Indigenous Independence, the Bottom Line of the Theory of Taiwan Independence

Taiwan island is 3.6 million acres in area, and 2.17 millions of it were 'nationalized'(included unregistered lands), about 60% of the total acres. The Indigenous lands were about 1.66 millions acres, but shrieked to 200 thousand acres after 1928 in Japanese colonial period(1895-1945), the exiled ROC government illegally inherited the same colonial land policy that appropriated indigenous lands.

In the predicament of losing their territories and resources, Indigenous peoples are struggling in the margin of Nation-states, facing their cultures and languages to be extinct, their socio-economic roles fallen to a state of stagnate.

Nowadays, according to the statistics from Ministry of the Interior of ROC, the indigenous peoples consisted 2% of the population in Taiwan, and 50% of their occupation are exclusively fell in the category of labor-intensified industry, compared to other parts of the population whose occupation were on average allocated 30% in each category of works. The role as the labor in bottom of the society is almost hereditary. The economic disparity between the indigenous people and total population has aggravated to more than 6.19 times in their disposable income, and 26 times in low- or high-income groups. More than 110 thousands families, 60% of indigenous families and over half of the indigenous population in Taiwan, one out of two, are living under the poverty line.

When we thought of Taiwan not a poverty region in contrast to the rest of the world, the whole indigenous peoples' economic situation is utterly under the line of international poverty line. They are the poverty nation in the dark corner of Taiwan.

Class mobility occurred only in dominant non-indigenous groups. This unequal structure aggravates the gap between the Han/indigenous people in economics and puts burden on these sole-occupation category, generally in bottom of the society, labor-intensified indigenous laborers. It made the whole indigenous peoples hard to reverse from the bottom, and thus hard to release from their fate of being enslaved from generation to generation.

The unjust conditions of "historical injustice," "class immobility," "political subaltern," "cultures and languages in extinction," those which indigenous peoples are facing are caused by successive exclusion from their lands and resources that were appropriated and inherited by a predator to another predator. In such a colonial deprivation under which the indigenous groups was harshly exploited, indigenous peoples as the master of Taiwan have an urgent duty to restore the justice of national emancipation.

In my opinion, the indigenous movements, included land-rights issues and self-awareness movements, are parts of the progress toward an independent sovereignty. Even Uyongu Yatauyungana's claim of indigenous self-governance in 228 incident(1947), should be encompassed into the sovereign movement. A theory on the sovereignty of Taiwan can not avoid the existence of the indigenous sovereignty without at the expense of legalizing the historical injustice.

[ST01]The Indigenous people are Sovereign Entity

James Anaya(2004[1996]:28-29) used to critique the noted German International law scholar Lassa Oppenheimer's rationalization of “family of nations” as a circular reasoning: why the indigenous people are not considered nations? Because they were not recognized by other nations. But, why other nations did not recognize their political organizations as nations? Because they are not qualified for nations!

In the historical context of Taiwan island, indigenous peoples had had intensive interactions with foreign regimes. In 16th C., the Japanese Shoguns had dealt with them on several occasions for the reason that Taiwan had become a necessary forwarding station at the routes toward the south sea islands, and the arriving of Portuguese in 1544 also propelled Taiwan islanders into the stage of international relations. Among these events, Toyotomi Hideyoshi used to send emissaries to ask for indigenous peoples to pay tributes, and then was rejected. Later, Tokugawa Leyasu received emissaries from Pangcah tribes by himself, and then sent his navy to conquer Taiwan, but failed again. Indigenous peoples kept their sovereignty intact in these encounters.

From late 16th C. To 17th C., Taiwan indigenous peoples were referred as "Vorstendom" in Dutch literature on the business affairs with Ming Empire(1368-1644), Spanish and Portuguese. Dutch used this word to refer “Duchy” in East Indies, and “vorst” as “prince” as its ruler. The treaties on business concluded by Dutch with every ‘prince’ in these places were based on the recognition of the relations from ‘Vorstendom’ to ‘Vorstendom’. Indigenous peoples, of course, were among these Vorstendoms with their own sovereignty.

VOC(Vereenigde Oostindische Compagnie) as a quasi-sovereign state and commercial magnate was authorized by Dutch parliament to expand the state’s sea power and foreign territories. It had armies and fleets, it represented its state to declare wars, to negotiate for peace, to occupy, to build fort, and to colonize, etc. By these measures, VOC expand Dutch's sphere of influence overseas. The treaties and negotiations it concluded and conducted with the indigenous communities also presumed the recognition of the indigenous sovereignty in legal state.

Indigenous peoples in Taiwan island has long established respective kingdoms, included Confederate of Eighteen Tribes(Seqalu) in the south, the Kingdom of Tjaquvuquvulj, and Kingdom of Middag in the central, Puyuma King in the east-south. In Dutch colonial period, there were villages in Mattau, Touamimigh, Favorlangh, Taccaareyan, Lonkjouw, Kazekalran, Tammalacaw, Tamacalauw, Vatan, and Turuboanwere, and they were tribal organizations similar to the prototype of state with thrive population and absolutely independent territories, militaries, legal systems and dipomacies. Particular examples such as Seqalu, Kingdoms of Middag and Puyuma were the most centralized state power, and all were recognized by international communities--King of Middag was called Keizer van Middag(Dutch), King of Middag(England), Keiser von Middag(Dutsuland) and Quata Ong(Chinese), they existed as independent 'states,' the others were also in the independent state of self-governance.

Regimes in China, America, Europe and Japan concluded different kinds of treaties with Taiwan’s indigenous peoples. These were formal diplomatic affairs with indigenous kingdoms that were independent from Qing Empire's territory in Taiwan whether in de facto or de jury senses from customs in international law, and these affairs thus must be seen as on the basis of excluding Qing's territory from indigenous territories. In other words, indigenous sovereignty were complied with the customs in international law that The treaties only made between nation-states or independent regimes. Before external powers invaded their territories, indigenous sovereignty perfectly fitted Hugo Grotius' definition of the state of national independence and national sovereignty.

[ST02]Indigenous Peoples, Indestructible Sovereignty

The using of uti possidetis must necessarily presume the existence of terra-nullius, and the evil of imperialism lay in its arbitrary designating terra nullius according to his own intention. The indigenous peoples as mentioned before were not only sovereign entities, but also the state sovereignty in international society. When Dutch concluded treaty of peace with the Seqalu, they recorded it as “to conclude a treaty of peace, expressing that the document was a formal treaty,” which ascertained that the document was a “formal treaty”.

Political sovereignty were defined by mutual exclusion from each other in their territorial spaces. In Taiwan’s history, Dutch concluded nine treaties of peace with different states of indigenous peoples, and none of them were real transition of sovereignty even in the ones that were concluded by forces after the Treaty of Mattau. Later in the events of Rover incident(1867) and Mudan incident(1871), American ambassador Charles W. Le Gendre and Japanese ambassadors were signed the treaties of peace, which proved indigenous peoples' qualification of 'conducting diplomatic action' as sovereign states. Who else in Taiwan island can exercise such a power and realize it in contacts with foreign regimes?

Consider the treaties of peace conducted after Mattau incident(1629) for example. Initially, The wars between the VOC and indigenous peoples in the southwestern Taiwan resulted in a provisional treaty which was concerned on returning relics of heads, bones, corpses and weapons, performing a ceremony of peace, exchanges of hostages. Later, the VOC attacked Mattau village again with Sinkan village, then forced them to sign an unequal treaty, the 'Mattau Treaty.'

Dutch described their victory and the treaty as the symbol of 'submission' of the indigenous peoples in their official records. However, from the perspective of the indigenous peoples, the act of planting trees to delimit in the treaty was a common ritual among indigenous villages in the condition of changing their titles of lands. Furthermore, the treaty did not describe the exact range of territory by a single word or graph, just resorting to subjective interpretations from each side without a common standard.

The content of Mattau Treaty was a treaty of peace in indigenous legal sense, not de facto transition of sovereignty. The claim of the transition of sovereignty was Dutch's unilateral acknowledgement and unfitted the principle of effectivity in international law.

Below is the content of the treaty between the VOC and Mattau, concluded in 1635.12.3 between four elders on Mattau's part, and Hans Putmans, the governor of VOC.

1. That all the relics which they still possessed, be it of beads or garments should be restored to us.

2. That they were to pay a certain contribution in pigs and paddy.

3. That every second year they should bring two pigs to the Castle on the anniversary day of the murder.

4. That they should give us the sovereignty over their country, and as a symbol thereof place at the feet of the Governor some little pinangand cocoa trees, planted in the earthen vessels in the soil of their country.

5. That they should promise never again to turn their arms against us.

6. That they should no longer molest the Chinese.

7. That, in case we had to wage war against other villages, they should join us.(Campbell, 1987[1903]: 119-120)

These terms seems like the disputes among neighbors or tribes in their common days, such as "planting some betel palm trees there as delimitation, returning you a chicken tomorrow for compensating the one bit by my dog yesterday." This can not be exaggerated to the “transition of sovereignty,” especially under the condition that Dutch forced the indigenous peoples to sign the treaty by armies after titular respect in the process of negotiation. Their unilateral perspective of 'submission' can only be seen as a way of building peaceful and cooperative relations from the view of indigenous legal system.

These treaties did not make indigenous peoples give up their sovereignty, so the claim that imperial expansion was legalized by 'principle of conquest' in international law to take indigenous sovereignty was unjust and ridiculous.

Latter, the VCLT(Vienna Convention on the Law of Treaties, 1969) has a clear regulation for that under what conditions does a treaty lost its effectivity. In article 51, titled Coercion of a representative of a State, reads “The expression of a State's consent to be bound by a treaty which has been procured by the coercion of its representative through acts or threats directed against him shall be without any legal effect.” And Article 52, titled Coercion of a State by the threat or use of force, reads “A treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations.” The Dutch's expedition against Taiwan indigenous peoples was complied with all these conditions.

[ST03]Incessant Resistances

Before the invasion of colonial settlers, indigenous peoples had their own political institutions, social structures, normative codes and traditional orders. They lived in the lands owned by their ancestors. They should have equal sovereign entities. The colonial sovereignty claimed by invaders unilaterally were actually without legality in their occupation, even without factual conquest until the coming of Japan colonization. Although the colonial regimes have come and gone, indigenous peoples have never ceased their fighting for their own sovereignty or survival facing these political hegemonies.

When Qing Empire entered into the western coast of Taiwan and set up an administrative agency, the eastern Taiwan was not under its de facto control. Qing was waging warfare in the region, and the indigenous peoples' resistances lasted well after the end of Qing's presence. Events such as Truku incident(1876), 'Olaw incident(1877), Battle at Thunderbolt(1896), Kasemeran no Cikasoan(or Cikasoan incident, 1908), these resistances not only highlighted the existence of another contesting power, but also shook the foundation of the colonial rules.

In Japanese colonial period, the wildfire of indigenous armed resistances had not been extinguished before 1941. After 1945, the resistance of Uyongu Yatauyungana and Yapasuyongʉ Yulunana in 228 incident with their claim of "indigenous self-governance" demonstrated that the indigenous sovereignty were never destructed by foreign invaders. Their struggles last to contemporary Taiwan. In Drifted Beech incident in Smagus(2005), the Ataya people equipped with guns stalled the cops who wanted to arrest tribal people for taking the driftwood for art creation. Indigenous hunters in Jianshi township, a mountainous township, used to ambush cops with guns sniping from a distant mountain. In 1970s, Yumin Tana, an Ataya youth, beheaded a cop for his constant harnessing and demolishing his village. The indigenous sovereignty is reluctantly lived and never disappeared.

According to the principle of international law, when a territorial dispute continues to the present days, it should be resolved by contemporary principle of international law.

In the case of Mabo v. Queensland(No. 2), High Court of Australia rejected the doctrine of terra nullius for conquest or colonization, and decided that indigenous titles for lands were valid. In other respect, even in the logic of 'the granting of lang rights based on sovereignty,' degrading the indigenous sovereignty has long become a hypocritical and unjust game in the international society. From the perspective of naturalist law, take Francisco de Vitoria's "On the Law of War" for example, he also denied the legality of imperial expansion and their claims that the lands in America were terra nullius, and thus can not be taken by occupation.

[ST04]International Society Reduced the Indigenous Sovereignty and Legalized the Conquest

International society has deliberately ignored the indigenous sovereignty in order to avoid disputes on colonized territories from past to present. It reduces the indigenous sovereignty to the internal sovereignty through an interpretation based on a resulted reality. This kind of claim sees lands owned by indigenous peoples as no-man's land and thus can be took according to the "right of conquest" in theory. Such a claim is also the parent causality of the discourses on the 'indeterminate legal state of Taiwan."

Since all men are equal, any 'full personality' can own land through occupation. However, the principle of terra nullius defined indigenous peoples as 'non-personality,' and thus indigenous lands as no-man's land. Any perspectives on Taiwan’s problem of sovereignty that inherited this benign principle also preserved the benefits of imperial expansion. Such a legal logic, like racial superiority theory, excluded all indigenous peoples from the category of 'human being.' Its brutal nature is similar to the speech 'I treat you as human beings' that emitted from the ROC ex-president Ma Ying-jeou’s mouth.

A narration that refers the principle of terra nullius to illustrate the transitions of colonial sovereignty in Taiwan is not only lack of legality, but also morally unethical. For it acquiesces in the appropriation of indigenous lands as an aboveboard affair. The same can be said to the ridiculous discourses that using this imperial perspective to demonstrate the indeterminate state of Taiwan. After all, if the power and right can be granted by utter violence and conquest, how can it be just and not be regressed in legal state? The theory of sovereignty of Taiwan in favor of the same perspective is surely unethical in the same way.

[ST05]Dual Indeterminate Sovereignty. Neither Qing nor Japanese Empires

When Taiwan island was unilaterally ceded to Japan by Qing empire according to the treaty of Shimonoseki, the indigenous sovereignty had not disappeared, because the eastern Taiwan was still out of Qing's control and kept in an independent state.

Many events proved this independent state. In 1867, American Navy expedited the island for the Rover incident, an event that some American sailors survived from a shipwreck were killed by Paiwan people, but without success. Later, the American ambassador Charles W. Le Gendre found that he must negotiate directly with Tauketok(or Cucitu) of Seqalu Kingdom, not Qing Empire, in order to conclude a treaty with the Peiwan people.

Later, the Qing Empire's policy of "developing the mountains and pacifying indigenous peoples," that is, using armies to invade the mountains owned by indigenous peoples and conquer them, still failed to gain full control of this region. In other words, when Qing signed the treaty with Japan, it did not actually control all the lands in Taiwan island whether in de facto or de jury senses, but it went so far as to cede these unauthorized areas to Japan. The Japanese colonial regime ruled indigenous peoples by forces and violence against international law, and after the end of WWII, when it gave up its so-called sovereignty over Taiwan island in Treaty of Peace with Japan(1951) only to leave Taiwan in the indeterminate state. However, indigenous peoples still hold their own sovereignty.

How the lands that were not under the colonial regimes’ rules can be ceded or gave up by them? In these historical conditions, the indigenous sovereignty in Taiwan faces 'dual indeterminate' state of sovereignty, and neither Qing nor Japanese Empire have the right to determine it.

Indigenous peoples never transfer their sovereignty to any regimes, and thus in fact should inherited the sovereignty over Taiwan island instead of being placed on the edge of mainstream political consciousness and taking advantage of their historical context in order to continue the benign legacy of colonialism. The sovereignty as a kind of power and right, must be placed on the acme of indigenous rights, and from it the right of lands and of resource distribution were derived. This sovereignty can not be put under the establishment of any other regimes.

The pursuit of supreme national sovereignty and the ultimate goal of self-governance is inevitably lead to indigenous independence. As the only true discourse on the Taiwan’s sovereignty, indigenous independence promoted the “historical justice,” “reversal of classes,” and a prospect political subject. A nation-state based on Taiwan’s indigenous peoples is the least moral standard for nation-building which located its context in the perspective of thousands years aboriginal history and seeks to solve the conflicts between differences. Bibiography Anaya, S. James, Indigenous Peoples in International Law, 2nd ed (Oxford ; New York: Oxford University Press, 2004[1996]) Campbell, Wm, Formosa under the Dutch: Described from Contemporary Records, with Explanatory Notes and a Bibliography of the Island (Taipei: Southern Materials Center, 1987[1903])