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In 2005, Taiwan passed the Indigenous Peoples Basic Law. According to the Law, whenever the government or private parties engage in land development, resource utilization, ecology conservation, or academic research on the indigenous land, tribes, or public land adjacent to the indigenous land or tribes, the indigenous peoples or the tribes must be consulted, and their consent or even participation is required. In the designated indigenous peoples’ regions, the government is required by the Law to restore the traditional names of indigenous tribes, mountains, and rivers in accordance with the will of indigenous peoples.

Protection of indigenous people’s cultural heritage is governed by the general rules of the Cultural Heritage Preservation Act (Heritage Act) and its subsidiary legislation on indigenous heritage. In planning and implementing the preservation of any indigenous heritage, the authorities, owners of indigenous heritage, or the managing organs must consult the indigenous people to which the indigenous heritage belongs, the relevant tribes, or other traditional organizations.

Graves may be protected by the Heritage Act under the categories of “monuments, historic buildings, and commemorative buildings,” and indigenous villages are protected under the category of human settlements. In the course of construction or other land development activities, if any structure deserving of the designation of a monument, a historic building, a commemorative building, or a human settlement is discovered, the development must immediately stop and a report thereon must be made to the competent authority. Under the Heritage Act, national treasures and significant artifacts are generally prohibited from being exported from Taiwan.

Although not expressly addressed by any existing laws or regulations, the return of indigenous people’s human remains appears to be taking place in Taiwan and the supervisory branch of the government has called for consideration of a mechanism to facilitate the return.

I. Legal Framework

The Taiwanese constitutional amendments declare that the state safeguards the status of the indigenous peoples and preserves and fosters their cultures. These are among the basic national policies under article 10 of the Additional Articles of the Constitution of the Republic of China (Constitution Additional Articles).[1]

In February 2005, Taiwan promulgated the Indigenous Peoples Basic Law, a fundamental law in protecting and promoting the rights of the indigenous peoples.[2] The Law was most recently amended on June 20, 2018.[3] A series of other laws and regulations have been made concerning indigenous people and protection of their rights.[4]

However, there is no law comparable to the US Native American Graves Protection and Repatriation Act. Protection of indigenous people’s cultural heritage is governed by the general rules of the Cultural Heritage Preservation Act (Heritage Act) and its subsidiary legislation on indigenous heritage. The Heritage Act was first promulgated on May 26, 1982, and most recently revised on July 27, 2016.[5] On July 18, 2017, relevant central authorities jointly issued the Measures for Handling Indigenous Cultural Heritage (Indigenous Heritage Measures), which became effective on the same day.[6]

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II. Constitutional Amendments

Article 10(11) of the Constitution Additional Articles addresses cultural pluralism and the preservation of indigenous languages and cultures. It states that

[t]he State affirms cultural pluralism and shall actively preserve and foster the development of aboriginal languages and cultures.[7]

The constitutional amendments further declare the responsibility of the state to safeguard the status and political participation of the indigenous peoples and to guarantee and promote indigenous culture, economy, land, etc. Article 10(12) of the Additional Articles states that  

[t]he State shall, in accordance with the will of the ethnic groups, safeguard the status and political participation of the aborigines. The State shall also guarantee and provide assistance and encouragement for aboriginal education, culture, transportation, water conservation, health and medical care, economic activity, land, and social welfare, measures for which shall be established by law. The same protection and assistance shall be given to the people of the Penghu, Kinmen, and Matsu areas.[8]

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III. Indigneous Peoples Basic Law

A. Indigenous Peoples

The term “indigenous peoples” under the Indigenous Peoples Basic Law refers to the traditional peoples who have inhabited Taiwan and are subject to the state’s jurisdiction, including the Amis tribe, Atayal tribe, Paiwan tribe, Bunun tribe, Puyuma tribe, Rukai tribe, Tsou tribe, Saisiyat tribe, Yami tribe, Tsao tribe, Kavalan tribe, Taroko tribe, and any other tribes who regard themselves as indigenous peoples and obtain the approval of the central indigenous peoples authority.[9] Individuals who are members of any of those groups are referred to as “indigenous persons.”[10]

B. Indigenous Land

The Indigenous Peoples Basic Law restricts activities such as land development and resources utilization on or around the indigenous land, which must be agreed by the indigenous peoples. Indigenous land under the Law refers to the traditional territories and reservation land of the indigenous peoples.[11] According to article 21 of the Law, whenever the government or private parties engage in land development, resource utilization, ecology conservation, or academic research on the indigenous land, tribes, or public land adjacent to the indigenous land or tribes, the indigenous peoples or the tribes must be consulted, and their consent or even participation is required. Any relevant profits should be shared with the indigenous persons there.[12]

The Law further requires the government to respect indigenous peoples’ rights to choose their lifestyle, customs, clothing, modes of social and economic institutions, methods of resource utilization, and types of land ownership and management.[13]

C. Indigenous Peoples’ Regions

According to the Indigenous Peoples Basic Law, the Executive Yuan may designate indigenous peoples’ regions upon an application being made to the central indigenous peoples authority. These are areas where indigenous peoples have traditionally lived and that feature indigenous history and cultural characteristics.[14]

In the designated indigenous peoples’ regions, the government is required by the Law to restore the traditional names of indigenous tribes, mountains, and rivers in accordance with the will of indigenous peoples.[15]

Furthermore, before establishing national parks, ecological protection zones, recreation zones, and other resources management organs in the indigenous peoples’ regions, the government must obtain consent from the locally-affected indigenous peoples and formulate a common management mechanism.[16]

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IV. Cultural Heritage Preservation Act

The Heritage Act governs the preservation, conservation, promotion, and transfer of Taiwan’s cultural heritage.[17] Article 13 of the Act specifically addresses indigenous heritage, providing that any matters relating to the investigation, research, designation, registration, revocation, alteration, management, conservation, restoration, and reuse of indigenous peoples’ cultural heritage must be stipulated jointly by the central competent authority and the central indigenous peoples authority.[18] The Indigenous Heritage Measures were issued based on this article.[19]

A. Indigenous Heritage

The Heritage Act protects designated or registered tangible or intangible cultural heritage that is of cultural value from the point of view of history, art, or science.[20] Indigenous heritage protected by the Act is that designated or registered cultural heritage which has characteristics and values of indigenous culture.[21]

According to the Indigenous Heritage Measures, in planning and implementing the preservation of any indigenous heritage, the authorities, owners of indigenous heritage, or the managing organs must consult the indigenous people to which the indigenous heritage belongs, the relevant tribes, or other traditional organizations.[22]

B. Graves and Indigenous Villages

Tangible heritage protected by the Heritage Act includes monuments, historic buildings, commemorative buildings, and human settlements.[23] The Act’s enforcement rules specify items that may be protected as monuments, historic buildings, and commemorative buildings, which include graves, ancestral halls, temples, and churches, among other things.[24] Also according to the enforcement rules, indigenous villages fall into the category of human settlements.[25] Indigenous people’s human remains do not appear to be specifically protected under the Heritage Act or Indigenous Heritage Measures.

According to the Heritage Act, in the course of construction or other land development activities, if any structure deserving of the designation of a monument, a historic building, a commemorative building, or a human settlement is discovered, the development must immediately stop and a report thereon must be made to the competent authority.[26]

The Heritage Act prohibits construction work or other land development activities from damaging the integrity of the monuments, historic buildings, commemorative buildings, and groups of buildings protected by the Act.[27]

Monuments—defined as architectural works and their ancillary facilities built for the needs of human life that are of outstanding universal value from the point of view of history, art, or science—cannot be relocated or demolished unless such relocation or demolition is made for national security, significant public safety, or major national construction projects.[28]

C. Artifacts

Artifacts, as well as archaeological sites, historic sits, cultural landscapes, and natural landscapes and natural mementos, are also protected under the Heritage Act as tangible heritage.[29] The Act categorizes artifacts into three groups: national treasures, significant artifacts, and general artifacts.[30] Among those, national treasures and significant artifacts are generally prohibited from being exported from Taiwan.[31]

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V. National Policies

On August 1, 2016, the Taiwanese President Tsai Ing-wen, on behalf of the government, apologized to Taiwan’s indigenous peoples “for the pain and mistreatment the indigenous peoples have endured for the past four centuries.”[32] She also announced the establishment of the Presidential Office Indigenous Historical Justice and Transitional Justice Committee chaired by herself. The Committee is tasked with, among other things, drawing up legislation to “provide restitution, reparations, or compensation for violations against indigenous peoples and deprivation of indigenous rights.”[33]

Although not expressly addressed by any existing laws or regulations, the return of indigenous people’s human remains appears to be taking place in Taiwan. Recently, in July 2018, Taiwan’s Control Yuan, the supervisory branch of the government, released a report on a request from an indigenous group that was submitted to the National University of Taiwan seeking the return of their ancestors’ remains that university researchers had obtained in around 1960. Noting that the university had agreed to return the remains, the report found that there are no laws or regulations governing matters related to indigenous people’s remains, such as their excavation and preservation. The Control Yuan called for further consideration of a mechanism to facilitate the return of human remains to indigenous peoples.[34]

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Prepared by Laney Zhang
Foreign Law Specialist
March 2019


[1] Additional Articles of the Constitution of the Republic of China (promulgated May 1, 1991, last amendment promulgated June 10, 2005) (Constitution Additional Articles) art. 10, Laws and Regulations Database of the Republic of China, https://law.moj.gov.tw/LawClass/LawAll.aspx?pcode=A0000002, archived at https://perma.cc/H3AN-2LBD; English translation available at https://law.moj.gov.tw/ENG/ LawClass/LawAll.aspx?pcode=A0000002, archived at https://perma.cc/3PAX-WUUZ.

[2] Indigenous Peoples Basic Law (promulgated Feb. 5, 2005, last amended June 20, 2018) (Basic Law) art. 1, https://law.moj.gov.tw/LawClass/LawAll.aspx?pcode=D0130003, archived at https://perma.cc/5K6H-UVXY; English translation available at https://law.moj.gov.tw/ENG/LawClass/LawAll.aspx?pcode=D0130003, archived at https://perma.cc/9NCM-DSKU.

[3] Id.

[4] See generally Compilation of Laws and Regulations of Indigenous Peoples (Council of Indigenous Peoples, Executive Yuan eds., 2011) (in Chinese).

[5] Cultural Heritage Preservation Act (promulgated May 26, 1982, last revised July 27, 2016) (Heritage Act), https://law.moj.gov.tw/LawClass/LawAll.aspx?pcode=H0170001, archived at https://perma.cc/AGM6-3LLY; English translation available at https://law.moj.gov.tw/ENG/Law Class/LawAll.aspx?pcode=H0170001, archived at https://perma.cc/M2L9-57XW.

[6] Measures for Handling Indigenous Cultural Heritage (July 18, 2017, effective on the same day) (Indigenous Heritage Measures), https://law.moj.gov.tw/LawClass/LawAll.aspx?pcode=H0170135, archived at https://perma.cc/273P-9BA6 (Chinese only).

[7] Constitution Additional Articles art. 10(11).

[8] Id. art. 10(12).

[9] Basic Law art. 2.

[10] Id. art. 2

[11] Id.

[12] Id. art. 21.

[13] Id. art. 23.

[14] Id. art. 2.

[15] Id. art. 11.

[16] Id. art. 22.

[17] Heritage Act art. 2.

[18] Id. art. 13.

[19] Indigenous Heritage Measures art. 1.

[20] Heritage Act art. 3.

[21] Indigenous Heritage Measures art. 3.

[22] Id. art. 5.

[23] Heritage Act art. 3.

[24] Enforcement Rules of the Cultural Heritage Preservation Act (issued Feb. 22, 1984, last amended July 27, 2017) (Enforcement Rules) art. 2, https://law.moj.gov.tw/LawClass/LawAll.aspx?pcode=H0170004, archived at https://perma.cc/474A-J5XB; English translation available at https://law.moj.gov.tw/ENG/ LawClass/LawAll.aspx?pcode=H0170004, archived at https://perma.cc/KUK7-8TUF.

[25] Id. art. 3.

[26] Heritage Act art. 33.

[27] Id. art. 34.

[28] Id. art. 36.

[29] Id. art. 3.

[30] Id. art. 65.

[31] Id. art. 73.

[32] The Committee, Presidential Office Indigenous Historical Justice and Transitional Justice Committee, https://indigenous-justice.president.gov.tw/EN/Page/46 (last visited Feb. 26, 2019), archived at https://perma.cc/WJE2-X4PV.

[33] Id.

[34] Press Release, Control Yuan of the Republic of China (Taiwan), Ma Yuan Ancestors’ Human Remains Case: Control Yuan Urges National Taiwan University to Properly Handle the Return (July 12, 2018), https://www.cy.gov.tw/sp.asp?xdURL=./di/Message/message_1t2.asp&ctNode=2394&mp=1&msg_id=6617 (in Chinese), archived at https://perma.cc/XT7H-GHVP.

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Last Updated: 12/30/2020