The Petition Statement of Smangus

Guilty? NO!

Please publicly express your support for

the Not Guilty Plea of the Wind-fall Beech Event in Smangus

Statement: Smangus was indicted of larceny on account of the wind-fall beech event. However, the village does not accept the result of the first instance made by Taiwan Hsin-Chu District Court, and insists on the rightness of its Tayal traditional customs, and the coherence with the spirit of the New-Partnership and the Aboriginal Basic Law that was issued by the President of Taiwan. Therefore, we are determined to go for the Not Guilty Plea.

Rhiyal myan, hmwsa qeriq son sami!」Kmayal qu mrhuw Icyeh,Iyayt nbah mstkungmsqara qu sinnusan inlunganNyux qu mshiyu mtasaw na Gaga Tayal, khanay ta nya Utux Kayal, prrawslokahphngyang qu Smangus Mhway simu kwara!」

“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!”

The History of the Event

On September 2nd of the previous year (2005), the visit of typhoon Haitang caused the landslide on the only jointing roads, which was within our traditional territory. In order for students to go to school and in order to bring our lives back to normal, the village assembled a meeting and sent people to make the urgent repair. At that time, the beech was buried amongst the mound of the landslide. After the road repair, the villagers put the wood on the roadside, and had in mind the idea of bringing it back to the village someday to help create the village, which will add the glory of our village when it comes to tourism promotion.

On October 7th of that same year, while the wind-fall beech had been laid there for a month and seven more days, we were mad to find that the Forestry Bureau staff had sawn the fallen beech into pieces and transported them down to the plain. This was a bully manner of a burglar to take the wood without any notice to the native inhabitants. In spite of the upset, we endured the unfavorable situation quietly.

Observing the value of the tree remains, the village appointed the three people, including Amin, to transport it back. On their way back, they bumped into the chief of Hengshan branch, Hsin-Chu County Police Bureau, Taiwan and Hbun Tunan Police Station, who accused them against the Forestry Act, and arrested them on the charge of burglary. They received the result of the first instance on April 18th, 2007. The penalty shall be 6 months of imprisonment, the fine of NT$160, 000 for each person, and suspension of punishment for two years.

Smangus does everything in accordance with Tayal traditional law (Gaga) and universal ethics. Besides, we hold village conference to deal with public affairs on the basis of the Tribal Treaty. Smangus people have lived on this land for more then 20 generations. It is also our living here that protects the environment in some ways. That we make the best use of the woods and other natural resource is no doubt a right and proper thing. Why then does this deed leave on us a stigma of stealing? This is so beyond our comprehension.

No matter how you look at this event, the Forestry Bureau and the Police are viewing this case from the strictest angle. They didn’t regard it with Section 4, Article 15 of the Forestry Act, “If the forest is located in the traditional territory of aboriginal people, the aboriginal people may take forest products for their traditional living needs. The harvesting area, variety, time, paid/unpaid, and other rules should be decided by the central government agency along with the central government of the aboriginal people.” Instead, they didn’t do what they were supposed to do (help the village make repairs on the joint roads) and accused us with Article 52, “The penalty for burglary of primary forest products or forest by-products.” This is extremely unacceptable!

We are saddened by the unfair verdict of Taiwan Hsin-Chu District Court. In order to claim our innocence and seek justice, we are determined to appeal to a higher court to fight to the very end and ask for the Not Guilty Plea. We will definitely fight it through. And we hope that those who chime with us would like to help us in a practical way.

You can help by your countersignature either as an individual or as a group/ organization. There are two things you can help:

1 Countersignature by ( individual or group)
For Individual
For Organization
View current results!!

2. You can write a letter in support of Smangus and have it sent to any of the following government departments:

Office of the President, Taiwan

Email (please go to): http://www.president.gov.tw/en/

Tel: 886-2-23113731
Address: No. 122, Sec. 1, Chungking Rd., Taipei, Taiwan

Executive Yuan, Taiwan

Email (please go to): http://www.ey.gov.tw/sp.asp?xdURL=mail/mail_en.asp&ctNode=210&mp=11

Tel: 886-2-33566500

Address: No. 1 Sec. 1, Jhongsiao E. Rd., Taipei City, 10058 Taiwan

The Forestry Bureau

Email: service@forest.gov.tw

Tel: 886-2-23515441

Address: No. 2, Sec. 1, Hangchou Rd., Taipei City, 10050, Taiwan

Council of Indigenous Peoples, Executive Yuan, Taiwan

Email of the Minister: minister@apc.gov.tw

Attn: Mr. Walis Perin (Tayal)

Tel: 886-2-25571600

Address: No.172, Sec. 2, Chongcing N. Rd., Datong District, Taipei City 103, Taiwan

1 comment:

Anonymous said...

An interpretation on the inefficiency of the Indigenous Peoples Basic Law (IPBL 2005) with regards to indigenous land rights,Taiwan

Lo, Yung-Ching 羅永清 d93228002@ntu.edu.tw

The Indigenous Peoples Basic Law (IPBL 2005) , was past by the Legislative Yuan on the 22nd day of January 2005 and was enacted in the following month on the 5th day of February by President Chen and Premier Chang, who are thought in comparison to have a warmer plea for the promotion of indigenous rights. The promulgation of the IPBL was somewhat a good news and also astonishment to many lawmakers, scholars, and indigenous activists on its rich articles concerning many international standards of indigenous human rights and also on the surprising easy promotion for being past. Many indigenous activists consider it as a big progress on the way to future images like autonomy, but also many worry about the future implementations on bringing so many rights for indigenous peoples to come true. This glimpse would interpret some of its articles concerning indigenous land rights and its future on the implementations. Observations from some recent indigenous land cases like Dulan(都蘭鼻開發案), Fonlin(鳳林鄉開發案)of Amis; Ita Thao(伊達邵文化復育園區)of Thao; Ali-shan B.O.T(阿里山BOT案)of Tsou; Chu-lu初鹿牧場of Puyuma; Smagus司馬庫斯 Battles for the Unfair Trial, the author predicts that the IPBL 2005 is not helping land issues and rights for indigenous peoples before implementations sub laws are issued.

Through many decades of efforts of indigenous movements especially on the land issues beginning from the 1980s, indigenous peoples are claiming lands rights to ask back their lost lands. There were some feedbacks through governments compromising some solutions to answer the claims, such as to provide some more reserved lands to individual titles. But this won’t satisfy most of the indigenous people who insist on various claims of self-determinations based on land rights. Thus following by the continuum of self-determination, there are ideas on independency to own their sovereignty or share or co-own with the sovereignty with the “nation”, Republic of China (R.O.C) on this island that is actually accepted by very few countries as an independent country; whereas most of the indigenous movement activists are eager for autonomy. The IPBL reflects this continuum that needs more procedures and further law making on implementations and conflicts between different laws to bring any kinds of forms of sovereignty that indigenous are willing to come to as the article 34 in IPBL(2005) suggests.
Land issues have been thought as critical issues but not so easy to be solved only by law making for lands problems are mixed with many detail problems like where, when, whom, how, what of the land problems should be solved. As Pasuya Poiconu, the former deputy minister of Council of Indigenous Peoples(CIP) ,that had launched a Project of Indigenous Traditional Territories and lands Mapping(PITTLM) from 2001 (4 years before the IPBL, 2005) on conducting an academic based survey on where the land is, said that ‘PITTLM is the first step of the establishment of self-government. Maybe people will ask me why the government does not set up laws directly to make it happen as soon as possible. It is because we (indigenous people) have to persuade mainstream society and to produce consensus in each indigenous group firstly’. The launching of the PITTLM is based on the memorandum signed twice by the President candidate Chen for the fist time in 2000 during the campaign and later the second time in 2002 after he won the election. The PITTLM has been aimed on both conducting a survey to try to know where, when and whom of the land concerned and also empowerment to the indigenous people to help them corporate on their actions on land rights claiming to peruse a future of any possibility on autonomy or co-management to meet their indigenous rights. The PITTLM is more than an ambition to encourage indigenous movement initiated and sponsored by central government but not a survey which can be based as legal foundation to determine on those where, when, whom issues. The PITTLM is trying to encourage indigenous peoples from the bottom to form their internal census on land claims thus in the future to persuade the mainstream society.
Thus in the new past IPBL (2005), there implies such themes for collective actions to be based on a solid group foundations that legitimate decision makings concerning group rights. The term “tribe”, appears first time in national codes to denote a solid group foundations for collective actions, refers to “a group of indigenous persons who form a community by living together in specific areas of the indigenous peoples’ regions and following the traditional norms with the approval of the central indigenous authority (Article 2, definitions 2)”. “Approval” is implemented with much fund and supports during these few years to support some tribes who are doing collective actions on tribal “revitalizations” that help to form the subjectivity of tribes. Thus we can observe many “subjectivity making” phenomenon happening under or out of sponsorship from governments. The term approval is also controversial for its top-down denotations. Approved tribes will become tribes according to this article but then? A tribe is a subject on what extent? Questions are raised more than answers are provided. Some hints can be interpreted in the memorandum signed by President Chen saying the state will form a “New Partnership” with indigenous peoples who are nations in nations and thus indicate to form a partnership with different nations of indigenous peoples. President Chen doesn’t explain more to what extent a “nation” is in his new partnership declaration. Many scholars interpret it with common political sciences senses to think it as equal as nation state. Thus a subject to be equal as nation is the main characters that indigenous people would like to imagine as acting in the self-determination continuum scenarios. Tribe is a basic term through many centuries of colonial constructions and also more fit into the daily lives activities for the indigenous representational politics. Tribalism activities have comprised the second movement of indigenous movements so far. The previous minister of the Council of Indigenous Peoples, Walis Berlin, as leading indigenous movements for many decades is supporting the tribalism movement all the way through his endeavors on lawmaking and now on policy practice. In the IPBL which he initiated majorly during his time of being an indigenous legislator imply this a vague way by article 4: “The government shall guarantee the equal status and development of self-governance of indigenous peoples and implement indigenous peoples’ autonomy in accordance with the will of indigenous peoples. The relevant issues shall be stipulated by laws”. Scale of Subjectivity of the indigenous peoples will be a critical issue concerning the future implementation of the IPBL. Tribes thus become a basic unit composed of a group of people and community to be a subject of rights. It is interesting to know that “tribe’ in Taiwan contexts denotes different scales from such a small scale like village communities to so big a scale as ethnical groups recognized already by government(13 ethnical groups so far). With the term “with the approval of the central indigenous authority”, the scale will be determined by the central indigenous authority. With the assurance of the subjectivity concerned in the future, land rights shall be recognized as Article 20 goes, “The government recognizes indigenous peoples’ rights to land and natural resources. The government shall establish an indigenous peoples’ land investigation and management committee to investigate and manage indigenous peoples’ land. The organization and other related matters of the committee shall be stipulated by law. The restoration, acquisition, disposal, plan, management and utilization of the land and sea area owned or occupied by indigenous peoples or indigenous persons shall be regulated by laws.” This article assume indigenous land and related natural resources as objects to be investigated and “managed” by the Indigenous peoples’ land investigation and management committee(IPLIMC) to deal with land rights. It is not clear whether the “dealing with” will mean the archiving of indigenous land rights as indigenous peoples have always imagined. And to what extent will the IPLIMC be empowered to authority on decision making of land rights are waiting for another lawmaking. It is logical for many people to think that the critical issues of sovereignty over land and ownership are not yet decided in this law which need another games of lawmaking. This article is thought as vocal commitment but not actual gain of rights. Thus to bring a draft on the IPLIMC and to pass it as a complementary law to support this article are the key issue for further implementation.
Now the CIP has a draft of Indigenous Land and Ocean Laws brought by a group of scholars whom are sponsored by the CIP. It is to many peoples’ curiosity that to what extent the IPLIMC may decide and deal with the land problems. For many issues or conflicts have been happening so complicatedly. In an interview by me, a sub section Chair in charge of the land policy in the CIP, Yabusonngu said, “the committee shall be empowered as at least like the function of court to act as a judgment on land issues, otherwise they won’t be able to decide so complicated things.” But I would worry a dilemma concerning that the court should be very neutral so as not to be set up only for indigenous plea and neither will be inclinable to pro for indigenous under the written law systems now in Taiwan. The court like committee would stand in conflicts between the common ideas of individualism justice. Thus it is also hard to arrange on the components of the authority and members to act as a national institution.
The logic of the discussion till now seems to follow a logic which thinks land rights and ownerships are the basic foundation for further development for the achieving of indigenous rights. It can be contested and challenged that whether land ownership by any subjects like autonomous polity or any collective representatives or individuals is the first step to bring further development on indigenous rights, but concerning to the quest from the indigenous movement of “asking back my lands”, to what extent does this IPBL has answered? In article 23 saying, “The government shall respect indigenous peoples’ rights to choose their life style, customs, clothing, modes of social and economic institutions, methods of resource utilization and types of land ownership and management.” Land ownership should be respected to denote a meaning to consider different land ownership regimes when indigenous land are related in any “indigenous people’s regions” as the free prior inform consent and benefits sharing principles are illuminated in the article 21.With regarding to the rights of indigenous people’s regions , referring to article 2 “areas approved by the Executive Yuan upon application made by the central indigenous authority where indigenous peoples have traditionally inhabited, featuring indigenous history and cultural characteristics.”, Article 21 and also 2 contribute only to the land areas status quo to have the rights of free prior inform consensus and benefits sharing. There is a kind of land category that is thought critical on the answering of the quest of “Asking back my land”, that is the “indigenous land” defined vaguely in article 2, which “refers to the traditional territories and reservation land of indigenous peoples.” Reservation land is clear in the cadastre in the land administration but what and where the traditional territories are seems still a secret. It is interesting to know that “indigenous land” in its Chinese writing in the original code denote a meaning of collective right on land. The word “tsu” (race, ethnical group) in “Yuan-Zu-Min-Tsu-Tu-Di (indigenous peoples’ land)” is recently working as common sense that denotes a collective right beside individual rights that has been contracted as the basic principle in Taiwan’s civil laws. But reservation land has already gone through privatization though alienable and disposable limited only between indigenous peoples from Japanese time and it is issued as individual right. Here the definition on “indigenous land” put the “reservation land” which indigenous people have already had ownership over together with another category of “traditional territories” which nobody so far has a definition even in the code itself. We may interpret the future committee of IPLIMC will be empowered to decided on the definition to further decided on where, when who(m), or else the traditional territories concerned in Article 20. Thus it is to many policymakers and indigenous people’s anticipation to consider the result of the Project of Indigenous Traditional Territories Mapping (PITTLM) will provide many evidences to support the decision-making by the IPLIMC. Thus it is not important so far to decide on whether it is collectively or individually rights over land to any extent in the definition of indigenous lands. But it is highly possible to think traditional territories may obtain the extent like reserved land has had. It is to this purpose and ambitions to whom are doing traditional territories survey in the indigenous communities.
Till now we have found the future of IPLIMC is critical. If indigenous peoples are thinking autonomy through a concrete sovereignty over land, thus “traditional lands” will be the core area besides the Indigenous peoples’ regions where have already been occupied by government and non-indigenous peoples as now. Or it can be possible to imagine “indigenous land” and traditional territories to include as much area as extended to “indigenous regions” as could be. It seems to be only decided by the future IPLIMC. It should be to everybody’s curiosity to know whether it can be empowered so much. It is cleaver to have Article 3 saying, “For the purpose of reviewing and coordinating matters related to this Law, the Executive Yuan shall establish a promotion committee which shall be called by the Premier”, to support the law implementation not only by the CIA only who is only equal or even lower within so many departments of central government in the Executive Yuan. And it is in Article 6, “In the event that any dispute concerning the power of autonomy arises between the government and indigenous peoples, the Office of the President shall call a consultation meeting to resolve such dispute.” that the President can be willing to help on conflicts solving.
As a result it can be imagined that the solutions depend heavily on future environment between politics and the willingness of the majority people. Thus we may feel a gap existing in the IPBL that there are many articles concerning the construction of indigenous autonomy like in article Article 4 quoting, “The government shall guarantee the equal status and development of self-governance of indigenous peoples and implement indigenous peoples’ autonomy in accordance with the will of indigenous peoples. The relevant issues shall be stipulated by laws.” And Article 5 suggests that the state shall provide sufficient resources and allocate abundant annual budget to assist indigenous peoples in developing autonomy. Autonomy here in the code is decided in accordance with the will of indigenous peoples. But if the indigenous are thinking in the logic of solid sovereignty, the first authority can help is still the future IPLIMC to help to bring the indigenous’ will to come true with the help of any governments concerned based on article 4 and 5.
It seems implicit that the IPBL is still trying to avoid a direct answer on the land ownership rights and delay and transfer his reply to the future lawmaking. With this tricky answer to the “Asking back my land” requests, many indigenous people still think many answers are not provided in the IPBL. As an indigenous movement activist and a policy maker, Malay Kumay criticizes on the IPBL thinking the articles on Article 22 though providing indigenous peoples with the rights of comanagement on natural resources with other existing and emerging governments, but no details of implementation is provided in the code but only in the future waiting another lawmaking. Besides these there are still a lot of land conflicts existing for so long but still find no solutions in the law. It is to many indigenous ideas to think the IPBL doesn’t help a lot.
As a researcher of PITTLM, the author has been consulted for advices on many land conflicts cases that existing before and resulting after the passing of IPBL .I would only illustrate the case in Tulan in southeast Taiwan suffering a situation where the local county government is supporting outside company to set up a seashore resort on the indigenous Tulan beach. Tulan people accused of the company as against the IPBL, which should protect their indigenous territories. But the meeting for the conflicts solving results as the company owner says that, “there is no definition on what and where is traditional land or ocean territories accrding to any laws even in the IPBL, so I have the right empowered by the government to set my business here. If there is any law to provide a definition on it, I would definitely leave here without anything left here!”. It’s ironic and true that traditional territories are not yet legalized.
It seems the indigenous peoples don’t benefit more from the new law that is waiting for the future time-consuming law making. Land issues are trickily avoided a clear solution in the sentences and lines of those articles in the IPBL. And this is also hinted the same way in the lines that President Chen had signed twice on the memorandum “A New Partnership Between the Indigenous Peoples and the Government of Taiwan”in the 5th article of the 7 , “to restore or recover tribal and ethnic traditional territories for Taiwan indigenous peoples are originally tribal societies where institutions of communal or individual uses are based on communal ownership of land. In order to rebuild an ethno-cultural development subjectivity to process a foundation for autonomy, the government of Taiwan should admit or recognize, regardless of the private ownership regimes on land, on the tribal and ethnic subjectivities and their ownerships over the traditional territories.” (see the original article below in the footnote )” The first two Chinese words “Huei Fu(恢復)”denote a common meaning of recovery or restitution. But What is going to be restituted is not clear as the word like “return”, “giving back” that indigenous peoples have always asking for. This article uses the word “recognize or admit” on indigenous subjectivity on their traditional territories but seems not to admit and give the rights over. It seems we still can not know through this declaration to what extent of land right will be assumed, not to mention that many peoples still think this law is unconstitutional. (Huang, 2005 citation?) To quote again from Pasuya Poiconu, the former deputy minister of Council of Indigenous Peoples(CIP) sentences, “we (indigenous people) have to persuade mainstream society and to produce consensus in each indigenous group firstly’”. The implementation of the IPBL is waiting another game of political economics.

May 18, 2007 5:04 PM