This summary constitutes no part of the Judgment but is prepared by the Clerk’s Office of the Constitutional Court only for the readers’ reference.
Original paragraph numbers that the summarized texts correspond to are put into lenticular brackets after each paragraph.
Original Case No.: Taipei High Administrative Court 107-Yuan-Su-Keng-Yi-1
Original Case Assignment No.: 109-Hsien-San-17, filed by Taipei High Administrative Court Division No.3
Argued on June 28, 2022.
Decided and Announced October 28, 2022.
In this Judgment, the Taiwan Constitutional Court (hereinafter the “TCC”) declared Article 2 of the Status Act for Indigenous Peoples unconstitutional on the account that it unduly excluded Taiwanese indigenous peoples (mainly the Pinpu Peoples) other than “Mountain indigenous peoples” and “Plain-land indigenous peoples” from its application, consequently violating their right to recognition of indigenous identity and the protection to their indigenous culture. In its reasoning, the TCC delved into the legal history of the regulation on indigenous status in Taiwan since the Qing dynasty, and extended the definition of indigenous peoples to Austronesian Taiwanese peoples that meet the elements of (1) preserving their cultural characteristics such as their ethnolect, custom, and tradition until present; (2) maintaining their ethnic identity; (3) having a verifiable historical record of them being Austronesian Taiwanese peoples.
Background of the Case
During Qing rule, the Qing Empire crudely divided Taiwan’s indigenous peoples into two categories, shengfan [生番] (literally “wild/uncivilized aboriginals”) and shufan [熟番] (literally “tamed/civilized aboriginals”), for administrative purposes, such as taxations and demarcations.
During Japanese rule, the government adopted and noted these categories, shengfan [生蕃] and shufan [熟蕃], under the racial classification column in their household registry system. The former, based on differences in administrative zones, was further divided into Banchi banjin [蕃地蕃人] (literally “savage land aboriginals”) and Heichi banjin [平地蕃人] (literally “plain-land aboriginals”). Towards late Japanese rule, the government changed shengfan into Takasago-zoku [高砂族] (literally “mountain indigenous peoples”, which includes Banchi banjin and Heichi banjin) and shufan into Heiho-zoku [平埔族] (later translated into Chinese as “Pingpu”, literally “plains indigenous peoples”). 【14】
After the relocation of the Nationalist Government, they maintained the categorization of Japanese rule due to fiscal reasons, but adopted the term shanbao [山胞] (literally “mountain compatriots”) for indigenous peoples due to previous discriminative connotations. After which, for electoral reasons and referring to the categorization of Japanese rule, the term “mountain-area shanbao” [山地山胞] (or “mountain-area mountain compatriots”) was used to designate those who (1) registered in banchi [蕃地] (literally “savage land”, which is the mountain administrative zone) and (2) held the marking of sheng or Takasago in household records during Japanese rule; while the term “plains shanbao” [平地山胞] (or “plains mountain compatriot”) was used to designate those who (1) registered in the plain-land administrative zone, (2) held the marking of sheng or Takasago in household records during Japanese rule, and (3) registered with the village (town, city, district) administration office during the designated time period (1956, 1957, 1959 and 1963) . Consequently, the Pingpu peoples were excluded from the categories of indigenous peoples. 【15】
Although the then Taiwan Provincial Government had issued letters ordering municipal governments to help the Pingpu peoples register as plains shanbao additionally in 1957, those who missed the aforementioned time periods could not apply for indigenous peoples’ status afterward. These letters not only mixed up the Pingpu peoples with the Takasago-zuko who lived in the plains administration zone (the previous Heichi banjin), putting them in the same category of plains shanbao; but also extended the limitation of the said registration period onto the Pingpu peoples. This arbitrary limitation was preserved in succeeding regulations. It later on influenced the Status Act for Indigenous Peoples 2001 (hereinafter “SAIP”), which confined the definition of indigenous peoples exclusively to only “mountain indigenous peoples” (previously as mountain shanbao) and “plain-land indigenous peoples” (previously as plains shanbao) registered with the village (town, city, district) administration office, excluding the Pingpu peoples from the picture. 【18】
The 112 plaintiffs of the original case (including the main plaintiff Ms. Uma Tavalan), who are of Sirayan decedent, have been applying for their status as plain-land indigenous persons since 2009 but were rejected and dismissed repeatedly by the Council of Indigenous Peoples, Executive Yuan and the Administrative Courts.
In their latest attempt, the plaintiffs applied to be approved as indigenous persons in 2012 but were rejected by the Council of Indigenous Peoples on the ground that they/ their elder lineal relatives by blood—although registered in the plain-land administrative zone during Japanese rule, and was registered as shu [熟] in the household records—did not apply to be registered as plain-land indigenous peoples in the village (town, city, district) administration office within the designated period, thus themselves failed to meet the elements of indigenous peoples status, which is stipulated in Article 2, Paragraph 2 of SAIP . The plaintiffs filed for an administrative appeal in 2014, then lodged litigation in 2015. The case went back and forth between Taipei High Administrative Court and Supreme Administrative Court.
In 2020, when hearing this case, the petitioner (Taipei High Administrative Court Division No.3) believed that Article 2, Paragraph 2 of SAIP has violated the Pingpu peoples’ right to be recognized as indigenous peoples bestowed in Article 22 of the Constitution, the Principle of Equality prescribed by Article 7 of the Constitution, and the protection of indigenous peoples stipulated in Article 10, Paragraph 11 and 12 (First Sentence) of the Additional Articles of the Constitution, therefore suspended the proceeding of the case and lodged a petition with the Constitutional Court concerning the constitutionality of the said provisions. 【6】
Summary of the Judgment
1. Indigenous peoples protected by Article 10, Paragraphs 11 and 12 (First Sentence) of the Additional Articles of the Constitution (hereinafter “AAoC”) , include all Austronesian Taiwanese Peoples in Taiwan. In addition to the mountain indigenous peoples and plain-land indigenous peoples stipulated in Article 4, Paragraph 1, Subparagraph 2 of AAoC , other Austronesian Taiwanese Peoples who meet the elements of (1) preserving their cultural characteristics such as their ethnolect, custom, and tradition until present; (2) maintaining their ethnic identity; (3) and there is a verifiable historical record of them being Austronesian Taiwanese peoples, may, with their will, apply to be approved as indigenous people; its members thereby may legally acquire indigenous people status.
2. Article 2 of the Status Act for Indigenous Peoples (hereinafter, “SAIP”) stipulated that the definition of “indigenous peoples” only includes “Mountain indigenous peoples” and “Plain-land indigenous peoples”. The said definition does not cover other Taiwanese Indigenous peoples that meet the abovementioned elements, creating an exclusion of state protection for their indigenous identity. Within this parameter, the said Article of SAIP contradicts the protection of the right to recognition of indigenous identity bestowed by Article 22 of the Constitution and the protection of indigenous culture inscribed in Article 10, Paragraphs 11 and 12 (First Sentence) of AAoC.
3. The competent authority shall, within a grace period of three years from the announcement of this Judgment, amend SAIP or legislate a special law in accordance with this Judgment, in which the abovementioned elements, the elements to meet indigenous status, and their registration procedure are stipulated expressly. If said amendment or legislation is past due, before it is done, those who (1) herself/himself or her/his elder lineal relatives by blood were registered as shu ([熟], literally “tamed/civilized”) or ping ([平], literally “plain”) in the household records during Japanese rule; (2) provides preliminary showing that their ethnic group has preserved its cultural characteristics such as ethnolect, custom and traditions; (3) belongs to an indigenous group that its members still maintain its ethnic identity, may, in accordance with the purpose of this Judgment, apply to the central indigenous authority for the recognition as indigenous peoples.
The core value of a free and constitutional democracy is to protect human dignity and respect the free development of personality. The right to personality, which is the foundation of individual personality, is an indispensable fundamental right, and one of the basic human rights bestowed in Article 22 of the Constitution. This right to personality includes the right to recognition of indigenous identity. Furthermore, in accordance to Article 10, Paragraphs 11 and 12 (First Sentence) of AAoC, the State shall actively preserve and foster the development of indigenous languages and cultures and provide proper assistance for indigenous affairs such as education. To view the abovementioned articles comprehensively, the Constitution not only protects an individual’s indigenous identity, but also protects the collective indigenous identity of each group of indigenous peoples. 【19-20】
The Constitution and its Additional Articles do not stipulate the definition of indigenous person/peoples expressly, neither does it lay out the elements of indigenous peoples, nor does it prescribe that indigenous peoples only include mountain indigenous peoples and plain-land indigenous peoples. In other words, the Constitution does not exclude indigenous peoples other than those stipulated in Article 2 of the SAIP, from the protection of indigenous peoples enshrined in Article 10, Paragraphs 11 and 12 (First Sentence) of AAoC. This protection, unless stipulated expressly in Constitutional Amendments, cannot be detached from certain Taiwanese indigenous peoples, just for the reason that competent authority arbitrarily defined what constitutes indigenous peoples. 【24】
For the purpose of protection of indigenous culture enshrined in the said articles of AAoC, the definition of indigenous peoples and its parameter of protection should not be in contradiction with historical facts and the international trend of the protection of indigenous peoples. Instead, it should be more lenient; in other words, the exclusion from such protection should be put under strict examination. 【26】
What should be distinguished with the abovementioned protection, is the special protection of indigenous peoples’ right to be elected, stipulated in Article 4, Paragraph 1, Subparagraph 2 of AAoC. For the reason that it is a constitutional choice with a different theme and purpose, which is to ensure racial quota by the categories of mountain indigenous peoples and plain-land indigenous peoples. 【28】
In Taiwan’s history, before the large-scale migration of Han people, indigenous peoples have pre-existed in every corner of Taiwan. These indigenous peoples, with the same Austronesian origin, have developed and shaped their own history, language, traditional culture, and customs. In view of this historical context, in addition to the mountain and plain-land indigenous peoples (the Takasago-zoku during Japanese rule) stipulated in the said provisions of SAIP, undoubtedly there have been other indigenous Austronesian Taiwanese peoples living in Taiwan up till today. 【30-31】
The government during Japanese rule had done comprehensive household censuses in Taiwan; its results, the official household registration records, can be considered historically objective and complete. Furthermore, these records have been in continuous usage, by the present government, as a legal basis for the recognition of Taiwanese indigenous peoples. Therefore, the TCC deems it consistent and appropriate, to adopt the said records, and whether one/ one’s elder lineal relatives by blood were registered as shu [熟] or ping [平] in these records, as one of the accreditations of Austronesian Taiwanese ethnicity. 【32-34】
The “indigenous peoples” specially protected by the Constitution, refers to the Taiwanese indigenous peoples that are not yet fully assimilated by other ethnic groups; and that still maintain their cultural characteristics ( such as ethnolect, custom, tradition…,etc.) which can be passed on to the next generation. Those who possess indigenous consanguinity, but have lost their original ethnic and cultural characteristics due to complete assimilation by non-indigenous peoples—therefore incapable, or have no intention of preserving or fostering their ethnic and cultural attributes to the next generation—are not to be considered as the indigenous peoples that should be specially protected in a general sense.【36】
Considering all of the above, from the perspective of Taiwan’s historical context, the indigenous peoples that are specially protected by Article 10, Paragraphs 11 and 12 (First Sentence) of the AAoC, should include the Austronesian Taiwanese peoples that pre-exist in Taiwan, and not just limited to the indigenous peoples stipulated in the said provision of SAIP. In addition to the mountain indigenous peoples and plain-land indigenous peoples stipulated in Article 4, Paragraph 1, Subparagraph 2 of AAoC, other Austronesian Taiwanese Peoples who meet the elements of (1) having preserved their cultural characteristics such as their ethnolect, custom, and tradition until the present; (2) having maintained their ethnic identity; (3) and there is a verifiable historical record of them being Austronesian Taiwanese peoples, shall have the right to be recognized and legally approved as indigenous peoples. The competent authority is legally obligated to issue such approval. The substantive requirements and procedure for a group and its members to be legally approved as indigenous peoples/indigenous persons, shall be stipulated expressly by the competent authority. Those who acquire indigenous peoples’ status through the abovementioned means, shall enjoy their legal rights and bear their legal obligations. 【38】
Justice Horng-Shya HUANG penned this Judgment.
All Justices are in unanimous agreement with all three parts of the holding.
Justice Chih-Hsiung HSU, Justice Jui-Ming HUANG, Justice Sheng-Lin JAN, Justice Jau-Yuan HWANG (joined by Justice Ming-Yan SHIEH), Justice Tzung-Jen TSAI (joined by Justice Jiun-Yi LIN and Justice Chong-Wen CHANG) each filed a concurring opinion.
 Article 2 of the Status Act for Indigenous Peoples:
“The term ‘indigenous people’ herein includes native indigenous peoples of the mountain and plain-land regions. Status recognition, unless otherwise herein provided, is as provided in the following:
* Mountain indigenous peoples: permanent residents of the mountain administrative zone before the recovery of Taiwan, moreover census registration records show individual or an immediate kin of individual is of indigenous peoples descent.
* Plain-land indigenous peoples: permanent residents of the plain-land administrative zone before the recovery of Taiwan, moreover census registration records show individual or an immediate kin of individual is of indigenous peoples descent. Individual is registered as a plain-land indigenous peoples in the village (town, city, district) administration office.”
 Article 10, Paragraphs11 and 12 of the Additional Articles of the Constitution:
“The State affirms cultural pluralism and shall actively preserve and foster the development of aboriginal languages and cultures.” (Paragraph 11)
“The State shall, in accordance with the will of the ethnic groups, safeguard the status and political participation of the aborigines. The State shall also guarantee and provide assistance and encouragement for aboriginal education, culture, transportation, water conservation, health and medical care, economic activity, land, and social welfare, measures for which shall be established by law. The same protection and assistance shall be given to the people of the Penghu, Kinmen, and Matsu areas.” (Paragraph 12)
Article 4, Paragraph 1, Subparagraph 2 of the Additional Articles of the Constitution:
“Three members each shall be elected from among the lowland and highland aborigines in the free area.”
 Article 22 of the Constitution:
“All other freedoms and rights of the people that are not detrimental to social order or public welfare shall be guaranteed under the Constitution.”