A pedestrian passes the "husband and wife" trees on the unpaved road connecting the Smangus tribe with a nearby cypress forest June 24, 2006. (CNA)
By June Tsai
Three aborigines from the Smangus tribe in Hsinchu County were found guilty of theft April 18 for attempting to remove the trunk of a tree that fell during a 2005 typhoon blocking the remote tribe's only connection with the outside world. The three members of the Atayal ethnic group filed an appeal with the Taiwan High Court, which began hearing the case May 29. The incident has evolved into a controversy regarding the legal status of traditional aboriginal territories.
Amin Yosyo, Kokwang Kumay and Sangas Icyeh were each sentenced to six months in prison and fined around US$5,000 for violating the Forestry Act. The Hsinchu District Court verdict cited Article 52 of the act, which metes out penalties for "burglary of primary forest products or forest byproducts."
The Smangus trio pleaded not guilty, saying they were carrying out a resolution to remove the tree trunk that was made at a village meeting. In a May 1 statement posted on a Smangus blog accompanying launch of a public petition, the villagers accused police and Forestry Bureau staff of stealing resources from within the tribe's traditional territory.
It also outlined villagers' version of events. This was that the September 2005 typhoon caused a landslide, which blocked the road connecting Smangus with the nearest township, a three-hour drive away. Those residents sent to undertake repairs at the village meeting's behest found a fallen beech tree under the mud. They moved this to the side of the road. A month later, villagers discovered that Forestry Bureau staff had sawn the beech into pieces and transported them away, leaving the lower section of trunk behind. One week after that, the trio of tribesmen were appointed to bring back the remaining part, to be used to decorate the village. While doing so, they were apprehended by patrolling police and later put on trial.
The position maintained by the police and the Forestry Bureau under the Council of Agriculture, as stated in the court verdict, was that the fallen tree had been deemed national property. When the defendants attempted to transport it to their village, this constituted an offense under Article 52 of the Forestry Act. Since the site of the incident was about 12 kilometers from the village, the defendants' appeal to Article 15 of the same act--which stated that aboriginal people may take forest products located in their traditional territories for traditional needs--was invalid.
"Smangus people do everything in accordance with 'gaga,' the traditional code, and universal ethics. We also hold village meetings to deal with public affairs on the basis of the Tribal Treaty," the Smangus statement claimed. "The Smangus people have lived on this land for more then 20 generations. It is also our living here that helps protect the environment. Making the best use of windfall timber and other natural resources is the right and proper thing to do, and should not be compared to stealing."
Calling the verdict "unacceptable," the villagers were determined to take their fight to the highest legal body. They held a traditional ceremony May 7 to erect a stone tablet claiming authority over forests in their traditional territory and barring those they described as "Forestry Bureau staff and the police who do not abide by 'gaga'" from entering the area.
A meeting convened in Smangus May 19 and 20 to launch Pinhaban, a campaigning alliance, was attended by representatives of other Atayal villages as well as those from other aboriginal groups. The alliance said the state was ignorant of aboriginal culture and customs. "We have profound relationships with our traditional territories, relationships that are far beyond the understanding of Forestry Bureau staff," Yawiy Maray, chieftain of the Bubul tribe in Nantou County, claimed in the joint statement. The alliance asked for apologies from the state, demanding it right the wrongs done to the Smangus people and return of the beech trunk stolen by the Forestry Bureau, the joint statement continued.
"The ruling was a result of selective use of ROC legislation," Lahuy Icyeh, son of the Smangus chieftain and brother of one of the defendants, asserted May 25. He said that, in addition to emphasizing Article 52 of the Forestry Act over Article 15, the court seemed to exclude consideration of the 2005 Aboriginal Basic Act, which gave indigenous people the right to use resources within their traditional territories or conservation areas for nonprofit purposes.
Hsinchu prosecutors had sought to close the case by asking the three villagers to plead guilty and each pay a US$330 fine, Lahuy said. "It is not a question of money. The rights and dignity of the whole community cannot be bought with mere money," he said.
There was an overlap between national forestry land and traditional Atayal territory, Kuo Wu-sheng, head of the Forestry Bureau's Hsinchu office, said May 25. Kuo stressed that Article 15 of the Forestry Act stated that regulations relating to location, timing and choice of crops to be harvested in conservation areas should be made by the Forestry Bureau in conjunction with local aboriginal representatives. "Since these regulations have not yet been drawn up, we acted in accordance with current laws," Kuo claimed.
Aborigines should not be victims of indolence by the legislative and executive branches of government, Lahuy said, pointing out that, according to the ABA, regulations should be made, amended or abolished in accordance with the basic act within three years of its going into effect, a deadline which would be up soon.
The judiciary should not refuse to acknowledge aborigines' rights to collect and use forestry products just because the legislative process was delayed, the Cabinet-level Council of Indigenous Peoples stated in a May 4 press release, adding that it regretted that protection of indigenous peoples' rights to their lands was still neglected by Taiwan's judicial practices.
"We have become thieves on our own land," the Pinhaban alliance stated, "while the state and big businesses have unscrupulously destroyed the forest and exploited its resources, causing Nature to fight back with successive disasters." The alliance held a demonstration in Taipei May 30 aimed at reclaiming honor and rights.
This article is published in Taiwan Journal May 31, 2007.
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