Yo-Ling Chenby Daniel Yo-Ling
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English
Photo Credit: 當代原住民族青年政策藍圖論壇/Facebook
This article is the first in a series covering the work of the Mixed Indigenous Youth Forum Working Group.
IN 2017, Nikal Kabala’an, an Amis woman, carried her first newborn daughter to the Taipei City Da’an District Household Registration Office to register her baby’s birth. Nikal and her husband, who is Han, decided to register their child under Nikal’s husband’s Mandarin surname with the intention of simultaneously registering a traditional Amis name to continue her Indigenous heritage into the next generation. However, she was informed at the Household Registration Office that she could not register her child under her husband’s surname and a traditional Amis name, and thus had to choose only one.
According to Article 4, Clause 2 of Taiwan’s current Status Act for Indigenous Peoples, children of Indigenous and non-Indigenous parents must take the Han last name of the Indigenous father or mother, or a traditional Indigenous name, in order to inherit Indigenous legal status. In other words, when Nikal learned that she was unable to register her child’s birth under both her husband’s Han surname and a traditional Amis name, she was abruptly confronted with the reality that, under the eyes of current laws and regulations, her child’s Indigenous legal status hung in the balance. In an interview, Nikal explained that the reasoning behind Article 4, Clause 2 is the assumption that when Indigenous-Han couples marry, especially when an Indigenous woman marries a Han man, the resulting family is automatically considered Han. Indeed, the name basis for Indigenous legal status was instituted because, according to the Legislative Yuan Gazette, “after Indigenous women marry into non-Indigenous families, a lot of the resulting families tend to be more Han in lifestyle and so while the children of these families may have Indigenous blood … they do not necessarily have an Indigenous identity” (see footnote 52). Hence, the Status Act requires a continuous surname or traditional name from the Indigenous parent in order to prove their Indigenous heritage and qualify for Indigenous legal status.
The Constitutional Court. Photo credit: Jiang/WikiCommons/CC BY-SA 3.0
On April 1st of this year, Taiwan’s Constitutional Court ruled that Article 4, Clause 2 of the Status Act was unconstitutional due to violating constitutional assurance of Indigenous peoples’ identification rights and right of equality under constitutional law. The decision came after months of public discourse on Indigenous legal status, with some Indigenous public figures making statements in support of existing laws and others criticizing these statements. Nikal and her sister, Lapic, also published an article on the Status Act constitutionality controversy drawing attention to the gender inequality that the existing laws reproduce when it comes to Indigenous women who marry Han men. In a majority Han patrilineal society, an overwhelming 98% of children’s surnames come from their father, while only about 1.9% of children are registered under their mother’s surname. This discrepancy means that Indigenous women who marry Han men are, compared to Indigenous men who marry Han women, disproportionately pressured to register their children’s surnames following Han patrilineal customs and thus forfeit their child’s Indigenous legal status. Further research by Puyuma scholar Semaylay i Kakubaw confirms that the existing Status Act, along with all ROC laws regarding Indigenous legal status since at least 1956, constitute gender discrimination towards Indigenous women.
Nikal’s own family background illustrates well the legal discrepancy between Indigenous-Han families formed by Indigenous men and women. She is herself of mixed Indigenous background with a Pangcah–the Amis word for “people,” which many Amis people use to identify themselves–father and a Han mother. Nikal and her sister were registered under her father’s Mandarin surname, Tu (杜), and hence inherited his Indigenous legal status. Nikal went on to marry a Han husband and has two daughters with him. If their children are not registered under Nikal’s Mandarin surname or under a traditional Amis name, they will not receive Indigenous legal status. Firm in her commitment to embrace both parts of her own mixed heritage, as well as to instill in her children an understanding of themselves as both Amis and Han, Nikal intended to register her children under both her husband’s surname and a traditional Amis name. But the existing institutions governing Indigenous legal status were not able to fully accommodate Indigenous families of mixed backgrounds such as Nikal’s.
Controversy Surrounding Legal Changes
BEFORE AND AFTER the April 1st ruling, there have been heated debates regarding Indigenous legal status and legal reforms. For instance, then Presidential Office spokesperson Kolas Yotaka, who is also Amis, took a strong stance against the ruling, urging Indigenous peoples to simply use their traditional names in lieu of Han surnames. For Kolas and others that take a similar position, taking on an Indigenous last name was viewed as a necessary cultural commitment to qualify for Indigenous legal status. Others such as Rukai DPP legislator Saidai Tarovecahe have said that the ruling is a win in some regards and a loss in others.
Undergirding much of the concerns about declaring current laws unconstitutional is a fear that changing the Status Act will lead to the expansion and dilution of Indigenous legal status to the point that it becomes too easy to claim. Accordingly, individuals such as anthropologist Chen Shu-Juo have warned of the possibility of abusing Indigenous legal status solely for the purposes of college admissions or civil service examination. These commentators argue that loosening regulations on Indigenous legal status will further divide already limited resources with regards to affirmative action, subsidies, and access to lands reserved for Indigenous peoples.
The Executive Yuan building housing the Council of Indigenous Peoples. Photo credit: Solomon203/WikiCommons/CC BY-SA 4.0
The ruling by the Constitutional Court mandated that there will be two years to make an amendment to the Status Act for Indigenous People, otherwise, mixed Indigenous-Han individuals who are not registered under their Indigenous parent’s Han surname or a traditional name will automatically be allowed to claim Indigenous legal status. This running-clock strategy of mandating that laws be changed and in what matter within a set timeframe has been used by the Constitutional Court before, such as during the 2017 ruling that led to the legalization of gay marriage in Taiwan two years later, for controversial rulings.
Despite Indigenous activists of mixed backgrounds, such as Savungaz Valincinan, publicly sharing their own life stories with regards to Indigenous legal status in support of legal reform, the majority of public discourse on the Status Act remains largely technical, abstract, and speculative. Missing from public discourse is a sympathetic understanding of the life experiences of mixed background Indigenous peoples that the Status Act will affect most.
Mixed Indigenous Activists Organize to Reclaim Space in Public Discourse
IN RESPONSE to this trend in public discourse, Nikal, Savungaz, and other Indigenous activists formed the Mixed Indigenous Youth Forum Working Group (MIYF) to reclaim space in public discourse for the life stories of Indigenous youth of mixed backgrounds to speak for themselves and be heard amidst the ongoing debates.
MIYF has planned a multi-pronged forum this fall to raise the voices of mixed background Indigenous peoples, which includes five separate regional forum meetings across Taiwan throughout September and October, a national forum scheduled later in November, an online survey of Indigenous people’s experiences of discrimination and their opinions regarding legal reforms, and an ongoing social media campaign sharing the life stories of mixed background Indigenous peoples. Overall, MIYF seeks to make visible the diverse experiences of mixed background Indigenous youth who face both discrimination in Han settler society and exclusion within Indigenous communities. At the end of this forum project, MIYF will compile their findings and life stories shared throughout into a final report. As legal debates continue regarding Status Act reform, MIYF hopes that lawmakers as well as the Taiwanese public will be able to hear and consider the lived experiences of mixed background Indigenous peoples and their stories.
Controversy Surrounding Pingpu Recognition
ONE SUCH life story that has already been shared on MIYF’s Facebook page as part of their social media campaign is that of Bauké Dai’i, a self-proclaimed “illegal Indigenous” Kaxabu man. Bauké shared that despite having their own language and customs, the Kaxabu are not recognized by the government as Indigenous. Hence, Bauké and other Kaxabu people do not have Indigenous legal status simply because in the 1950s their ancestors did not register with the government as “plains Indigenous peoples” (平地原住民).
As renowned Amis documentary filmmaker Mayaw Biho explains, the term “plains Indigenous peoples,” coined in distinction to “mountainous Indigenous peoples” (山地原住民), is an early postwar bureaucratic invention of the KMT government that categorized Indigenous groups by administrative region of residence and currently includes the legally recognized Indigenous groups of the Amis, Puyuma, Thao, Kavalan, Sakizaya, Saisiyat, Atayal, Paiwan, and Rukai. The current number of plains Indigenous peoples is estimated at around 253,000. Dovetailing with the debate regarding using either Han surnames or traditional Indigenous names as the basis for qualification for Indigenous legal status is an upcoming decision by the Constitutional Court on recognition of the Siraya and other Pingpu groups as Indigenous that involves Article 2, Clause 2 of the Status Act. The Constitutional Court began hearing arguments on the case in late June, with groups opposed to Pingpu recognition publicly asserting that Pingpu peoples should not be considered plains Indigenous people and hence should not be given Indigenous legal status.
Bauké’s story as shared on a post on the Mixed Indigenous Youth Forum Working Group Facebook page
“Pingpu” refers to Indigenous peoples who have lived in the coastal plains regions of northern, western, and southwestern Taiwan and are thought to be heavily “Sinicized.” Pingpu peoples generally include the Kavalan, Ketagalan, Taokas, Pazeh, Papora, Babuza, Hoanya, Siraya, Makatau, and other groups like the Taivoan with a total estimated population of around 980,000, which is around 4% of the Taiwanese population and approximately 400,000 more than the estimated 580,000 Indigenous people in Taiwan with Indigenous legal status. Currently, the Kavalan are the only Pingpu group recognized by the government as Indigenous.
As with opposition to widening the scope of Indigenous recognition from Kolas and other Indigenous politicians serving in the Tsai administration, Icyang Parod, the head of the government’s Council of Indigenous Peoples, has taken a stance against recognizing Pingpu groups as Indigenous. Such arguments revolve around the view that Pingpu groups have assimilated to Han culture for a longer period of time and thus should not be considered Indigenous; furthermore, acknowledging Pingpu groups, according to Parod, would heavily strain government resources for Indigenous peoples. During the Constitutional Court hearing in late June, a measure proposed in a draft amendment five years ago to create a new category under the Status Act for Pingpu peoples to register as “Pingpu Indigenous people” that was never implemented was brought up again, along with the suggestion of establishing a specialized “Council of Pingpu Peoples,” though this suggestion was rejected by Siraya scholar Bavaragh Dagalomai. The Constitutional Court was supposed to come to a decision by late September, but has since announced that they will be postponing their decision until further notice.
In an interview, MIYF organizers emphasized that the name basis issue and Pingpu recognition are integrally linked. They hope that their multi-pronged forum can provide a space for mixed Indigenous voices to be heard amidst the multiple hotly debated legal cases this year aimed at reforming the Status Act for Indigenous Peoples.
Listening to Mixed Indigenous Voices
THE FIRST OF MIYF’s regional forum meetings will take place later this week on September 28th in Taichung, followed by meetings in Taipei on September 29th, in Taitung on October 2nd, in Hualien on October 3rd, and finally in Pingtung on October 21st. On the weekend of November 19th and 20th, MIFY will hold a national forum in Taipei to continue the dialogue on sharing the life stories and discuss how exactly the Status Act should be revised to better accommodate the broad range of life experiences and circumstances of mixed background Indigenous peoples in Taiwan.
In the end, Nikal and her husband decided to register their two daughters under her husband’s Han surname. This means that despite Nikal teaching them how to speak Amis and instilling in them an understanding of themselves as fully Amis and Han, Nikal’s two daughters do not have, under existing regulations, Indigenous legal status. But this decision is far from the end of Nikal’s family’s story.
Nikal’s story as shared on a post on the Mixed Indigenous Youth Forum Working Group Facebook page
In 2021, Nikal and her family moved to Seattle, Washington for her doctorate studies in law at the University of Washington. In an interview, Nikal shared that the timing of the move was fortuitous, as her two daughters would not have to immediately confront their Mandarin names and interface with Taiwan’s existing laws surrounding Indigenous legal status. Nikal and her husband want their children to decide for themselves when they are older whether or not they want to change their registered surname or formally use their traditional Amis name and claim Indigenous legal status. Nikal’s two daughters are currently five and three years old, are already very proud of their Amis heritage, enthusiastically wear traditional Amis clothing to their pre-school’s show and tell activities, and sometimes sing along to songs in Amis with their mother during online meetings with friends still in Taiwan.
As to what age her two daughters will be able to understand the significance of their multiple names, the system governing Indigenous legal status in Taiwan, the multi-layered settler colonial history upon which that system of governance is built, and how all of the above are intertwined in their lived experience, Nikal and her husband will have to wait and see. Nikal further explained that for her, a name can be a gift given by family members in hopeful anticipation of a baby’s bright future, but a name should not be used as a government threshold for determining one’s legal status. At the end of our interview, Nikal shared: “I hope my kids can embrace their diverse backgrounds and find ways to situate themselves in this big mess of a world.”