ROC's 2001 Aborigine Status Act

The legal embrace of indigenous Taiwanese

By William Wetherall

First posted 15 February 2007
Last updated 1 March 2007

Forthcoming

Nationality, territory, and aborigine status

Here I will present the 2000 Nationality Law of the Republic of China (ROC), in both Chinese and English, and with commentary on key words. First, though, let's look look at what ROC's Constitution says about nationality,

The following articles also examine nationality and ethnic status in ROC and PRC today.

The Republic of China as a state: The vicissitudes of recognition politics

Race in ROC's constitutions: China's rise and fall as an ethnic nation

ROC's 13 ethnic nations: Taiwanizing Sinified-Japanized aborigines

ROC's 2000 Nationality Law: Membership in a stateless nation

Race in PRC's constitutions: Principles of ethnic equality and autonomy

PRC's 56 ethnic subnations: The racialist revolution against racism

PRC's 1980 Nationality Law: A single nationality multiethnic state

What's in a name

Until 25 October 1971, for over twenty years after its government fled to Taiwan province from the mainland of China in 1949, the Republic of China (ROC) held China's seat on the United Nations. Even after countries like the United States and Japan switched their recognition to the People's Republic of China (PRC), ROC's maps continued to show Nanking (PY Nanjing, southern capital) as its actual capital. Taipei, the capital of Taiwan province, was merely its temporary capital.

Sun Yat-sen (Sun Wen, 1866-1925) overthrew the Qing Dynasty in 1911 and established the Republic of China, with its capital in Nanking, from 1912, which is taken as the first year of the ROC republican calendar. The north, however, remained a bastion of vestigial Qing power that continued to operate a government out of Peking.

In 1928, Sun's successor Chiang Kai-shek (1887-1975) sent an expedition north that seized control of Peking (Peiching, Beijing, northern capital). Though tempted to move his capital north, he kept it in Nanking and renamed the northern city Peip'ing (pacified/peaceful north).

In 1949, when the communist army occupied Peip'ing, Mao Tsu-tung (Mao Zedong) changed its name back to Beijing and declared the city the capital of the People's Republic of China (PRC). Until the 1980s, however, maps published in Taiwan continued to refer to the northern city as Peip'ing, and a few diehard ROC nationalists still refuse to call it Beijing.

Territorial imperatives

China Yearbook 1963-64 (Taipei: China Publishing Company, 1964), appearing fifteen years after the ROC government took refuge on Taiwan, features two foldout maps in the back. One is called "The Republic of China" and shows all of the mainland provinces, and Mongolia and Tibet, as part of ROC. "Taipei" on Taiwan is identified as the temporary capital. Nanking in Kiangsu (Jiangsu) province is shown to be the actual capital.

The second foldout map is called "Taiwan". It shows the main island of Taiwan and adjacent islands, including Penghu Lieh Tao (Pescadores Islands). Both had been part Japan between 1895 and 1945. They became Taiwan province when Japan forfeited them, de facto in 1945 and de jure in 1952, to ROC as the state that effectively controlled them after Japan's forces on Taiwan surrendered to ROC on 25 October 1945.

The "Taiwan" map also shows, in prominent boxes in the upper left corner, Kinmen Tao [Kinmen island] and Matsu Lieh Tao [Matsu islands]. Both are shown to be parts of Fukien [PY Fujian] province, but they were then, and remain today, under ROC control.

Kinmen, Matsu, and Penghu

In 1972 the United State, Japan, and a number of other states that until then had viewed ROC as "China" switched their recognition to PRC, and in doing so accepted PRC's view that Taiwan was one of its provinces. Fifteen years later, ROC lifted its nearly four-decade state of martial law and began to work toward an improvement of cross-strait relations.

ROC, determined to act like a state regardless of whether recognized as such by other states, now focused on consolidating itself as a sovereign entity. It eventually turned to constitutional reform as a way to clarify the territory it intended to govern and protect as an independent, totally self-governing body.

The 1994 3rd revision of the constitution included this paragraph as part of article article 9.

The State shall accord to the aborigines in the free area legal protection of their status and the right to political participation. It shall also provide assistance and encouragement for their education, cultural preservation, social welfare and business undertakings. The same protection and assistance shall be given to the people of Kinmen and Matsu areas.

The 1999 5th revision modified the last sentence in the above paragraph to clarify even further what ROC considered part of its dominion.

The State shall protect and assist the people of Penghu in addition to the people of Kinmen and Matsu.

The reference to "aborigines" is significant because it marks the start of more government attention to the needs of native tribes in the first year of the the United Nations Decade of the World's Indigenous People (1994-2003), following intense activism and publicity during the Year of Indigenous People (1993). The increased attention culminated in the 2002 Aborigine Status Act and related legislation and programs.

2001 ROC Aborigine Status Law With commentary on terminology
Japanese text The Japanese text is from XXX. English translation The English translation is from YYY. The [bracketed] titles are mine.
原住民身分法 Aborigine Status Law [ Indigenous peoples status law ]
中華民國九十年一月十七日總統 (90) 華總一義字第 9000009310 號令制定公布全文 13 條；並自九十年一月一日起施行 Presidential decree Hua-tsung-yi-tzu No. 9000009310 Promulgated 17 January 2001 (ROC 90) Effective retroactively from 1 January 2001 (ROC 90)
(立法目的) [ Purpose of law ]
第一條為認定原住民身分，保障原住民權益，特制定本法。本法未規定者，適用其他法律規定。	Section 1 Said act is promulgated for the recognition of the indigenous peoples status and protection of indigenous peoples rights. Unless herein provided, the relevant existing laws shall govern.
(原住民身分之認定) [ Recognition of indigenous peoples status ]
第二條本法所稱原住民，包括山地原住民及平地原住民，其身分之認定，除本法[ling4 口力]有規定外，依下列規定：一、山地原住民：臺灣光復前原籍在山地行政區域內，且[戸]口調[査]簿登記其本人或直系血親尊親屬屬於原住民者。二、平地原住民：臺灣光復前原籍在平地行政區域內，且[戸]口調[査]簿登記其本人或直系血親尊親屬屬於原住民，並申請[戸]籍所在地[郷]（鎮、市、區）公所登記為平地原住民有案者。	Section 2 The term "indigenous people" herein includes native indigenous peoples of the mountain and plain-land regions. Status recognition, unless otherwise herein provided, is as provided in the following: 1. Mountain indigenous peoples: permanent residents of the mountain administrative zone before the recovery of Taiwan, moreover census registration records show individual or an immediate kin of individual is of indigenous peoples descent. 2. Plain-land indigenous peoples: permanent residents of the plain-land administrative zone before the recovery of Taiwan, moreover census registration records show individual or an immediate kin of individual is of indigenous peoples descent. Individual is registered as a plain-land indigenous peoples in the village (town, city, district) administration office.
(身分之取得：婚姻關係) [ Acquisition of status: Marital relationship ]
第三條原住民與非原住民結婚，除第九條[ling4 口力]有規定外，原住民身分不喪失，非原住民不取得原住民身分。	Section 3 Unless otherwise provided in Section 9, indigenous peoples who marries a non-indigenous individual does not forfeit indigenous peoples status. However, the non-indigenous peoples do not acquire the indigenous peoples status.
(身分之取得：婚生子女) [ Acquisition of status: Children born in wedlock ]
第四條原住民與原住民結婚所生子女，取得原住民身分。原住民與非原住民結婚所生子女，從具原住民身分之父或母之姓或原住民傳統名字者，取得原住民身分。前項父母離婚，或有一方死亡者，對於未成年子女之權利義務，由具有原住民身分之父或母行使或負擔者，其無原住民身分之子女取得原住民身分。	Section 4 Children of intermarriages between indigenous peoples and non-indigenous peoples shall acquire the indigenous peoples status. 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 be granted indigenous peoples status. When rights and obligations of minor children in the event of the divorce of parents or demise of a parent from the foregoing intermarriages are to be placed under the execution or responsibility of the indigenous parents, the children who do not possess the indigenous peoples status shall acquire the indigenous peoples status.
(身分之取得喪失：收養關係) [ Acquisition and loss of status: Adoptive relationships ]
第五條原住民為非原住民收養者，除第九條[ling4 口力]有規定外，其原住民身分不喪失。未滿七[歳]之非原住民為年滿四十[歳]且無子女之原住民父母收養者，得取得原住民身分。本法施行前，未滿七[歳]之非原住民為原住民父母收養者，不受前項養父母須年滿四十[歳]且無子女規定之限制。前二項之收養關係終止時，該養子女之原住民身分喪失。	Section 5 Unless otherwise provided in Section 9, the adoption of an indigenous child by non-indigenous parents shall not cause the child to forfeit indigenous peoples status. Non-indigenous peoples minor under the age of seven adopted by childless indigenous parents over the age of 40 shall acquire the indigenous peoples status. Prior to the enactment of said act, the adoption of non-indigenous peoples minor under the age of seven by childless indigenous parents is not subject to the foregoing age and childless status limitations. Upon the dissolution of the relationship stated in the foregoing two paragraphs shall cause the adopted child to forfeit indigenous peoples status.
(身分之取得：非婚生子女) [ Acquisition of status: Children born out of wedlock ]
第六條原住民女子之非婚生子女，取得原住民身分。前項非婚生子女經非原住民生父認領者，喪失原住民身分。但約定從母姓或原住民傳統名字者，其原住民身分不喪失。非原住民女子之非婚生子女，經原住民生父認領，且從父姓或原住民傳統名字者，取得原住民身分。	Section 6 Children who were born out of wedlock by indigenous peoples shall acquire the indigenous peoples status. 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. 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.
(子女變更從姓或取得原住民傳統名字)
第七條第四條第二項及前條第二項、第三項子女從具原住民身分之父、母之姓或原住民傳統名字，未成年時得由法定代理人協議或成年後依個人意願取得或變更，不受民法第一千零五十九條及姓名條例第一條第二項規定之限制。前項子女嗣後變更為非原住民父或母之姓者，喪失原住民身分。第一項子女之變更從姓或取得原住民傳統名字，未成年時及成年後各以一次為限。	Section 7 A child taking the surname of the indigenous parent or having a traditional indigenous peoples name, as provided in Section 4 paragraph 2 and paragraphs 2 and 3 of the foregoing section, may acquire or alter said status through the arrangement of a statutory representative during the period child is a minor, or by option after child has reached legal age. Said right is not subject to the limitations of Section 1059 of the Civil Code and Section 1 paragraph 2 of the Full Name Registration Law. The child taking the non-indigenous parent's surname shall likewise forfeit his/her indigenous peoples status. Surname change or acquisition of traditional indigenous peoples name is limited to once during period child is minor and once after child has reached legal age.
(本法施行前未取得身分者之申請程序)
第八條依本法之規定應具原住民身分者，於本法施行前因結婚、收養或其他原因喪失或未取得原住民身分者，得檢具足資證明原住民身分之文件，申請回復或取得原住民身分。	Section 8 Individuals entitled to the indigenous peoples status as provided in said act who, prior to the enactment of said act, forfeited or failed to acquire their indigenous peoples status through marriage, adoption, or other reasons, may present documents adequately supporting their indigenous peoples status and apply for status recovery or acquisition.
(申請喪失原住民身分) [ Application for loss of indigenous peoples status ]
第九條原住民有下列情形之一者，得申請喪失原住民身分：一、原住民與非原住民結婚者。二、原住民為非原住民收養者。三、年滿二十[歳]，自願[抛]棄原住民身分者。依前項規定喪失原住民身分者，除第三款情形外，得於婚姻關係消滅或收養關係終止後，檢具證明文件申請回復原住民身分。依第一項申請喪失原住民身分者，其申請時之直系血親卑親屬之原住民身分不喪失。	Section 9 Under any one of the following circumstances, indigenous peoples are obliged to apply for status forfeiture: 1. indigenous peoples marries non-indigenous peoples 2. indigenous peoples are adopted by non-indigenous peoples 3. upon reaching the age of twenty, indigenous peoples chose to abandon indigenous peoples status. Indigenous peoples who forfeited status in light of the foregoing, except for the circumstance provided in paragraph 3, may recover their indigenous peoples status at the dissolution of said marriage or adoption upon the presentation of pertinent documents. Immediate kin of indigenous peoples who forfeited status as provided in paragraph 1 do not forfeit status during the forfeiture application.
(約定變更原住民身分) [ Agreements to change indigineous peoples status ]
第十條山地原住民與平地原住民結婚，得約定變更為相同之山地原住民或平地原住民身分；其子女之身分從之。未依前項規定約定變更為相同之原住民身分者，其子女於未成年時，得由法定代理人協議或成年後依個人意願，取得山地原住民或平地原住民身分。	Section 10 In the event of the intermarriage between mountain and plain-land indigenous peoples, parties concerned should agree to change status to either mountain or plain-land indigenous peoples; children of said marriage take the same status. In the event no status alteration agreement has been made, then their children may acquire the mountain or plain-land status or alter status through the arrangement of a statutory representative during the period child is a minor, or by option after child has reached legal age.
(身分取得、喪失、變更或回復之受理機關及應登記事項) [ Filing agencies and registration matters for status acquisition, loss, change or recovery ]
第十一條原住民身分取得、喪失、變更或回復之申請，由當事人[戸]籍所在地之[戸]政事務所受理，審[査]符合規定後於[戸]籍資料及[戸]口名簿內註記或塗銷其山地或平地原住民身分及族別，並通報當事人[戸]籍所在地之[郷]（鎮、市、區）公所。前項原住民之族別認定辦法，由行政院定之。	Section 11 Indigenous peoples status acquisition, forfeiture, alteration, or recovery applications should be filed at the local census office at the applicant's place of domicile. Applications are evaluated to determine consistency with the law, then registration or cancellation of the mountain or plain-land indigenous peoples status and tribe is noted in the census data and census registration book; said registration or cancellation data is then forwarded to the village (town, city, district) administration office at the applicant's place of domicile. There foregoing indigenous tribe recognition procedure is as determined by the Executive Yuan.
(更正登記事項之程序)
第十二條因[戸]籍登記錯誤、遺漏或其他原因，誤登記為原住民身分或漏未登記為原住民身分者，當事人[戸]籍所在地之[戸]政事務所應於知悉後，書面通知當事人為更正之登記，或由當事人向[戸]籍所在地之[戸]政事務所申請[査]明，並為更正之登記。	Section 12 In the case of census registration error, omission, or other factors resulting in the erroneous indigenous peoples registration or omitted indigenous peoples registration, upon the discovery of said error or omission, the local census office at the individual's place of domicile should notify the individual concerned and amend registration information, or the individual concerned may request the local census office to verify and amend registration information.

第十三條 Forthcoming.	Section 13 As provided in EAIP Section 19, the government, in providing indigenous students taking preschool and public school education the opportunity to learn their ethnic language, history, and culture, should plan, assist, and supervise the class schedule arrangement and teaching procedure of preschools, public elementary and high schools.
(施行日) [ Day of enforcement ]
第十四條本法自中華民國九十年一月一日施行。	Section 14 Said act takes effect on January 1, 2001.