台灣法律史上的原住民族：作為特殊的人群、地域與法文化

Indigenous Peoples in the Legal History of Taiwan: Being a Special Ethnic Group, Territory and Legal Culture

自古在台灣依其固有法律而生活的原住民族，首遭荷蘭人與西班牙人依歐洲的國際法宣示主權，成為應服從荷蘭領主並受其保護的屬民。鄭氏政權基於漢族的觀念，將治下的原住民族特殊化為「番」，且以土牛為界阻隔不受其治理、「非人」的原住民族。作為中原天朝的清朝，將熟番納入版圖並設特區安置之，以與漢人隔離，其後允許漢人承租熟番地，但因一切悉依漢人之法，熟番地最終落入漢人手中、熟番亦被漢化。清朝另以土牛界線隔離處在境外的生番，至1874年後始欲治理之，自此生番即一直受漢化威脅。
日治時期進入現代型國家的統治。平埔族人與在台漢人同屬本島人。非平埔族的原住民族被稱為「蕃族」，包括住在蕃地的蕃地蕃人與住在普通行政區域的平地蕃人，且蕃地中僅一小部份是供蕃地蕃人生活的保留地，故高山族原住民族的生活空間及成員均被縮減。高山族原住民的法律紛爭或犯罪與否，除少數的平地蕃人可進入或使用法院外，都由理蕃警察為自由裁量，卻因警察可依習俗為裁斷，高山族原住民反而某程度得依傳統過法律生活。
戰後國民黨政權認為原住民族的特殊性僅是居住於山地，故稱「山地同胞」，在統治機構及統治原則上與台灣其他人群趨向於一致。並依日治時國家所為的身分認定，決定誰是山地同胞、平地山胞，但已不承認平埔族。國民黨一直限縮原住民族的成員資格及生活空間，其法律傳統也不為國家法所看見或尊重。1990年代修憲後，原住民族成為政治及法律上主體，也有不少法律基於保障原住民族集體性權利而修正或制定，但在執行上仍有缺憾。唯有國家法能適度尊重或納入原住民族法律文化，法的統治才對其有意義。

For a long time, indigenous peoples lived alone in Taiwan according to their own laws. The Dutch and Spanish, the first foreign rulers in Taiwanese history, claimed their sovereignty over Taiwan in accordance with European international law, treated indigenous peoples, called “Formosan,” as subjects under European-style legal system. The Koxinga regime established by Han Chinese considered indigenous peoples with obedience to be barbarian, rather than civilized subjects, and regarded those indigenous peoples who were not ruled by this regime as non-human beings by setting up a boundary to block off them. The Qing Dynasty followed the attitude toward indigenous peoples mentioned above and thus divided them into “plains aborigines” (mature barbarian) and “mountain aborigines” (raw barbarian). The former were ruled by the Qing Empire but lived in a special area to segregate them from the Han Chinese settlers in Taiwan. The latter were not ruled by the Qing administration and resided in “outside borders.” However, because the Qing government allowed Han Chinese to lease the land of plains aborigines, their land was finally controlled by Han Chinese settlers, and plains aborigines were gradually assimilated by Han Chinese during the period of Qing’s rule in Taiwan. Furthermore, after 1874, the Qing Empire began to manage the land of mountain aborigines, who have suffered the threat from the assimilation of Han Chinese from then to the present days.
A modern state began to dominate the people in Taiwan after prewar Japanese Empire acquired the sovereignty of this island. Plains aborigines were merged into the Taiwanese, called “islanders” in the positive law. Mountain aborigines, generally called “aborigines” only during the Japanese period, resided in the “aboriginal land,” where was the land of “outside borders” in the Qing period. Some aboriginal land was incorporated into “ordinary administrative area” later, and those mountain aborigines who resided in the ordinary administrative area were called “plains mountain aborigines.” Furthermore, only a part of aboriginal land was reserved for the use of “mountain aborigines in aboriginal land” by the Japanese authorities. Apparently, the living space and the number of mountain aborigines decreased under the Japanese rule. Legal affairs of mountain aborigines were managed with by the discretion of special policemen for them with the exception that some of those mountain aborigines who resided in the ordinary administrative area had opportunities to contact the modern law because of their access to the modern court. Ironically, legal traditions of mountain aborigines to a certain extent became active in their daily lives because it was not necessary for the police to govern the legal affairs of mountain aborigines by the law in colonial Taiwan, which had was always modeled on the modern law shaped by the West.
In post-war Taiwan, the Kuomintang (KMT) regime considered mountain aborigines as a special group of peoples who resided in “mountain area,” namely aboriginal land in the Japanese period, and therefore called them “mountain compatriots.” Those citizens belonging to mountain compatriots were mostly treated in law the same as those of other citizens. However, some of mountain aborigines did not reside in the so-called mountain area after the Japanese rule in Taiwan. As a consequence, mountain aborigines were divided into “mountain-area mountain compatriots” and “plains mountain compatriots” in the positive law in postwar Taiwan. The existence of mountain aborigines has been completely denied in the law. Not surprisingly, the scope and living space of indigenous peoples were reduced again by the KMT regime. Under the policy of assimilation, the legal traditions of indigenous peoples were always neglected by the positive law in postwar Taiwan. Until the 1990s, there was a big change for the legal attitude toward indigenous peoples in Taiwan. The indigenous peoples have become an entity in politics and in the positive law after several amendments of the constitution of Taiwan in the 1990s. Many rights of indigenous peoples have been recognized in statutes of present Taiwan; however, the enforcement of these statutes is still poor. The idea of rule of law is not significant for indigenous peoples unless the legal culture of them has been adopted or respected by the law.