Reflect on the first court sentence for the windfall beech dispute

(A native, Pisuy Silan)

The dispute between the people of Smangus and the Taiwan Forestry Bureau since last September has led to a political campaign which calls for fairness and respect in treating the indigenous peoples in Taiwan. Supporting the defendants in the lawsuit, people originally taking on this task were those who live in the community. Nevertheless, the campaign is growing and the advocates gradually include the nearby indigenous Tayal communities, then the whole Tayal tribe, and now social activists from diverse ethnic / cultural backgrounds.

The people of Smangus observed the traditional ceremony P’surux Btunux (setting up a stony alter to make covenant) on May 7, 2007. By doing so, they made a statement about their long history of residing at Smangus and the compatibility of living with the nature. They argued that history had endowed them the right to define, own, and manage their own traditional territory. This natural right, they claimed, should oversee the judiciaries of the countries, including that of the Republic of China. In this reason, although the latest sentence of the court did not turn out in favor to the defendants, they still argued for the defendants’ innocence -- On April 18, 2007, Taiwan Hsin-Chu District Court announced the first sentence to each of the three defendants six months in imprisonment, fine of NT160,000 dollars, and two year deferral of imprisonment. The people of Smangus resented, rejecting to accept the result.

They explain that they, following the culture and the wisdom taught by the elders and their previous generations, live in a sustainable way in harmony with the ecological system and protect the natural resources in their own traditional territory. Facing the globalization of capitalistic individualism, the people of Smangus mean to preserve their traditionally collectivist lifestyle by organizing a co-op which carefully applies the plans of community development. The co-op distributes the resulting profit to all of the community members and finances the community youth’s educational scholarships. More, when natural disasters happened to make the only road linking the village with the world outside impassable, they took initiative to clean the path without sitting and waiting for the local government’s rescue. The people of Smangus thought that their spontaneity would lead the government to consider Smangus a model among the indigenous communities.

Surprisingly, the government agents did not appear to appreciate the community’s activism. Rather, through judicial intervention the local Forestry administrators charged the three people of the community larceny of stealing a stump of a windfall beech. Indifferent to the autonomy Smangus had showed, the administrators in fact acted in conflict with the vision posted by the Council of Indigenous Peoples, the central governmental agent that promoted the indigenous people’s community revival and worked in defining the communities’ traditional territories. Such negligence hurts the chance to give birth to any bill of right for the indigenous peoples. It gives no help except leaving the people reminiscence that they once could hunt and farm on their own lands.

An indigenous reporter Pisuy Masao recorded the conversation in court between the chief judge and the defendants on April 4, 2007. The conversation illustrated the great disparity between the judge and the defendants in terms of understanding the judicial laws vs. indigenous culture.

The judge: “ Are you saying that the beech was within your community’s traditional territory? Where and how large is the territory?” (The judge pondered for long as speculating that there was such a territory.)

One of the defendants tried to recall the location: “It starts from our village and extends to the Dabajian mountain.”

The judge: “I am asking about that of your village, not that of your tribal nation. I would like to ask another person ….. Can you indicate the location of the traditional territory?”

Another defendant answered “If I need to count the area precisely, although not having exactly measured it, I can give you my estimation – the area starts from our village, up and down to 800 meters, left to 5 kilometersj, and right to 12 kilometers.”

The judge frowned: “Can you raise any legal evidence to prove your statement? Did you ever register the territory to the government?”

A defendant replied: “Our governmental body is the Council of Indigenous Peoples. We are also making our own tribal map.”

Judge: “Your own tribal map?”

(The rest of the inquiry is skipped)

Because the Forestry administration had numerated and painted numbers on the woods, the act to take any part of a tree was judged as stealing country’s property. In addition, the Forestry Bureau through persecutor office’s indictment accused the defendants as joint offenders who violated Section 4 Article 52 of the Forestry Act. This could lead to the sentence of imprisonment ranging from six months to five years and fine ranging from two to five times, which was more serious than the fine to a single offender. On surface this sentence seemed to be legally valid and fair. However, the sentence based on the general provisions of the current judicature still ignored the fact that the indigenous peoples had survived along with and using the natural resources for thousands of years in Taiwan.

After hearing the sentence, Icyeh Sulung, the chief of Smangus, outside the court house expressed his indignation. He argued that indigenous peoples had begun to reside in Taiwan long before any political power as country was established. This case made the indigenous communities realize that the current government did not fully expect the indigenous peoples’ right. This issue showed that in the previous presidential election campaign, the candidates who proposed to value and protect the indigenous people’s ways of life said so only for obtaining ballots. The promise made by the current president Chen Shui-Bian to form a new partnership with indigenous peoples did not appear to be true.

In order to assure indigenous peoples’ right, the legislature passed the Aboriginal Basic Law in July, 2005. The time set for completing the amendment was three years. Now more than two years have elapsed. During the past two years, the right of the indigenous peoples in Taiwan was still neglected and even denounced. The instances can be seen in the “honey” dispute that happened to the Tsou tribe, the dispute regarding how the police did body search to some Taroko people at a national park, and recently the government’s inefficiency in preventing non-indigenous fishermen’s boats from interrupting the Tau nation’s flying fish festival. These instances raise questions whether or not the Aboriginal Basic Law can really protect the indigenous peoples. It is either worrisome that the Council of Indigenous Peoples, which should stand for the indigenous, do not seem to be able to resolve the issues efficiently.

P’surux Btunux (set up a stone marker to make covenant) is a sacred ceremony observed by the Tayal tribe. It serves the indigenous communities to define territories of hunting, farming, and residence. Centuries ago the people of Smangus migrated from the original place Pinsbkan toward the north. Then this ceremony was used to draw borders with the other communities. Not long ago, the chief of Smangus, Icyeh Sulung again led all the people of Smangus to observe this ceremony. It functioned as a solemn statement. It declared to the Forestry Bureau as well as the government of Taiwan that the people of Smangus had the right to claim their own territory, protect, and well manage the forest within it. Through the ceremony, the participants educated their own children that they made an oath to God and their ancestors that they determined to hold on this right.

Practicing the tradition, the people of Smangus not only have sent a strong message to the court and administration, arguing that the defendants who applied the decision of community assembly should not be sentenced as thieves, they also have advocated that indigenous peoples as humans own natural right to determine their own ways of life. When the majority of the people in Taiwan seem to only pay their attention on the political fights among the different parties, the voice of Smangus may sound humble. But in dignity it is a clear voice that calls for conscience and equality.

Translated by Tony Chu, Taiwanese/American Fellowship Presbyterian church in New Jersey, USA