Note: 
This summary constitutes no part of the Judgment but is prepared by the clerks of the Taiwan Constitutional Court only for the readers’ reference.
Original paragraph numbers that the summarized texts correspond to are put into lenticular brackets after each paragraph

Headnotes

The Taiwan Constitutional Court (TCC) declared Article 4, Paragraph 2 of the Status Act for Indigenous Peoples (hereinafter “SAIP”) ^[1] and Article 8 of SAIP (the part where it applies Article 4, Paragraph 2 in both 2008 and 2021 versions) ^[2][3]  in violation of both the right to recognition of indigenous identity and the right to racial equality. The TCC ruled that said provisions impose a differential treatment of children born into intermarriages between indigenous people and non-indigenous people in indigenous people status registrations, which does not pass strict scrutiny under racial equal protection, and rendered it arbitrary and unconstitutional. 

Background Note

In accordance with Article 4, Paragraph 2 of the SAIP, children of intermarriage between indigenous and non-indigenous people only acquire indigenous people status when they take the Han surname of their indigenous parent or traditional indigenous names. In contrast, Article 4, Paragraph 1 of the SAIP ^[4] provides that children of marriage between two indigenous people shall acquire indigenous people status automatically.
Joint Petitioners 1 are siblings. Their father, the late Mr. Tien-Lu CHEN was born into a marriage between an indigenous mother and a non-indigenous father, and he took the surname of his father at birth. Mr. CHEN passed away before the enactment of the SAIP, therefore never applied for indigenous people status. Joint Petitioners 1 took their father’s surname at birth, and applied to be registered as indigenous people in 2013. Their applications were rejected by the competent authority and were dismissed by the court in the following administrative litigations^[5]. The final court decisions ruled that their father, Mr. CHEN, although born into intermarriage between an indigenous person and a non-indigenous person, never took the (Han) surname of his indigenous mother, nor did he take an indigenous traditional surname. For this reason, citing Article 8 of the SAIP (hereinafter, “said provision II”), the court ruled that Joint Petitioners 1 did not meet the qualification of indigenous people status stipulated by Article 4, Paragraph 2 of the SAIP (hereinafter, “said provision I”). Joint Petitioners 1 filed for constitutional review, arguing that said provisions I and II infringed their right to select their names and their right to personality bestowed by Article 22 ^[6], and violated the right to equality guaranteed by Article 7 of the Constitution^[7]. 
Petitioner 2 (a child) is born into a marriage between an indigenous mother and a non-indigenous father. Petitioner 2’s parents decided for the child to take the father’s Han last name at birth but applied for the child’s indigenous people status at the same time. The child’s application was rejected by the household registration authority and was further dismissed by the administrative court in its final decision . Petitioner 2 filed for constitutional review, arguing that the said provision I infringed the right to personality bestowed by Article 22 of the Constitution, and violated the principle of self-recognition for the indigenous peoples and the right to equality enshrined in Article 7 of the Constitution.
On April 1, 2022, the TCC rendered 111-Hsien-Pan-4 Judgment, a landmark case in the history of the TCC. It is the first case in which the TCC addressed the issue of indigenous identity as well as recognized the constitutional right to recognition of indigenous identity. Moreover, it is the first time that the TCC applied strict scrutiny under the jurisprudence of race classifications. It is also the first case in which the TCC held an oral argument under the new Constitutional Court Procedure Act.

Summary of the Judgment 

Holding

Article 4, Paragraph 2 of the SAIP (hereinafter “said provision I”) stipulating that “Children of intermarriages between indigenous peoples and non-indigenous peoples taking the surname of the indigenous father or mother, or using the indigenous peoples traditional name shall acquire indigenous peoples status”, and the pertaining part of Article 8 of SAIP (both the 2008 and 2021 version, hereinafter “said provision II (2008, 2021)”) applying the said provision, violates the right to recognition of indigenous identity and the right to equality guaranteed by the Constitution. The competent authority shall amend the said provisions as appropriate within a grace period of two years from the date of this Judgment’s announcement. If the amendment was past due, the said provisions shall cease to be effective, the children of intermarriages between indigenous peoples and non-indigenous peoples shall acquire indigenous people status automatically, and they may register their indigenous people status and tribe/ethnic groups with the household registration authority. 

Reasoning

1. 1. Said provision I and the pertaining part of said provision II (2008, 2021) applying said provision I, are in violation of the principle of proportionality, consequently infringing the right to recognition of indigenous identity, therefore unconstitutional. 【15】
   
   People’s lineage is a natural fact that pre-existed the Constitution and the law. It is closely related to one’s self-identity and collective identity. Considering that Article 10, Paragraphs 11 and 12 of the Additional Articles of the Constitution (hereinafter “AAoC”)^[9][10] iterate the protection of the indigenous peoples’ cultural pluralism, status, and political participation. And considering that the cultural right of indigenous peoples is one of the fundamental rights protected by Article 22 of the Constitution (confirmed by J.Y. Interpretation No.803). The right to recognition of indigenous identity, which is indigenous people’s special right to personality, shall be highly protected by Article 22 of the Constitution. This right to recognition of indigenous identity is closely intertwined with the collective development of the indigenous peoples. In this sense, it is also an important fundamental right that shall be protected by the Constitution. 【17】
   
   In accordance with SAIP, the acquirement of indigenous people status for a person in principle shall follow jus sanguinis, fictional jus sanguinis (that is to say, children with non-indigenous lineage may acquire indigenous people status by legal fiction through the fact of adoption by indigenous parents), and the principle of self-identification. However, the said provision I and Article 6, Paragraphs 2 and 3 of SAIP ^[11] added additional constitutive elements regarding indigenous cultural identity such as “taking the surname of the indigenous father or mother”, or “using the indigenous peoples traditional name”, which amounts to a restriction on the right to recognition of indigenous identity of the children born into intermarriages between indigenous people and non-indigenous people (in this context, hereinafter “intermarriage”). This is a restriction on an important fundamental right protected by the Constitution, therefore shall be reviewed under strict scrutiny. 【18, 21】
   
   The said provisions I and II (2008, 2021) are for the purpose of advancing cultural identity. Considering that indigenous peoples in Taiwan hold a special historical status that is protected by the AAoC, this purpose should be considered involving compelling public interest.【24, 26】
   
   However, although the stipulation of “using the indigenous peoples traditional name” as a constitutive element for indigenous people status can be considered a valid measure for promoting indigenous cultural identity, the stipulation of “taking the surname of the indigenous father or mother” as a constitutive element is a questionable measure. The reason is that in Taiwan, viewing from an anthroponymy perspective, indigenous ethnic groups do not have a concept or tradition of surnames. Taiwanese indigenous ethnic groups follow different naming customs, such as “combination of personal name and patronymic/matronymic”, “combination of personal name, patronymic/matronymic and name of their family house”, or “teknonymy”. Taking the surname of the father or mother is a Han naming custom, instead of an indigenous cultural tradition. Furthermore, deciding or promoting indigenous identity on the basis of naming customs is formalistic. Adopting the surname of the indigenous father or mother does not necessarily signify identification with indigenous culture. Rather, it takes relevant upbringing, learning, and living to form and maintain one’s indigenous identity. Under current regulations, both indigenous people status and (indigenous) ethnic group status have to be acquired through registration. Instead of naming, parents registering their children as indigenous people is sufficient in showing their identification with indigenous culture. Therefore, “recognizing indigenous people status of a person base on their names” is apparently not the least restrictive means to promote indigenous identity. 【28, 29】
   
   In conclusion, in the case of the acquirement of indigenous people status of children born into intermarriages, the said provisions I and II (2008, 2021) have imposed additional restrictions on the right to recognition of indigenous identity of the people with indigenous lineage. The purpose of such restriction, although is of compelling public interest regarding the protection of indigenous cultural identity, its means is not suitable, nor is it necessary. Therefore, said restriction cannot be seen as the least restrictive means of its purpose, consequently making it non-conform to the principle of proportionality enshrined in Article 23 of the Constitution ^[12]. 【31, 32】
    
2. 2. The said provisions I and II (2008, 2021) are in violation of racial equality guaranteed by Article 7 of the Constitution, therefore unconstitutional. 【33】
   
   In terms of the relationship between indigenous identity and indigenous lineage/percentage of indigenous lineage, regardless of the categorization of children born into marriages between indigenous people or children of intermarriages, they both hold a certain percentage of indigenous lineage. The former may acquire indigenous people status ipso facto even with a low percentage of indigenous lineage, whereas the latter does not acquire indigenous people status ipso facto even if they have a higher percentage of indigenous lineage than the former, because they have to fulfill the requirement in regards to their names under the said provisions I and II (2008, 2021). Such differential treatment is clearly based on the assumption that children born into indigenous parents definitely have sufficient indigenous self-identification, therefore not required to demonstrate additional efforts; and the assumption that children of intermarriages would certainly lack sufficient self-identification with the indigenous culture, therefore required to be treated differently. Why is it that the former is deemed to show sufficient indigenous identity and may acquire indigenous people status simply through registration, while the fact that the latter applying for the same registration itself is insufficient in demonstrating their indigenous identity and needed additional requirements in their names? The differential treatment stipulated by the said provisions I and II (2008, 2021) is baseless and arbitrary.【43】
   
   To conclude the aforementioned reasoning, the restrictive measure set by the said provisions I and II (2008, 2021) cannot be deemed as necessary or indispensable towards its purpose, therefore does not satisfy the strict scrutiny standard. The said provisions I and II (2008, 2021) are in violation of racial equality guaranteed by Article 7 of the Constitution, therefore unconstitutional.【44】
   
   In addition, for the reason that children customarily take their father’s surname in Taiwan, the application of said provisions I and II (2008, 2021), in the case of those taking their father’s surname, has led to distinguishing consequences: those who have indigenous fathers may acquire indigenous people status, whereas those who have indigenous mothers cannot. It is not baseless that Joint Petitioners 1 and Petitioner 2 argue that said provisions I and II (2008, 2021) violate gender equality and are unconstitutional. 【45】
    
3. 3. The said provisions I and II (2008, 2021) are both unconstitutional, but shall be invalid later. 【46】
   
   In conclusion, the said provisions I and II (2008, 2021) are in violation of the right to recognition of indigenous identity and racial equality guaranteed by Articles 22 and 7 of the Constitution, therefore both unconstitutional. The competent authority shall amend the said provisions as appropriate within a grace period of two years from the date of this Judgment’s announcement. If the amendment was past due, the said provisions shall cease to be effective, the children of intermarriages shall acquire indigenous people status automatically, and they may register their indigenous people status and tribe/ethnic groups with the household registration authority. 【47】
   
   In the case of past due amendments after the two-year grace period, registration of indigenous people status shall apply the new regulations once they have gone into effect. The enforcement of the new regulations after said grace period shall not affect the rights and duties of those who have registered per this Judgment. 【47】

[1] Article 4, Paragraph 2 of the Status Act for Indigenous Peoples: “Children of intermarriages between indigenous peoples and non- indigenous peoples taking the surname of the indigenous father or mother, or using the indigenous peoples traditional name shall acquire indigenous peoples status.”
 [2] Article 8 of the SAIP (2008): “Those who shall acquire indigenous status but has forfeited it or did not acquire it due to marriage, adoption, renunciation or other reasons before the implementation of this Act, may apply to recover their indigenous status upon the presentation of pertinent documents. (Paragraph 1)
In the case that the person of the previous paragraph has passed away, the person’s children born in wedlock may apply Article 4, Paragraph 2 and Article 7. (Paragraph 2)”
 (Translator’s note: An official English translation of the SAIP (2008) is unavailable. This version is translated by the translator of this Judgment just for reference and shall not be construed as part of the regulation.) 
 [3] Article 8 of the SAIP (2021): 
“Article 4 (Paragraph 2), Article 6, and Article 7 shall also pertain to the children of applicants who meet the criteria for indigenous status stipulated in Articles 2, 4, 5, and 6 but pass away before acquiring such status. (Paragraph 1)
Pursuant to Articles 4 and 6, such children, if they request to have their surname changed to an indigenous name or use a traditional indigenous name, may obtain indigenous status. Children of indigenous persons who passed away prior to the adoption of the December 31, 2020 amendment to this act may use Article 4 (Paragraph 2), Article 6, and/or Article 7 of this act to obtain a traditional indigenous name and thereby acquire indigenous status within two years from the date of amendment. (Paragraph 2)”
  [4] Article 4, Paragraph 1 of the SAIP: “Children of intermarriages between indigenous peoples and indigenous peoples shall acquire the indigenous peoples status.”
 [5] For reference, please see Supreme Administrative Court Judgment 106-Pan-305 (2017) and Supreme Administrative Court Judgment 106-Pan-306 (2017). 
 [6] 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.”
 [7] Article 7 of the Constitution: “All citizens of the Republic of China, irrespective of sex, religion, race, class, or party affiliation, shall be equal before the law.”
 [8] For reference, please see Supreme Administrative Court Judgment 106-Pan-752 (2017). 
 [9] Article 10, Paragraph 11 of the Additional Articles of the Constitution (AAoC):“The State affirms cultural pluralism and shall actively preserve and foster the development of aboriginal languages and cultures.”
 [10] Article 10, Paragraph 12 of the AAoC: "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.”
 [11] Article 6, Paragraphs 2 and 3 of SAIP:“A child born out of wedlock, as stated in the foregoing paragraph, claimed by the non- indigenous father shall forfeit aborigine status; however if a prior agreement provided child should take the mother's surname or have an indigenous peoples traditional name, child shall not forfeit indigenous peoples status. (Paragraph 2)
The children who were born out of wedlock by a non- indigenous woman and, upon the claim of the indigenous father, took the father's surname or had an indigenous peoples traditional name shall acquire the indigenous peoples status. (Paragraph 3)”
 [12] Article 23 of the Constitution: “All the freedoms and rights enumerated in the preceding Articles shall not be restricted by law except by such as may be necessary to prevent infringement upon the freedoms of other persons, to avert an imminent crisis, to maintain social order or to advance public welfare.”