Cover Page The handle http://hdl.handle.net/1887/20772 holds various files of this Leiden University dissertation. Author: Lo, Yung-Ching Title: Accessing indigenous land rights through claims in Taroko Area, Eastern Taiwan Issue Date: 2013-04-17 1 Introduction 1.1 Background to the indigenous peoples of Taiwan Taiwan is an area that hosted many colonial regimes for many centuries. The most significant political authorities in Taiwan can be divided into six distinct periods: the Dutch East India Company Period (1624-1661); the Koxinga Period (1661- 1683); the Qing Dynasty or Manchu Period (1683-1895); the Japanese Colonial Period (1895-1945); the Chinese Na- tionalist Period (1949-1996); and the current Independent or Democratic period (1996-present). Indigenous people have experienced many cultur- al, social, legal and economic encoun- ters. ‘Indigeniety’ has been contexted and contested under a range of differ- ent regimes of governance. In the early 17th century, Taiwan’s indigenous communities were divid- ed into the pingpu of the plains and the mountain aborigines. Gradually, most pingpu peoples encountered Han Chinese customs and religious beliefs and, consequently, their na- tive languages died out (Yang, Yan- jie 2000). As a result of this cultural assimilation, it is now hard to deter- mine how many pingpu tribes actu- ally settled on the plains of the island. In the Japanese period, the indige- nous peoples in the mountains were generally divided into nine major tribes, although many of these people Map 1.1 lived on the coastal plains and other Government-recognized Indigenous Peoples in Taiwan (2010) islands (Miyamoto 1985; Mori 1900, 13 Accessing indigenous land rights through claims in Taroko Area, Eastern Taiwan 1985 2000; Ogawa et al. 1935). The Amis populated the two sides of the Coastal Mountain Range in eastern Taiwan; the Puyuma lived on the Taitung plain and the Yami settled on Orchid Island. The Atayal, Saisiyat, Bunun, Tsou, Rukai and Paiwan made a living in the mountains. The traditional nine tribe classification system, which was used throughout most of the 20th century, is now considered inadequate for the classification of the rich variety of Taiwan’s indigenous cultures (Chiu 1994; Rudolph 2003a, 2003b, 2004a, 2004b, 2004c). Today, fourteen tribes are recognized as distinct subgroups. In 2001, the Thao Tribe was classified as a dependent of the Tsou; in 2002 the Kavalan was classifed as a dependent of the Amis; in 2005 both the Truku and the Sediq were officially declared as dependents of the Atayal people; and in 2008 the Sakiraya were classified as dependents of the Amis. The Pingpu are also pursuing official recognition of their status as indigenous peoples. Eth- nic movements on ethnic labels indicate the need for recognition of both iden- tity and methods of survival. In addition to ethnic labels, Taiwan’s indigenous peoples have initiated many social movements of diverse persuasion. What they all have in common, however, is an emphasis on the land rights issue. Certainly, throughout the 1980s and 90s, many indigenous people brought many waves of ‘Returning my Land’ social movements to national attention. In fact, indigenous ways of subsistence have demonstrated the peoples’ rela- tionships with the land, no matter whether the lands in question are the places where they live now, or whether they are the lands where they lived in the past. These relationships are the basis for their feelings of injustice regarding their social status. Slash-and-burn mountain cultivation, hunting, fishing and gath- ering were the main occupations of indigenous peoples, and millet, corn and dry rice were the staple crops (Wallis-Nokan 2002). Plains-dwelling aborigines, including the Pingpu, Puyuma and Amis, primarily engage in farming, fishing and hunting. Fishing on the sea is a key occupation for coastal people such as the Yami (Tao Tribe) on Orchid Island. These ways of life were challenged or abol- ished by outsiders starting from the Qing Dynasty. Indeed, the Qing Dynasty’s strategies for mountain indigenous peoples oscillated between two ‘adversative policies’: defensive segregation and development by pacification. Under the de- fensive segregation policy, there appeared to be a line of demarcation between Taiwan’s plains and mountains that prevented the Han people from encroach- ing on the indigenous peoples’ territory. However, this policy of segregation was gradually defeated by the Han’s pursuit of lands. Indigenous ways of subsistence have been forced to change in a very short space of time. The taking over of Tai- wan by the Japanese in 1895 accelerated the changes and, in fact, the Japanese state went on to remove almost all indigenous land rights. Though some reserva- tion land rights were preserved for indigenous survival, their subsistence meth- ods proved to be no match for so many changes. The Chinese Nationalist (Kuomintang) government adopted almost identical land policies to those designed by the colonial Japanese government. In 1999, a White Paper on Indigenous Policy was introduced by the then Presidential can- didate Chen Shui-Bian, of the Democratic Progressive Party (DPP). This paper 14 1 ■ Introduction announced that as of the 10th of September 1999 the legal term ‘natural rights’ would be used to recognize that the indigenous peoples were the original owners of Taiwan (see appendix 3) (Simon 2005, 2007, 2011; Rudolph 2006). The docu- ment suggested that indigenous land rights and sovereignty should be acknowl- edged and upheld. Subsequently, many policies concerning indigenous rights have been reviewed and redesigned. Certainly, this White Paper was the positive result of many decades of effort by indigenous social movements. During Presi- dent Chen’s second term in 2005, the Indigenous Basic Law, which comprises much of the spirit of the United Nations Declaration on the Rights of Indigenous Peoples (2007) was promulgated. In the Indigenous Basic Law, land rights are largely respected and redesigned to support the indigenous people in such a way that they can revitalize their livelihoods – whether it be through co-management or autonomy – and their relationship with the natural resources. However, what the law does not seem to be able to deliver is tangible land rights for indigenous people. There are still many problems at the legal and governmental levels and numerous land claims are still being filed by indigenous communities. A case in point is the Smangus tribe, which advocated a not guilty plea in response to the Windfall Beech Tak- ing Event on the 2nd of September 2005, just a few months after the passing of the Indigenous Basic Law (IBL): 「Rhiyal myan, hmwsa qeriq son sami！」Kmayal qu mrhuw Icyeh,「Iyayt nbah mstkung、msqara qu sinnusan inlungan！Nyux qu mshiyu mtasaw na Gaga Tayal, khanay ta nya Utux Kayal, prraw、slokah、phngyang qu Smangus！ Mhway simu kwara！」(Atayal version) “It is OUR land! Why call us thieves?” said Icyeh the chief, “And to the end will we fight with perseverance and with no fear. We firmly believe that all of our efforts will bring forth the realization of justice and truth. We pray that God will bless for this time, and I hope that the friends of Smangus will help us with your great strength. Thanks you very much!”1 To return to the issues that will be the focus of my research, I would say that this event illustrates the dialectic of accessing indigenous land rights through claims. Issues relating to what exactly indigenous land rights are and, moreover, how any kind of meaningful ‘rights’ for indigenous peoples can be achieved are repeatedly raised in Taiwan. There is also the need to balance the needs of this group, which makes up only about two per cent of the small Taiwan Island, with those of the wider population of about 25 million, who occupy a crowded area of 36,000 square kilometres. It is not enough to simply address this issue from a le- gal point of view; there also needs to be a reconceptualization of the land-human relationships inside and outside of indigenous cultures and societies. Among the 1 http://smangus.blogspot.com/search/label/The%20Petition%20Statement%20of%20Smangus (last accessed 2008/2/28). 15 Accessing indigenous land rights through claims in Taroko Area, Eastern Taiwan crucial issues to be discussed and resolved are: What is a ‘right’? What are the characteristics of land and resources that need new consideration? Who has the right to ‘own’, and to what extent and under what conditions? The Smangus Windfall Beech Taking Event is only one case among the 400- 600 tribes (amounting to a population of circa 500,000 in 2010) of Taiwan. These groups are suffering, and debating with society about who has rights over what and under what conditions. These land issues actually relate to a reconceptual- ization of politics in terms of who can legitimate a base for governance between so many different human units on issues of justice and the appropriation of land and natural resources. Emic concepts and practices of the relationships between ‘people’, ‘land’, ‘institutions’ and ‘rights’ Etic concepts and practices of the relationships between Claims ‘people’, ‘land’, ‘institutions’ and ‘rights’ (from outside: colonizers, states, economic developers…) Figure 1.1 Encounters of emic and etic concepts in human-land relationships Nowadays, land claims have to relate to a reconceptualization and practice be- tween ‘human units’, ‘land’, ‘institutions’ and ‘rights’. These four vague, and not necessarily exclusive, categories now form indigenous peoples’ emic2 challenges. Here, the term ‘institution’ is broadly construed as pertaining to ‘the rules of the game in a society or, more formally, the humanly devised constraints that shape human interaction’, as defined by North (1990). The notion is not used in a narrower sense referring to institutional arrangements embodied in promul- gated policies, formal laws and customary rules, and the state administration (Ho 2005).