent rule of the Ming Dynasty, and

later the Qing Dynasty, a centralist unitary legal framework again imposed certain rules on

indigenous communities, ranging from a physical barrier between ‗tamed‘ and ‗untamed‘

indigenous peoples (Blundell, 2005: 44) , to making regulations about intermarriage of Han

and indigenous peoples (Brown, 2004 in Blundell, 2005: 44). During the Japanese period

from 1895 to 1945 vigorous attempts to ‗normalize‘ indigenous peoples have been made by

bringing them under centralized law. Indigenous peoples were encouraged to use Japanese

names, were forced to use Japanese in a compulsory elementary school program, and

effectively all Taiwanese territory was under control of the Japanese government. A very

similar approach was applied by the KMT government after they took control of Taiwan in

1945. Now, Indigenous peoples were forced to adopt Chinese, names, wear Chinese clothes,

and to learn mandarin Chinese (Harrison, 2003: 351). Attempts to ‗make the mountains like

the plains‘ went so far as to dictate the proper way of eating (with chopsticks) and with whom

(nuclear families instead of with neighbors) (Simon, 2010: 731).

These are but a few examples of the ways in which colonial law, starting from the 17th

century, subjected indigenous peoples to a centralized legal ideology. Arbitrarily imposed,

the colonial law oftentimes conflicted with customary law, and had therefore to be imposed

by force19

. Despite the entire geographical area of Taiwan being currently under the

18

In this political system, local leaders were appointed to communicate affairs (Roy, 2003: 16) 19

Most notably perhaps during the aftermath of the 1930 Wushe incident.

13

Taiwanese governments‘ legal framework, indigenous customary law remains relevant. It is

here, too, that one sees the similarities between legal pluralism and Taiwan‘s contemporary

situation. Bavinck and Gupta (2014: 89) explain legal pluralism ―can expose the trade-offs

between different goals made in the different competing rule systems‖, and they continue, ―as

well as how actors operate in these settings‖. Another point they make is that it ―demonstrates

the reality of incoherence in vertical policy, as well as the incidence of processes of

marginalization of social and environmental issues‖ (Ibid: 89). But then how does this

practically take place in the Taiwanese setting?

In a detailed account of Indigenous rights and wildlife conservation, Simon and Awi

(2015) describes how multiple legal rules are applied to a single social situation. In trying to

understand the practices of, and disputes surrounding, indigenous peoples hunting in their

‗traditional‘ territory, they examine it from the viewpoint of international customary,

national, and tribal law20

. Specifically, they give the example of how the hunting practices of

Seediq and Truku people could be seen as violating Taiwanese wildlife laws against trapping

(Simon and Awi, 2015: 8). At the same time, according to the United Nations Declaration on

the Rights of Indigenous Peoples and the Basic Law, indigenous people have an inherent

right to self-government (Ibid: 8). Then there is also the discussion of how to hunt, when to

hunt and what animals to hunt according to the Atayal Gaya (Simon and Awi, 2015: 8). The

discussion on the applicability of a certain set of rules regularly recurs in the Taiwanese

debate on indigenous rights. In terms of hunting then, some hunters disregard Taiwanese

national laws to continue hunting according to their interpretation of tribal law. This is very

much in line with the viewpoint that existing social arrangements ore often effectively

stronger than the new laws (Moore, 1973 in Merry, 1988: 880).

And this does not only apply to hunting practices. In 2006 three indigenous men from

Smangus brought back a wind-fallen tree lying on the road, and were soon afterwards

interrogated by the forest police as the tree would have been state property that they had

stolen (Kuan, 2010: 12). The Smangus men turned the tables, and accused the Taiwanese

state of stealing their land (Ibid: 13). As Kuan (2010: 13) further explains, this case gave rise

to social concerns about indigenous land rights and how it was understood from the

perspective of the Taiwanese legal system. Again, one sees here a negotiation of the

application of legal systems in one social system21

. At the same time, this is a clear case of

how existing social arrangements are effectively stronger than the new laws. Another

example; in 2003 a Tapangu headman (from the Tsou tribe) believed he was exercising his

sovereign rights on Tsou land when he confiscated a barrel of honey from a ‗suspicious

Chinese‘ (Chen, 2008: 95). Subsequently, the court found the Tapangu Headman guilty of

stealing the barrel from the Chinese trespasser (Ibid: 95). Again, one sees the strength of

existing social arrangements. Last, this can be seen in the prosecution of Tama Talum, a

Bunun hunter who was arrested and charged with violating the ‗Controlling Guns, Knives,

20

In his explanation, Simon also explains how the borders of the Atayal Gaya (customary law) are not clearly

demarcated and subject to discussion (Simon, 2015: 7-8). 21

The discussion was also held during the mapping process of indigenous land by the CIP, which gave further

rise to the prominence of the case – especially since Presidential elections were around the corner and it was a

chance for the ruling party to show its dedication to promote the cause of indigenous peoples (Kuan, 2010: 14).

14

and Ammunition Act‘ and the ‗Wildfire Conservation Act‘22

after having shot two deer.

Here, it was possible to refer to indigenous rights not only based on customary law, but also

in the Indigenous People‘s Basic Act that. As we have seen earlier, however, further

legislative action needs to be passed, and the court ruled against Tama Talum despite him

referring to both customary law and the Indigenous Peoples Basic Act. What is important for

the investigation of this article is not, however, the prosecution that followed the act, but the

act of hunting as a portrayal of the strength of customary indigenous law itself.

Generally speaking, there is no doubt that the life of indigenous peoples has changed

dramatically after having been subjected to different colonial legal frameworks. One has only

to look at the (near) complete disappearance of most of the ‗plains‘ tribes to understand how

their cultural practices have changed to such an extent that it completely aligns with the

national legal framework. This is illustrated by the fact that, in 1949, ethnic labels of plains

indigenous peoples were canceled on all levels (Chen, 2009: 34). But, even though playing an

important role, it is not only the law that caused this. Intermarriage between different ethnic

groups, for example, is also explained to play a role in the change of social practices (Brown,

2004 in Blundell, 2005: 44). However, as explained in the previous section, in some cases

existing practices are indeed stronger than new laws. The extent to which these instances can

be termed ‗often‘, as Merry (1988: 880) does, is debatable, but it certainly is a relevant point.

In the case of the earlier mentioned Seediq and Truku hunters, an interesting reading of

Taiwan law has developed. Simon (2015) explains that despite Taiwan‘s law criminalizing

hunting, these regulations are not always enforced. The national park police take

circumstances into account when patrolling. Without referring to indigenous rights

specifically, forestry patrollers sometimes allow indigenous hunters to keep their game

(Simon, 2015: 22-23). Their decisions as to whether or not to allow this is based on

individual circumstances, such as the amount of game (Ibid, 23). At the same time, if the

National Park police is informed by, for example, ‗a Han Taiwanese tourist with a Buddhist

ethic against killing sentient creatures‘, the Park Police has no option but to enforce the law

(Ibid: 22). What this illustrates, then, is a certain leniency in Taiwanese law enforcement

which allow indigenous customary practices to continue. It is specifically interesting that the

national legal framework has not only shaped the lives of indigenous people, nor is it a

simple continuation of previously existing indigenous practices. What this illustrates, is an

adjustment in the enforcement of the national legal framework to the customary practices of

indigenous peoples.

4. Conclusion

This article started by providing a historical oversight of different legal safeguards for

indigenous peoples within the Taiwanese legal framework, which was fueled by Taiwan‘s

democratization at the end of the 20th

century. Even though a number of legal safeguards

have been promulgated, fundamental claims such as autonomy have been left untouched. The

next section argued this can be explained by looking at the national and international political

arena. Even though there has certainly been improvement in the legal status of indigenous

22

<http://www.taipeitimes.com/News/feat/archives/2016/01/26/2003638073> , accessed April 5, 2016

15

peoples, the political circumstances – be it the cross-strait relations, international legitimacy,

or national political dynamics – prove crucial in emulating indigenous laws and policies.

From the perspective of legal pluralism, a more nuanced view of the legal realities

emerges, in which both new laws and existing social practices inform the behavior of

indigenous peoples. On the one hand their behavior is officially limited by Taiwan‘s national

legal framework, on the other hand numerous instances indicate that indigenous customary

law remains highly relevant to understand local practices. Interestingly, a certain leniency in

Taiwanese law enforcement has appeared which allows certain indigenous customary

practices to continue, while they are considered illegal under Taiwanese law.

But how can this carry forward the discussion on indigenous rights and legal

pluralism? On the one hand, as articulated elsewhere23

it indicates that legal pluralism is

highly relevant in the case of Taiwan‘s indigenous population, and it can help understand

indigenous customary law and illegalities according to Taiwan‘s national legal framework.

Specifically, from the perspective of legal pluralism we understand that existing social

practices are sometimes stronger than new laws. A significant example in that regard is how

customary law also caused a certain leniency within the national legal framework (see Simon

and Awa, 2015), even though this is clearly not always the case (see e.g the case of the

prosecution of a Bunun hunter in section 3.2). We see, then, two different ways in which the

legal realities of indigenous peoples are shaped. (1) Within the national legal framework, and

(2) by a negotiation of different rule systems (indigenous customary vs. ideologically

centralist) at the local level. Fact remains, however, that more fundamental claims on the side

of indigenous peoples are difficult to realize. Either indigenous peoples do not have the

political means to have such claims honored, or customary law is so inconsistent with

Taiwan‘s national framework, that ultimately force decides. It will be incredibly challenging,

if not impossible, to negotiate fundamental claims such as autonomy within the national

Taiwanese legal framework.

23

Particularly by Simon and Awi (2015)

16

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