CONTEXT: INDIGENEITY IN TAIWAN

The earliest inhabitants of Taiwan, a mountainous island in the Western Pacific Ocean, belong to Oceania and have been present on the island for at least six thousand years (Bellwood Reference Bellwood1984, 113). They are related linguistically and culturally to Austronesians throughout the Pacific and Indian Oceans (Simon Reference Simon2018, 17). They presently form sixteen state-recognized groups and comprise approximately 2 percent of an island population that is over 95 percent Han Chinese (Executive Yuan Reference Executive2016, 10). For millennia, Austronesian peoples occupied Taiwan without interference until 1624, when the Dutch Empire established a colony in the southern part of the island. In 1661, Ming loyalist Koxinga evicted the Dutch colonists. Koxinga’s own forces were later expelled by the Qing Dynasty in 1683. During Qing control of the island, Chinese settlers overwhelmed plains-dwelling peoples but were unable to subjugate groups living high in the mountains. Qing authorities therefore divided the island’s Austronesian peoples into two groups, referring to plains-dwelling groups who submitted to Qing domination as “cooked savages” and the mountain-dwelling peoples who did not as “raw savages,” generally leaving the mountain-dwelling groups alone until the late nineteenth century.

In 1895, Japan annexed Taiwan under the Treaty of Shimonoseki, which concluded the First Sino-Japanese War and resulted in Qing defeat. Seeing the island as critical to its regional strategy, Japan worked to subjugate all of Taiwan’s Indigenous peoples. Once the mountain groups resisting Japanese authority finally surrendered, Japan became the first modern power to bring all the island’s Indigenous groups under state control. Adopting a practice similar to the Qing, Japanese authorities divided the Indigenous population into “plains peoples” and “mountain peoples” and classified the mountain groups into nine larger categories based on commonalities in language and culture. Regarding plains peoples as more civilized, Japanese authorities incorporated these communities into the legal system and gave them private property rights. Mountain peoples, on the other hand, were regarded as uncivilized and were not given such rights. Drawing on American models of Native American policy, Japanese administrators created small reserves for mountain groups. To facilitate effective governance of these peoples, authorities forcibly moved many mountain communities to lower elevations near military and police outposts. Presently, only the descendants of the nine mountain groups have Indigenous status in Taiwan today.

Following the Japanese defeat in 1945 in the Second World War, Taiwan came under the control of the Republic of China (ROC). From the perspective of many Indigenous groups, this change in power was merely a change in the identity of colonial rulers, “a classic case of recolonization,” where Sinicization replaced Japanization and included mandates to learn Mandarin Chinese and take Han surnames and customs (F. Chiu Reference Chiu2000, 117). Under the ROC, Indigenous classifications and the reserve system persisted, and the state continued to govern Indigenous peoples, whom they called “mountain compatriots,” differently from Han Chinese groups.

With democratization in the 1980s, which happened concurrently with the emergence of the global Indigenous rights movement, state laws and policies worked to improve formal recognition of Indigenous groups (Simon Reference Simon2015b, 698). In the 1990s, activists convinced lawmakers to change their legal status to “Indigenous” in constitutional revisions. In 1996, the Executive Yuan created the Council of Indigenous Peoples (CIP), a ministerial-level government body charged with administering Indigenous affairs on the island. In 2005, the Legislative Yuan passed the Indigenous Peoples Basic Law (IPBL), which outlined numerous rights for Indigenous people.Footnote ⁴ In 2008, six seats of 113 were designated specifically for Indigenous representatives in the Legislative Yuan. In 2013, the Judicial Yuan created the ad hoc Chamber of Indigenous Courts discussed later in this article. In 2016, President Tsai Ing-wen issued a landmark apology on behalf of the government to Indigenous people for four hundred years of oppression and exploitation. In 2017, the CIP issued regulations providing a legal foundation for defining Indigenous lands. During this period, unlike the Taiwan state, which lost its seat in the United Nations in 1971, Indigenous people have been permitted to attend UN events connected to what Ronald Niezen (Reference Niezen2003) calls global Indigenism (Simon Reference Simon2016).

As Taiwan democratized, Indigenous communities experienced rapid change. As late as 1983, only 6 percent of all Indigenous people lived outside their village communities, but, by 2009, that figure had jumped to 39 percent (Huang and Liu Reference Huang and Shao-Hua2016, 299). Now more than half of all Indigenous people live in urban centers (Hale Reference Hale2020). The majority of these urban dwellers live in industrial districts, finding work in semi-skilled labor, such as assembly line production, construction, truck driving, and other service jobs (Huang and Liu Reference Huang and Shao-Hua2016, 299–300). Reflecting this, many of the Bunun and Truku men in the communities where I conducted field research worked in the construction and trucking industries and would depart for weeks on end then return to the village for a short period before leaving again. Those remaining in remote or rural village communities typically occupy marginal regions with limited arable land and few opportunities for employment.

Despite the recent migration to urban spaces and decolonization efforts, Indigenous people in Taiwan continue to lag behind mainstream Han society across metrics of education, employment, income, health, and life expectancy. While Taiwan now has a twelve-year compulsory education system, 60 percent of Indigenous people aged fifteen and above have an education status of junior high school or lower (Lee et al. Reference Lee, Chia-Hui, Yu-Je and Lung-Yu2011, 62), and drop-out and deferral rates are higher for Indigenous students than for their non-Indigenous counterparts (Hou and Huang Reference Hou and Chia-Kai2012, 80). Unemployment rates are 1.5 to three times those of mainstream society (J. Chiu Reference Chiu2005, 1). Over 85 percent of rural Indigenous people occupy the lowest income brackets (Huang and Liu Reference Huang and Shao-Hua2016, 304), and household incomes are 40 percent lower than the national average (Musterhjelm Reference Musterhjelm2002). Employment is further threatened by the introduction of foreign laborers competing for jobs (Lee et al. Reference Lee, Chia-Hui, Yu-Je and Lung-Yu2011, 62). Indigenous people’s average life expectancy is 67.4 years, 7.9 years lower than the national average, and the mortality rate among the Indigenous population is 1.4 times higher than the Taiwan population as a whole (Cultural Survival 2002). These trends have led researchers to conclude “the general well-being gap between indigenes and the majority remains huge, and in some areas is expanding” (Huang and Liu Reference Huang and Shao-Hua2016, 304).

Significant threats to the preservation of Indigenous languages, lands, and cultures also persist. Five decades after the ROC government banned the use of Indigenous languages, today, many Indigenous people under fifty years of age cannot communicate fluently, if at all, in their mother tongue (Sterk Reference Sterk2021, 16). Indigenous lands likewise remain under threat as CIP regulations exclude Indigenous territories on private lands, effectively extinguishing Indigenous rights to those lands (Charlton, Gao, and Kuan 2017, 145–46). Legal protections for customary practices have been ambiguous and uneven in their implementation, often being seen as requiring substantiation by making bylaws (Simon and Mona Reference Simon, Awi, Bagchi and Das2013, 108). For instance, the IPBL outlines numerous protections for customary practices, such as hunting wildlife, collecting wild plants, and using water resources. As a “basic law,” however, it is not self-executing and requires enactments or amendments to other laws to bring its principles into practical and legal effect. To date, many laws have not been so amended, and the status of the IPBL relative to other domestic laws remains unclear—a point raised by the Taiwan Supreme Court in an appeal to the Constitutional Court in Tama Talum’s case (Focus Taiwan Reference Focus2017). Despite efforts to decriminalize and protect Indigenous customary practices, many Bunun and Truku individuals nevertheless regarded these as highly risky activities during my fieldwork (see also Simon and Mona Reference Simon and Awi2015, 12). In a dire assessment of the situation, Indigenous poet Monanen Malialiaves suggests that, with the domination of Han culture in Taiwan and in the media, it may take only twenty to thirty years for Indigenous identities to disappear and become completely Sinicized (qtd. in Maziere Reference Maziere2011).

The challenges facing Indigenous people were succinctly summarized in the testimony of one Truku defendant charged with unlawfully occupying land. He had coordinated the construction of a hunter’s lodge that would be used as a cultural center to transmit Truku customs and language to the next generations. While he claimed that the lodge was on his community’s traditional territory, prosecutors argued that it was built without authorization on national land that was condemned due to the threat of flooding by a nearby river. In June 2018, he testified to the Hualien District Court:

His statements indicate how inequalities materialize in the daily lives of Indigenous people as well as the continuing centrality of land and custom in Taiwan’s Indigenous communities.

This article considers Indigenous people’s access to justice within this broader history of colonization, the recent efforts to decolonize, and the milieu of cultural, economic, social, and spatial life in contemporary Indigenous Taiwan. Like other citizens, Indigenous people in Taiwan have a right to access national courts and legal actors, but the challenges of daily life pose substantial hurdles to meaningful access to the regulatory state, lawyers, courtrooms, and justice. A richer, more critical understanding of access to justice is necessary, one that addresses the unique challenges facing Indigenous people and confronts the entrenchment of colonialism in the state’s legal framework. The first consideration is the normative basis of international and domestic laws protecting Indigenous customary practices and lands.

NORMATIVITY: HUMAN DIGNITY, HISTORIC INJUSTICE, AND SOVEREIGNTY

Indigenous rights protections occupy an unsettled place in Taiwan’s legal framework. They have their roots in imperial and colonial governance technologies employing racialized systems of the categorization and management of Indigenous people (Bekhoven Reference Bekhoven2016). More recently, they have been shaped by the global Indigenous rights movement (Simon Reference Simon and Fell2017) and Taiwan’s pursuit for international recognition (Simon and Mona Reference Simon and Awi2015, 4). Unlike other geopolitical contexts, Indigenous rights in Taiwan do not have the support of treaties. Instead, these rights have accumulated unevenly over time in circumstances where colonial authorities and the regulatory state have controlled acceptable forms of Indigenous identity and behavior, initially constructing the island’s population as “One Chinese” (Wang Reference Wang2004, 306) and later determining appropriate and authentic displays of Indigenous difference (T. Chang Reference Chang2016, 4). The act of “according” recognition itself, which underlies these rights protections, ascribes an ability to set the rules of the game and entrenches an unequal power relationship between the state and Indigenous people (see Alfred Reference Alfred2005; Coulthard Reference Coulthard2014).

Under Taiwan’s civil law system, Indigenous people are mainly ruled by statutes promulgated by the Han ethnic majority. Indigenous traditions and justice customs are ignored in the state justice system as they have been neither codified nor systematically surveyed by the Judicial Yuan (Tsai Reference Tsai2015, 302). For the same reason, these practices are generally overlooked in Taiwan legal education, which privileges the state legal narrative influenced by civil law jurisdictions (such as Japan and Germany) and American common law (Chiu and Fa Reference Chiu, Jyh-Pin and Mitchell1994, 3), leaving Indigenous laws “concealed and submerged” (Borrows Reference Borrows2002, xi). Efforts to pass comprehensive protections for Indigenous people have resulted in laws that promote Indigenous cultural expression and autonomy, like the IPBL, but these protections have inspired few efforts to bring them into legal and practical effect. In cases of conflict with other laws, principles of statutory interpretation, like lex specialis, have further eroded protections afforded by the IPBL. Certain institutional structures, such as summary proceedings, have also disincentivized Indigenous defendants from raising cultural defenses. Further, processes of making Indigenous human rights locally relevant have resulted in significantly narrowing the scope of these rights protections (Simon and Mona Reference Simon and Awi2015, 11). In short, the framework of laws protecting Indigenous customs and lands in Taiwan, while showing signs of growth, remains troubled, leaving Indigenous individuals and communities with few legal resources to protect their customary practices and their legal counsel with few tools to represent them effectively.

A question arises as to why Indigenous rights appear to be in such an unstable position. Part of the answer may lay in their normative authority. The foundation for many core international human rights instruments resides in the dignity of human beings (Piechowiak Reference Piechowiak, Hanski and Suksi1999, 5). The preamble to the Universal Declaration of Human Rights, for instance, recognizes that “the inherent dignity … of all members of the human family is the foundation of freedom, justice and peace in the world.”Footnote ⁶ The International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights observe that their respective rights “derive from the inherent dignity of the human person.”Footnote ⁷ Dignity, situated in a Kantian idea of the intrinsic worth or value of all human beings, is a key element linking the rights pronounced in human rights instruments to human persons.

Indigenous rights locate their normative foundation on a different footing. Two of the most prominent international instruments relating to Indigenous peoples are the International Labour Organization’s (ILO) Convention no. 169 and the non-binding UN Declaration on the Rights of Indigenous Peoples (UNDRIP).Footnote ⁸ Both instruments ground their rights in historic circumstances. For example, addressing the earlier ILO no. 107,Footnote ⁹ the preamble to ILO no. 169 provides: “Considering that the developments which have taken place in international law since 1957, as well as developments in the situation of indigenous and tribal peoples in all regions of the world, have made it appropriate to adopt new international standards on the subject with a view to removing the assimilationist orientation of the earlier standards.” The preamble to the UNDRIP likewise states: “Concerned that indigenous peoples have suffered from historic injustices as a result of, inter alia, their colonization and dispossession of their lands, territories and resources, thus preventing them from exercising, in particular, their right to development in accordance with their own needs and interests.”

In grounding Indigenous rights in historic circumstances, these instruments disrupt the narrative of human rights derived from an inherent and shared trait of humanity. Taking the UNDRIP as the current international standard of Indigenous rights, these instruments secure such rights in a particular set of historic circumstances or experiences and so fall outside the corpus of human rights generally vested in human dignity. Karen Engle’s (Reference Engle2010) study of Indigenous rights, while not directly addressing legal foundations, similarly notes the ongoing difficulty of locating a coherent normative theory of Indigenous rights. Grounded in particular historic circumstances and encompassing a set of collective rights viewed at odds with the basic normative framework supporting the theory and practice of international human rights, Indigenous rights rest on an unsettled normative foundation.

This observation tracks an ontological shift within international law and UN agencies as the language of human rights has focused on individuals (or people), while Indigenous rights has generally concerned collectives (or peoples). This shift is also apparent in the ROC’s Constitution through a 1997 amendment that changed language referring to Indigenous “people” (yuanzhumin) to “peoples” (yuanzhuminzu) (Shih Reference Shih1999).Footnote ¹⁰ Human rights discourse has valued the welfare of individual human beings over the interest of the group or state, maintaining that rights “belong to any individual as a consequence of being human, independently of acts of law” (Piechowiak Reference Piechowiak, Hanski and Suksi1999, 3). Indigenous rights, by contrast, are of a collective character and are based on a set of rights that include self-determination, culture and cultural knowledge, land, government, autonomy, and special consideration by state authorities when formulating state policies—a conception of rights considerably removed from notions of individualism (Mazel Reference Mazel2009, 149). Based on “historically grounded communities rather than simply individuals or (inchoate) states,” Indigenous rights have challenged the individual/state “perceptual dichotomy” that has dominated human societies and shaped international legal standards (Anaya Reference Anaya2000, 48). Asserted collective rights likewise challenge notions of state sovereignty as they intrude upon matters of social and political organization within the presumed sphere of state authority.

Xiang Gao, Guy Charlton, and Mitsuhiko A. Takahashi (2016) draw attention to the processes of making international norms protecting Indigenous cultures and lands locally meaningful within domestic legal systems. Considering Taiwan, they find that the ROC government has resisted Indigenous rights to land and self-governance over territory and natural resources, instead concentrating efforts on securing Indigenous cultural practices, like hunting and fishing, evident in Article 21-1 of the Wildlife Conservation Act and Article 20 of the Controlling Firearms, Ammunition and Knives Act.Footnote ¹¹ From the perspective of the state, elevating cultural values is seen as being more consistent with liberal democratic notions of rights as associated with individuals, while granting additional autonomy to Indigenous groups outside of state structures directly threatens state sovereignty.

While the ROC government has focused on cultural rights over land rights and self-governance, protections for Indigenous cultural practices are by no means secure. Not only are such laws unsettled, as noted above, but their implementation is also subject to local attitudes. Visions of Indigenous cultural rights vary among the Taiwan judiciary. In court hearings, some judges have expressed deep reservations about Indigenous cultural rights. As one example, I traveled to the Hualien High Court in June 2018 with four Truku men who were charged with illegally collecting semi-precious stones on what they claimed was their traditional territory. They were acquitted by the Hualien District Court, but the prosecutors exercised their absolute right to appeal (the protection of double jeopardy in Taiwan does not prohibit prosecutors from appealing a not-guilty decision) (Su Reference Su2017, 218). During the appeals hearing, which took the form of a trial de novo, the presiding judge expressed ambivalence about the IPBL, describing certain provisions as “dangerous” (weixian) and questioning whether it was constitutional. Speaking to the judge later, he reiterated his view that the IPBL was, in his words, “too big,” in that it allowed for too much freedom for Indigenous people. He also questioned the normative authority of the IPBL, which in his view constituted “a law, but not a law in practice.”Footnote ¹² Ultimately, the judge granted an appeal to the Taiwan Constitutional Court for clarification about the status of the IPBL relative to the Criminal Code, which resulted in suspending the case pending the Constitutional Court’s determination in Tama Talum’s case.Footnote ¹³

While some judges expressed reservations about Indigenous cultural rights, other judges have been more sympathetic to these claims; nonetheless, they believe that their hands are tied because the IPBL has not yet been implemented through legislation. These judges have viewed the IPBL as subordinate to laws enacted or amended prior to the basic law. Ultimately, the laws displacing the IPBL have offered much narrower protections of Indigenous cultural practices. Still other judges have attempted to make the ambiguity of Indigenous cultural rights work in favor of Indigenous people by exploring intercultural and inter-legal approaches. For instance, some judges have attempted to read an Indigenous mindset into the intent element of criminal statutes. Others have adopted a balancing approach to create a review framework that incorporates Indigenous interests. Still others have worked to rethink the hierarchy of Taiwan law in a way that places the IPBL on the same level as, or even above, other statutes. Finally, some judges have turned toward natural law. In short, little consensus exists among the Taiwan judiciary about how to implement Indigenous cultural rights in the courts.

Without a secure set of legal protections, guarantees of access to lawyers and courts amount to little. This is not to say that there have been no successful assertions of Indigenous rights in Taiwan; indeed, there have.Footnote ¹⁴ Yet a critical dimension of the Taiwan legal framework is that it lacks consistency and stability for Indigenous legal protections, leaving these rights in an unsettled position relative to other forms of rights.

SPATIALITY: PHYSICAL, SOCIAL, AND POWER DISTANCES

Lisa Pruitt (Reference Pruitt, Braverman, Blomley, Delaney and Kedar2013) reminds us that spatiality is a crucial dimension of access to justice. One aspect of space is physical distance. Noted earlier, while approximately half of Indigenous people now live in urban areas in Taiwan, the remainder reside in rural or remote areas often far from lawyers’ offices and courthouses. The dearth of lawyers in rural communities and the surfeit of lawyers in urban spaces can make access to legal counsel difficult. Courthouses located in urban centers are likewise far from many rural and remote Indigenous communities. Some Indigenous persons, including those with whom I worked, live in circumstances where they must borrow vehicles and travel for hours to attend hearings at the local courthouse. Further, trials are spread across time, such that a single trial may be divided into multiple court sessions extending across months. Consequently, Indigenous defendants and litigants must make multiple trips to access courthouse spaces, month after month, until a trial is finished, placing a significant economic and time burden on those living in rural or remote areas that seek redress in the courts or are compelled to appear before them.

In Taiwan, physical space is important in another respect. Few court jurisdictions have the same conglomeration of Indigenous groups within their borders. This is significant because of judicial reassignment. Every two years, Taiwan judges have an option to apply for reassignment to a position at the same level in a different court. Every three years, they may apply for reassignment to a different level, such as being designated a supporting judge for a higher-level court. Common reasons for seeking reassignment include living environment, family issues, case type, and career opportunity. As judges move from one jurisdiction to another, however, they take with them knowledge they have acquired about the Indigenous groups in that region. Furthermore, courts in the counties with the highest concentrations of Indigenous people, including Hualien and Taitung Counties, are in the least developed areas of the island. For more urban-minded judges, these areas have undesirable living conditions, and they offer limited opportunities for career advancement, which constitute good reasons for seeking transfer. Legal actors recognize that judicial reassignment creates a significant hurdle to securing Indigenous people’s access to justice. As one lawyer framed the issue: “Every few years, judges can apply to transfer. So many judges go back to the big cities. So, all the judges in the case today are new. And that makes a difference because Indigenous cultures in different areas are different. So, we lose expertise when judges move from one area to another.”Footnote ¹⁵

Judicial rotation also occurs internally within the courts. Under Article 12 of the Measures for the Annual Assignment of the Judicial Affairs of Judges at All Levels, judges serve three-year terms on “specialized courts,” like the ad hoc Chamber of Indigenous Courts, at which point they may request to stay or rotate to other assignments.Footnote ¹⁶ Judges reported that cases involving Indigenous customary practices and lands, which themselves involve different issues, can be complicated and require a great deal of knowledge that is infrequently used. An appointment to this court unit is thus not always viewed as interesting or a career-advancing assignment. For these reasons and others, judges may seek to rotate off the ad hoc chambers, but, again, in doing so there is institutional knowledge loss. As a representative from the Judicial Yuan explained,

Space is not only a material phenomenon; it is also a social phenomenon, such that space and society are mutually constitutive (Sack Reference Sack1993, 326). Like other people living in rural regions, the sparseness of the areas where many rural and remote Indigenous communities reside in eastern Taiwan cultivate tight-knit communities, often with high levels of consensus on central values and morals (Albrecht and Albrecht Reference Albrecht and Albrecht2004, 435). These features of connectedness and consensus may be amplified through ongoing and intentional efforts to preserve customary ways of life and reclaim territory. Reflecting this, communities with whom I worked often traveled together to court proceedings to provide support and demonstrate solidarity before the judge, particularly in cases viewed as impacting the community’s lifeways or lands. For instance, in a civil case brought by a Bunun village against the government for damages caused by severe flooding, all available members of the village—older women and men, younger women and men, children, and babies—piled into a van together and drove two hours to the courthouse for each legal proceeding. Those who could not attend proceedings were kept abreast of case progress through close networks of kith and kin.

Centuries of subjugation and ongoing efforts to preserve customary practices have impressed in some rural and remote Indigenous communities a general ethic of state avoidance and a reliance on legal pluralism as people engage with both state law and customary law in their daily lives (Merry Reference Merry1988; Simon and Mona Reference Simon and Awi2015, 20; Tsai Reference Tsai2015, 339). One Seejiq man expressed this sentiment in this way: “The state legal system is not our system. We are forced to participate in the legal system. We must show up and participate in their foreign and expensive legal system. It is imposed on us.”Footnote ¹⁸ As such, self-identifying a legal need can itself be a hurdle as communities may not contemplate a state law solution to the problems they face.

Indigenous sociality also impacts lawyers’ interactions with their clients. Due to close community networks and shared interests in protecting customs and land, lawyers must sometimes deal with many community members when they represent Indigenous clients. For example, one lawyer represented a single Indigenous client accused of hunting illegally. Recognizing that the case potentially affected the entire community, other villagers worked to influence management of the case. What appeared to be a simple, low-level criminal matter soon became something resembling a class action lawsuit involving numerous interested, but not formally recognized, “parties.” To manage this, the lawyer ultimately formed a working group of villagers that communicated with the lawyer about the case and mediated between him and the broader group.

If space and society are mutually constitutive, then so too are space and power. This is evident in the litigants’ and judiciary’s varying mobilities. As mentioned above, Indigenous actors living in rural and remote areas are forced to travel, often with few means and at great expense, to urban-situated courthouses and legal professionals. It is not that courts are immobile. Taiwan judges, for instance, sometimes conduct site visits in Indigenous villages and lands. Judicial actors, however, firmly control decisions relating to place and travel. In recent years, efforts have been underway to address inequalities produced by the relationship between place and power. Training provided to judges by the Judicial Yuan now encourages them to conduct site visits, and judicial education programs include visits to Indigenous villages (Judicial Yuan 2018, 17–22). In 2017, the Judicial Yuan began discussions on the development of a circuit court system where judges would potentially conduct hearings physically in Indigenous communities (Judicial Yuan 2017a). Staff lawyers and paralegals at legal aid offices are also increasingly traveling to Indigenous villages to give presentations about legal developments and to meet with community members about potential legal problems.

Spatiality is thus deeply part of the story of access to justice for Indigenous people in Taiwan. People living in rural and remote areas must sometimes overcome substantial socio-spatial barriers to engage meaningfully with the Taiwan legal system. Lawyers can be few and far away, and courts are in distant urban centers. Judges may transfer to other jurisdictions or rotate to other court divisions, taking with them critical knowledge about Indigenous cultures and legal protections. Indigenous communities may adopt a sense of state avoidance, not viewing national courts as viable settings for resolving local problems as they rely upon customary law and justice practices. Compounding matters, persistently high poverty rates and marginality aggravate these challenges, making spatial access to courts and legal actors difficult.

ECONOMICS: ALTRUISM, COMPETITION, AND EXPERTISE

One recent measure for ensuring Indigenous people’s access to justice in Taiwan has been the provision of free legal representation. In 2004, legislative reform efforts resulted in the passage of the Legal Aid Act, which sought to provide legal assistance to the indigent or those unable to receive proper legal protections for other reasons through the establishment of a Legal Aid Foundation (LAF).Footnote ¹⁹ Under the Act, Indigenous persons could qualify for free legal assistance. Recognizing that Indigenous people were in a disadvantaged position in terms of culture, language, and socioeconomic status, the LAF and the CIP entered into an administrative entrustment agreement in 2013 to launch the Legal Aid for Indigenous People Program, wherein the CIP would subsidize legal aid to Indigenous persons (LAF 2019, 18; Taiwan Association for Human Rights 2013, 25). This program ensured that Indigenous people could receive free legal representation regardless of their income level.

While the LAF has twenty-two branches with small teams of attorneys and legal professionals, most legal aid cases are handled by private attorneys registered to provide such services through the LAF. Article 37 of the Attorney Regulation Act states that attorneys should participate in legal aid, legal services for the general public, or other charitable activities in society.Footnote ²⁰ There is thus a strong incentive, if not compulsory, for private lawyers to offer legal aid services. In 2019, 4,352 attorneys applied to become LAF legal aid attorneys out of a total of approximately seven thousand lawyers nationwide (LAF 2019, 41). Many of these private attorneys are solo practitioners or lawyers in small law firms (Hsu, Chiang, and Chang Reference Hsu, Chiang and Chang2020, 7). Lawyers reported to me that they took on Indigenous cases for a variety of reasons: to perform a public service, to ensure a regular workflow, to explore a different practice area, or due to personal interest in the issues. Many of these lawyers worked for free, or pro bono, through the LAF program; others worked for a reduced fee, sometimes called “low bono.”

While many legal matters present similar fact patterns and procedural issues, Indigenous cases can exhibit unique features that impose new demands on lawyers. These can include the need to contract third-party services, like experts and interpreters, or incurring costs related to traveling to and from Indigenous communities located in rural and remote areas. While small, activities like these are crucially important as they can have a positive impact on the outcome of cases (Herrera Reference Herrera2014, 8). Lawyers also have practical pressures that can make handling Indigenous cases challenging. Cases involving Indigenous customary practices often require specialized knowledge about both the customs and the special laws protecting them, such as the IPBL; the Wildlife Conservation Act; the Controlling Firearms, Ammunition and Knives Act; and the Forestry Act.Footnote ²¹

Since legal education in Taiwan does not provide such specialized training and, as of 2015, only four lawyers island-wide had Indigenous status, lawyers must learn this information on their own time and at their own expense (Hsu Reference Hsu2015, 92). The LAF provides special training for lawyers desiring to provide legal aid to Indigenous persons. In 2019, the LAF held eleven training sessions around the island, which consisted of lectures about legal protections for Indigenous people, mock trial activities, and visits to Indigenous communities, among other activities (LAF 2019, 29). But given the comparatively low number of cases perceived as addressing matters of Indigenous culture,Footnote ²² there has been little incentive for lawyers to take the time or expend the resources necessary to develop expertise in this area. One lawyer noted: “I want to help Indigenous peoples and spend time on the cases, but I must pay the rent, I must pay the staff. For practical reasons there is pressure to focus on the cases that pay more rather than the legal aid cases.”Footnote ²³

In a similar vein, studies show that lawyers tend to prefer to deliver pro bono services removed substantively and often geographically away from their usual practice settings, partly to avoid conflicts of interests and partly for the sake of novelty (Abel Reference Abel and Scott2011, 307). Many of the pro bono lawyers I encountered did not have Indigenous rights as their principal area of practice. They specialized in corporate litigation, landlord-tenant disputes, family law, and other civil and criminal matters, and many explained that their interest in Indigenous cases was primarily, sometimes precisely, because of its disconnection from their ordinary areas of specialization. Some of these lawyers attended the voluntary LAF training sessions; others did not.

While lawyers’ general litigation skills could be useful, many pro bono and low bono lawyers representing Indigenous persons had little prior experience in handling complex matters addressing Indigenous customs or lands. Moreover, duties of competence and diligence under Article 26 of the Code of Ethics for Lawyers notwithstanding, they had few economic or professional incentives to obtain robust knowledge about Indigenous cultures or legal protections.Footnote ²⁴ Consequently, as legal aid guarantees free legal counsel to Indigenous persons and low bono services offer reduced-rate representation, these provisions did not always ensure that lawyers had the resources or the incentives to provide Indigenous clients with the same quality representation as higher-paying clients. For these reasons and others, the LAF opened the Legal Center of Indigenous Peoples (LCIP) in Hualien County in 2018 as part of a broader support system to provide quality, culturally sensitive legal services to Indigenous people.

The establishment of the LCIP revealed another hurdle to Indigenous people’s access to legal services: other lawyers. During my field research, I had an opportunity to be associated with the LCIP, which had four highly qualified staff attorneys. The LCIP was a significant institutional development as it was created to act as a “lubricant” to help Indigenous defendants and litigants receive the best deals possible given the ambiguities in domestic Indigenous legal protections (Gerber Reference Gerber2017). As the LCIP established itself in Hualien, it encountered resistance from the local bar association. The bar association feared that the center would interfere in the local legal market by taking away cases, and thus income, from lawyers in private practice. The LCIP staff expressed concern that the bar association would impede their work. As one lawyer explained, “[t]he Hualien Bar Association has been trying to stop the Center from forming because they fear it will disrupt the market. They cannot formally stop it, but they can complain and potentially impact the effectiveness of the Center.” It was only after the LCIP gave assurances to the bar association that it would handle only a small number of cases involving complicated issues related to Indigenous cultures that the association ultimately dropped the issue.Footnote ²⁵

Economic costs also precede and accrue during court cases. Civil litigants in Taiwan, for example, must pay a court fee to bring a lawsuit. This fee is determined by whether the case involves proprietary or non-proprietary rights.Footnote ²⁶ There are also fees related to litigation, including charges for photocopies, video recording, transcripts, translation, publication in official gazettes and newspapers, daily fees, travel expenses of witnesses or expert witnesses, and compensation for expert witnesses.Footnote ²⁷ Losing parties must pay the fees that accumulate during the civil trial and appeals process. Of course, litigants who desire to hire their own legal counsel must pay attorney fees.Footnote ²⁸ Being in an economically disadvantaged position, many Indigenous people were not always in a position to pay these court, litigation, or lawyer costs. As such, they had comparatively limited access to the civil court system relative to mainstream society. These fees also had a reverberating effect on Indigenous people’s engagement with the new ad hoc Chamber of Indigenous Courts. As one judge explained, “[t]he Indigenous courts are officially in both the criminal and civil courts, both courts, but in reality, they are really mostly in the criminal because Indigenous people cannot afford the fee, so they typically do not go before the civil courts.”Footnote ²⁹

While recent measures have ensured Indigenous people’s access to lawyers, they have not sufficiently addressed lawyers’ lack of substantive expertise, or the incentives to obtain such expertise, in handling cases involving Indigenous customary practices, despite altruistic desires to provide quality legal services. The creation of the LCIP underscores the need for substantive knowledge about Indigenous cultures and rights in legal representation. It is not merely that Indigenous people are in a disadvantaged position in terms of culture, language, and socioeconomic status, they are also disadvantaged in terms of the uniqueness of their cases and the conflicts between their traditions and the legal system. Professional organizations can aid in this process, but they can also obstruct it, exemplified by the bar association’s resistance to the law center. Further, litigation costs can constrain Indigenous people’s access to courts. In short, securing Indigenous people’s access to justice involves more than simply connecting Indigenous persons to lawyers or permitting them to file lawsuits. It also requires critical reflection on the nature of these cases, the quality of legal services, and the costs that place courts out of reach due to Indigenous people’s disadvantaged socioeconomic position.

ORDER: FOREIGN JUSTICE, LOCAL JUSTICE

Many members of Indigenous groups in Taiwan look to custom and tradition as critical sources of identity and law. The many custom-guiding activities in Indigenous daily life transmitted through oral traditions—accessing natural resources, fishing, hunting, weaving, and so on—are well documented (see Simon Reference Simon2015b; Simon and Mona Reference Simon and Awi2015). It was, in part, this regard for custom and tradition, and the conflicts with state law that it engendered, that led the Judicial Yuan to create the ad hoc Chamber of Indigenous Courts (Judicial Yuan 2018, 1–2). Nevertheless, the Taiwan judiciary continues to ignore the authority of Indigenous customary law and justice practices (Tsai Reference Tsai2015, 296).

Recalling that some Indigenous communities engage in state avoidance and legal pluralism, disputes are sometimes handled internally. Research on Paiwan communities, for example, shows that Paiwan villages continue to rely on customary methods of resolving disputes. Grace Tsai’s (2015, 340–41) study of three Paiwan villages shows how families resolved family inheritance disputes through a customary “family council” system that consisted of senior members of the family, including the surviving parents; siblings, cousins, and extended family; and the elder cousins of both parties. She argues that elements of the Paiwan family council system could be integrated into mediation sessions held by Taiwan family courts in ways that would provide an alternative to costly litigation and could restore the harmony of the Paiwan community. Legal scholars have also noted that Article 757 of the Civil Code opens a window for the inclusion of rights in rem created by customs (xiguan) (Mona Reference Mona2020, 148).Footnote ³⁰ Nonetheless, Indigenous legal traditions remain largely excluded.

Visions of justice vary among Indigenous communities. Some Indigenous groups have called for a separate justice system mirroring the state system. Others have expressed a desire to codify their customary laws, a byproduct of colonialism. Tsai (Reference Tsai2011, 181–82) found, for instance, that members of a Paiwan village believed their custom of “vusam inheritance” should be codified into state law to govern inheritance disputes among members of Paiwan communities. One Truku community with whom I worked took a somewhat different approach. They attempted to “codify” their customary law of Gaya on their own, specifically as it pertained to hunting practices. Modeled on a similar document prepared by Tsou hunters as part of a pilot program with a local Forestry Bureau office, the Truku village codified Gaya into a written set of self-governance guidelines (Han Reference Han2020). They hoped this document would help them not only to negotiate with the ROC government and explain themselves to outsiders but also to pass on Gaya to the next generations. In this respect, their actions were a means of appropriating state law as a form of resistance using the authority of law to contest unfair treatment and unlawful arrests of Indigenous hunters (Merry Reference Merry2000).

Efforts to integrate or codify Indigenous customary laws into state law raise important questions. Articulating what are the customary practices and how they are made meaningful in contemporary life—and who gets to decide—are complex and highly contested issues (McMillan Reference McMillan2011, 181). Codifying customary laws may also enshrine practices that internally disadvantage certain portions of communities—for example, patriarchal and patrilineal customs that disempower women (Chen Reference Chen, Susan and Barbara2014). Making customary law “legible” within the state legal system may reduce Indigenous customary laws to general statements emphasizing legality and due process (Seider Reference Seider2020, 340), and it may simplify the rich complexities of Indigenous custom (Povinelli Reference Povinelli1993, 126–28). Indigenous customary laws and justice practices, once unwritten and flexible, may become more rigid and unyielding in the form of codified law (Miller Reference Miller2001, 14–15). Other issues raised by judicial and Indigenous actors during fieldwork included concerns about language ideology, as customary laws translated into the language of the non-Indigenous majority could lead to interpretations inconsistent with ordinary understandings and Indigenous people’s loss of control over their customary laws by non-Indigenous actors charged with interpreting them. Adding to these and other questions, there remains the underlying issue of incorporating Indigenous custom into a state system that perpetuates an uneven power relationship between Indigenous people and the state resulting from the entrenchment of colonialism.

Other geopolitical contexts with large Indigenous populations or substantial Indigenous lands situated in their territory sometimes encompass parallel or overlapping justice systems that serve Indigenous communities. The effects of social shifts and the unique history and cultural identity of Indigenous peoples have resulted in a stunning array of institutional structures, processes, jurisdictional parameters, and kinds of norms across the globe (see Cooter and Fikentscher Reference Cooter and Fikentscher.1998a, Reference Cooter and Fikentscher.1998b; Richland Reference Richland2008). State systems sometimes operate in partnership with tribal court systems. Lisa Pruitt and Bradley Showman (Reference Pruitt and Showman2014, 509) note that the Alaska Rules of Civil Procedure endorse local dispute resolution in civil cases by allowing parties to “agree to resolve disputes, subject to court approval, by referring them to tribal courts, tribal councils, elders’ courts, or ethnic organizations.”Footnote ³¹ According to Alaska Chief Justice Dana Fabe (Reference Fabe2013, 12), these tribal courts increase access to justice in ways that state justice administration cannot: “In many cases, tribal courts are handling relatively minor problems that would likely never reach the state court system, yet have a degrading impact on a community’s sense of security and well-being. And some of the risky behaviors they seek to address, especially in young people, might never come to the attention of state law enforcement.”

The Taiwan Judicial Yuan has begun to see the value of juridical institutions specializing in Indigenous issues, most notably in creating the ad hoc Chamber of Indigenous Courts. As described below, these institutions, however, are far from Indigenous self-managed or co-managed systems of dispute resolution. Recognizing this issue, the Judicial Yuan identified in 2017 a long-term goal of “setting up an Indigenous court in order to practice the spirit of judicial autonomy of Indigenous peoples” (Judicial Yuan 2017a, 36).

Local justice, even when informally structured, can be an effective means of ensuring access to justice. Grounded in people’s needs and capable of reflecting community understandings of justice and peacemaking, local justice enables Indigenous communities to mitigate problems of identifying legally cognizable issues, avoid costly travel and litigation in state courtrooms, and restore harmony among disputants in terms that are locally authoritative and meaningful. Concerns about privileging certain voices and internal oppressive practices, however, remain. Yet people exercise evolving local law traditions upon recognizing an injustice, and these traditions provide a powerful framework for dealing with the contradictions inherent in legal frameworks grounded in imperial, colonial, and modern rule (Mattei and Nader Reference Mattei and Laura2008, 202).

LANGUAGE: INTERPRETERS, TEXTS, AND PERFORMANCE

Indigenous people in Taiwan speak forty-two different dialects of Indigenous languages, one of which is severely endangered, four are critically endangered, and a further eight are deemed vulnerable (Taiwan Today 2017). Assimilationist laws and policies prohibiting the use of Indigenous languages, including compulsory education in Mandarin Chinese up to junior high school starting in 1968 (which was later expanded in 2014 to a full twelve-year education program), means that many Indigenous people under the age of fifty cannot communicate fluently in their mother tongue. In recent decades, the ROC government has taken steps to protect Indigenous languages. In 1998, the Ministry of Education adopted policies permitting the teaching of elective mother-tongue courses one to two hours per week in the third grade and higher grades in elementary school. In 2001, instruction in “mother tongue” for one hour per week became a required part of the elementary curricula from grade one through grade six and junior high. The results of these initiatives, however, have been mixed. For instance, Greg Huteson’s (2003, 30) survey among the Rukai of Maolin Township found that, despite these policies, younger Rukai are not fluent in the local dialects.

More recently, in 2017, the Legislative Yuan passed the Indigenous Languages Development Act.Footnote ³² This Act designates Indigenous languages as national languages and endeavors to secure Indigenous language use and heritage. While Article 97 of the Court Organization Act stipulates that the official language of Taiwan courts is Mandarin Chinese, Article 13 of the Indigenous Languages Development Act provides that Indigenous people may use their own languages in court proceedings and that courts shall arrange for interpreters.Footnote ³³ Further, Article 14 states that official documents of government agencies, schools, and public enterprises in Indigenous regions shall be written in regional languages. Currently, some government agencies are publishing official documents in Indigenous languages (Lee Reference Lee2021). Likewise, in 2019, the Legislative Yuan passed the Development of National Languages Act, which, under Article 11, creates a right for citizens to select the national language they wish to use in judicial proceedings.Footnote ³⁴ While these laws have helped secure Indigenous languages, the promotion of linguistic diversity is also part of Taiwan’s democratization and independence and serves as a resource to distinguish the island’s identity from that of Mainland China.

Accompanying these developments, the Judicial Yuan created a special interpreter program, which would provide courts with interpreters proficient in Indigenous languages. By the end of 2019, the CIP had a list of fifteen interpreters proficient in nine Indigenous languages to assist Indigenous people in Taiwan courtrooms (Judicial Yuan 2018, 29; LAF 2019, 26). Lawyers and Indigenous activists were quick to note the deficiencies in this program. One issue was that these interpreters were proficient in only a small number of Indigenous languages, leaving many languages and dialects unrepresented (see also Tsai Reference Tsai2015, 303). They also noted that interpreters often summarized testimony rather than providing verbatim translations. One lawyer recounted an instance where his Bunun clients provided court testimony in their mother tongue. During the proceeding, the court-appointed interpreter used brief words to translate their testimony, summarizing the main points, and did not attempt to capture the emotions and feelings his clients were trying to convey to the judge. This caused significant frustration for the Indigenous litigants who felt that their testimony was not properly represented.

The interpreter program is also used remarkably infrequently in Taiwan courts. A Judicial Yuan internal review found that, across all levels of the Taiwan court system, there were only twenty-four instances of using Indigenous language interpreters in 2014, twenty-six in 2015, and twelve in 2016 (Judicial Yuan 2018, 29–30). This finding led the Judicial Yuan to conclude that “[r]egarding the actual use of special interpreters in recent years, currently the use of interpreters is still not a widespread state of affairs” (30). On this point, one judge reported that, while he felt the interpreter program was critically important to the effective administration of Indigenous people’s cases, he could not recall a single instance when he had called for an interpreter. Recognizing the infrequent use of Indigenous interpreters in courtrooms, the Judicial Yuan has undertaken efforts to strengthen the interpreter program, including creating a special handbook designed to streamline and harmonize the use of interpreters.Footnote ³⁵

Certain cases in Taiwan courtrooms underscored the need for Indigenous interpreters. Cases involving Indigenous customary practices tended to draw more senior members of communities, who appeared as litigants, witnesses, or observers. The issue of language came out starkly in several civil proceedings I observed. Taiwan civil procedure requires witnesses to read aloud and sign an affidavit written in Mandarin Chinese affirming that they will tell the truth.Footnote ³⁶ In one case, senior members of a Truku community were asked to testify at trial; however, they could not read the Mandarin Chinese witness affidavits. The court clerk stood over the witnesses’ shoulders and read the text aloud in Mandarin Chinese, which they repeated. The witnesses then signed the affidavit and handed it back to the clerk. This process repeated itself in many civil cases involving Indigenous people. Being unfamiliar with state legal procedures, coupled with linguistic issues, one wonders about whether these individuals understood what they were affirming through their utterances and signatures, opening a question about their full and informed participation in the proceedings.

Noted above, Article 14 of the Indigenous Languages Development Act provides for the translation of official documents of government agencies into Indigenous languages. What constitutes “official documents” (gongwenshu) of these agencies is not defined in the Act. In the context of the Judicial Yuan and its administration of Taiwan courts, it is reasonable to presume that official documents would include the public documents issued and used by the judicial branch and the courts that it administers. Given that witness affidavits are required by law, they would perhaps fall within the meaning of official documents used by the Taiwan judicial system, although witness affidavits are not presently provided in Indigenous languages. Attention to documents is important because legal process is textually mediated at nearly every point of institutional action (Pence Reference Pence1997). Linguistic access to the texts circulating in the legal process, just like conversations in courtrooms, is significant to meaningful participation in, and understanding of, the court system.

Language issues in court cases involving Indigenous persons arose in yet another way: performances of Indigenous identities. Indigenous performances can serve as “sites of persuasion” as individuals and communities use such displays to get their versions of history and regimes of value acknowledged and disseminated to wider audiences (Morphy Reference Morphy, Karp, Kratz, Szwaja and Ybarra-Frausto2006, 471–72). These performances can be a powerful means of asserting, constituting, and expressing Indigenous identity in a historical context where the stakes of being identified and recognized as “Indigenous” have reached new heights with the emergence of a global discourse on Indigeneity and, in Taiwan, a local discourse on multiculturalism (Wang 2004, 306). These performances were part of claims for Indigenous recognition and respect for Indigenous lifeways while, at the same time, subtly pointing to the illegitimacy of the prevailing state legal framework.

In Taiwan courtrooms, parties and audience members sometimes used language to perform Indigenous identities. Many of these performances involved individuals who spoke in their mother tongue even though they could speak Mandarin Chinese fluently. Walking out of the courtroom with one Bunun litigant who had given his testimony in the Bunun language, he explained his reasoning: “I wanted the judge to understand that a different culture was in the courtroom; that he should be sensitive to my culture. That they have to use my language to talk about it.” Audra Simpson (Reference Simpson2014) refers to the insistence on such forms of alterity as “refusal,” wherein Indigenous peoples insist on their own ontological parameters. The litigant’s explanation suggests that his linguistic performance was necessary perhaps to establish a recognizable, “authentic” Indigenous identity for the Han Chinese judge, but it also indirectly challenged the assumed configuration of political and legal frames of non-Indigenous society in the Taiwan legal system. His insistence that the court use “my language” to discuss Bunun culture was a claim to an existence not a priori tethered to colonial norms and frames. Speaking Indigenous languages was a critical activity to remind non-Indigenous judges about Indigenous cultural differences and to uncover hidden colonial power structures.

The Taiwan judiciary has recognized that accommodating Indigenous languages in the courtroom is an important issue. Recent laws and policies ensure access to courtroom interpreters, but interpreters are proficient in only a small number of Indigenous languages and the overall system of special interpreters remains infrequently used. Further, the Taiwan judiciary has been slow to address matters of language in the texts through which legal process is mediated, presenting another potential obstacle for Indigenous people’s meaningful engagement with the legal system. Most intriguing, language has emerged as an important source of Indigenous identity in courtrooms. It is a tool used to remind judges about the existence of different cultural groups on the island and to expose the non-Indigenous visions of legal order dominating Taiwan courts. Attention to issues of language is thus significant for both practical and symbolic reasons in Indigenous people’s access to justice.

INSTITUTIONS: COURTS, JURISDICTION, AND PROCEDURES

Another step toward securing Indigenous people’s access to justice was the establishment of the ad hoc Chamber of Indigenous Courts (yuanzhuminzu zhuanye fating) in 2013. Article 30 of the IPBL contemplates the creation of a special court or tribunal for the purpose of “protecting Indigenous peoples’ rights and access to the judiciary.” The idea of developing specialized Indigenous courts was inspired by examples from Canada, New Zealand, and the United States, and it was motivated by an understanding that Indigenous groups have different views on law from the Han Chinese majority; therefore, protection of Indigenous rights could be better served by specialized courts familiar with Indigenous cultures, practices, and legal concepts (Bekhoven Reference Bekhoven2018, 217n899).

When the Judicial Yuan announced the ad hoc Chamber of Indigenous Courts, it emphasized that these chambers would ensure respect (zunzhong) for Indigenous people’s cultural differences and that it would help secure their judicial rights (sifa quanyi)Footnote ³⁷ (Judicial Yuan 2012; 2017a, 2; 2018, 2; Xiang 2012). The CIP summarized the purpose of the chambers as follows: “In terms of the traditional customs of Indigenous peoples and national laws, when these come into conflict, the special units can demonstrate respect for pluralistic cultures, traditional customs, and values, and provide Indigenous peoples with a proper legal evaluation in order to implement the provisions of Article 30 of the Indigenous Peoples Basic Law” (CIP 2015). These specialized court units could also provide consistency of judicial opinions with reference to Indigenous people (Tsai Reference Tsai2015, 303). Moreover, the action of creating specialized court units modeled on tribunals in other sovereign states is a performance, like migration policies and border inspections, by the ROC government, being a de facto sovereign state, to model recognized sovereignty (Friedman Reference Friedman2015, 52).

In January 2013, the Judicial Yuan set up the ad hoc Chamber of Indigenous Courts in nine districts in Taiwan. These specialized chambers were later expanded in September 2014 to cover all districts on the island, excluding the outer island and the Supreme Court (Mona Reference Mona2020, 139n1). Indigenous cases are assigned to the chamber according to the following rules: (1) criminal cases: all criminal cases involving a person having Indigenous status are tried by the chamber; (2) civil cases: cases involving litigants as Indigenous individuals, buluo (community), or Indigenous peoples involving one of a prescribed set of categories; and (3) cases not in a prescribed category involving one party who is an Indigenous individual, a buluo (community), or Indigenous peoples who has petitioned for trial by the ad hoc Chamber with the court’s approval (Judicial Yuan 2012).

The ad hoc Chamber of Indigenous Courts is, by design, an impermanent judicial body (Hsu Reference Hsu2015, 94). It is classified as a “specialized court” (zhuanye fating), which consists of special court divisions established for the betterment of work in response to societal changes and include such institutions as electoral courts and labor courts. This kind of court body stands in contrast to the “specialized district courts” (zhuanye difang fating), like the Intellectual Property Court, which consist of independent courts established on a permanent basis that require certification demonstrating competence in subject matter. The ad hoc Chamber of Indigenous Courts is intimately part of the national court system. Cases involving Indigenous persons arising in the chambers are decided in accordance with existing statutes rather than the customary laws embedded in the social context of Indigenous communities (Tsai Reference Tsai2015, 303). Indigenous customary law is thus recognized not “as law, but as fact” to be proved through evidence (Kerruish and Purdy Reference Kerruish and Jeannine1998, 153). As of 2015, only two judges island-wide had Indigenous status (Hsu Reference Hsu2015, 92). Together with four lawyers, only six legal professionals on the island had Indigenous status. Consequently, the ad hoc chambers are administered by legal professionals who are nearly exclusively ethnically and culturally Han Chinese. On this point, as Jane McMillian (Reference McMillan2011) observes, the ontological conflicts that arise from the imposition of a justice system linked to colonization, however, cannot be resolved through Indigenization of court staff. Additionally, as noted earlier, the language of law used in the chambers is Mandarin Chinese; Indigenous languages are, at best, secondary—languages into which legal discourses must be interpreted or translated. Further, the chambers do not occupy separate spaces within courthouses; rather, they share the courtrooms and facilities of national courthouse buildings.

Walking into the ad hoc Chamber of Indigenous Courts in Hualien, like entering other ad hoc chambers across the island, one is generally struck by the near total absence of any recognition or representation of Indigenous people or their cultures. This absence is made more noteworthy by the many representations of Indigenous people in other public buildings, like art exhibits in the public library and large murals on the walls of the local train station. The arrangement, decoration, language, symbolism, and temporalities within the ad hoc chamber reproduce Taiwan state ideals of law and order exclusively. Judges also do not typically announce that the special chamber is in session. All of these features culminate in giving the ad hoc chamber an ethereal presence in the courtroom.

During fieldwork, I encountered very different views about whether the ad hoc Chamber of Indigenous Courts was really “there” in any substantive sense. Some judges said that “the special units are definitely there working to help Indigenous people,” while others confided that “there are no special Indigenous courts.” Representatives of the Judicial Yuan maintained that “yes, the Indigenous courts are present in both the district courts and the high courts,” while lawyers representing Indigenous persons concluded that “no, the Indigenous tribunals do not really exist.” Some Truku community members believed that the chambers were a “good development” that “do many good things for Indigenous people,” while others living in the same community viewed them as vacuous and merely a political ploy to win future Indigenous votes. Legal scholars likewise expressed skepticism: “There is not enough to call them ‘special Indigenous courts.’ They are a different court in name only.” This was not merely an academic debate; there was much at stake in determining whether the chambers were really “there” as they adjudicated sensitive cases about Indigenous customary practices and lands, and they ostensibly represented an important step toward legal pluralism on the island.

The fulcrum of Taiwan’s ad hoc Chamber of Indigenous Courts is specialized training for judges and prosecutors. A persistent issue since Taiwan’s transition to democracy has been ignorance of Indigenous rights by the executive branches and justice departments (Simon and Mona Reference Simon, Awi, Bagchi and Das2013, 108). Pursuant to Article 12 of the Measures for the Annual Assignment of the Judicial Affairs of Judges at All Levels, judges assigned to the ad hoc chambers must complete twelve hours of mandatory training. This training includes lectures on Indigenous cultures, visits to Indigenous villages and the sites of important cases, mock trial-style activities, and presentations about Indigenous legal rights, among other activities (Judicial Yuan 2018, 19–22). Prosecutors serving in the chambers participate in a similar program, although local lawyers believe that prosecutors are becoming increasingly hostile to Indigenous rights claims despite this training. Participants noted that, in reality, this training amounted to little more than six hours of substantive training.

For reasons related to judges’ lack of interest in serving in the chambers, participants also observed that judges had little incentive to engage in subsequent voluntary training offered by the Judicial Yuan. One high court judge noted that none of the judges in his courthouse have attended the training program. Participants also noted that the training program tended to reuse the same experts, limiting voices and perspectives about Indigenous legal issues. Moreover, the training includes no examinations or other checks on competency at the end of the program.Footnote ³⁸ While many legal actors regarded specialized knowledge about Indigenous cultures and rights as a key distinguishing feature of the ad hoc chambers, the consensus was that such institutional knowledge was significantly lacking. In one Paiwan woman’s assessment of the situation, “[t]he judges are supposed to be trained in Indigenous cultures, but they never know anything.”Footnote ³⁹

Relatedly, the jurisdiction of the ad hoc Chamber of Indigenous Courts is wide, encompassing all criminal cases involving an Indigenous person as well as prescribed sets of civil matters involving Indigenous persons. This broadness was no doubt aimed at securing Indigenous people’s access to Taiwan courts. Yet, in important respects, it worked against that aim. Judges reported that the chambers’ wide jurisdiction meant that most cases handled by the chambers were quotidian matters, such as fraud or landlord-tenant disputes. As they explained, it was difficult for judges to recognize or give adequate attention to the intricacies of cases involving Indigenous cultural practices. One judge observed: “Judges generally do not pay attention to [cases involving Indigenous customary practices] really, because they are just mixed in with all the other cases. There is no time or motivation to separate these cases out from all the others.”Footnote ⁴⁰ Thus, while the chambers’ broad jurisdictional scope advanced the goal of securing Indigenous people’s judicial rights, it simultaneously worked against another goal of respecting Indigenous people’s cultures.

Other obstacles to administering Indigenous cases emerged in the ad hoc chambers. Judicial procedures, like “summary proceedings” (jianyi chengxu), created incentives that weakened legal protections for Indigenous customary practices. Under summary proceedings, accused persons may acknowledge guilt in exchange for a reduced or suspended sentence in cases where the sentence is three years or less (Kennedy Reference Kennedy2003, 115–16). While economizing legal proceedings, lawyers observed that summary proceedings incentivized Indigenous defendants to plead guilty in exchange for a reduced penalty due to the risks of relying on an ambiguous set of legal protections as well as the judiciary’s lack of substantive knowledge about Indigenous cultures. Walking out of the ad hoc chamber with one lawyer, he presented his clients’ dilemma this way: “Would you risk going to jail for years trying to prove a customary tradition when the judge does not understand the idea of culture, when you can take a guilty plea and get a suspended jail sentence, maybe pay a little fine, and go on?”Footnote ⁴¹ On this point, a recent review of criminal cases involving Indigenous hunters found that only 14 percent of hunters invoked cultural defenses available to them under the Wildlife Conservation Act or the IPBL (H. Chang Reference Chang2018, 48). Some local lawyers believe that summary proceedings present such a significant threat to Indigenous people’s access to justice that they advocate to other lawyers not to use these procedures.Footnote ⁴²

The Judicial Yuan has outlined several goals for the ad hoc Chamber of Indigenous Courts, which indicate their possible future trajectory (Judicial Yuan 2017b, 35–36). Short-term goals for the chambers include strengthening judicial training, developing a professional certification system to use in the selection of judges, and changing the bar examination to cover laws protecting Indigenous people. Mid-term goals include reviewing all cases handled by the chambers, creating the circuit court system mentioned earlier, establishing an Indigenous judicial advisory committee to assist judges, and addressing cultural issues arising in the courtroom through legislation. Long-term goals include investigating the feasibility of incorporating Indigenous customary laws into legislation and setting up an autonomous Indigenous court. It remains to be seen whether these measures will be implemented and whether they will be effective in securing Indigenous people’s access to justice.

Attention to the institutions adjudicating matters involving Indigenous persons and their cultures is thus another important element of access to justice. While the ad hoc chambers represent a step toward securing Indigenous people’s access to courts, and perhaps represent the beginning of a shift toward formal legal pluralism, these institutions replicate proceedings in the national courts in many respects, leaving their status as special court bodies ambiguous even to those practicing within them. Training for judges and prosecutors in the chambers is minimal, and there are few incentives to obtain additional training. Even with training in Indigenous cultures and legal protections, judicial attitudes toward Indigenous rights vary, with little consensus about how to implement them. Some groups, like prosecutors, exhibit signs of increased hostility toward Indigenous claims. Further, structures within the chambers, like jurisdictional scope, distract judges from ensuring respect for Indigenous cultures; special procedures, like summary proceedings, disincentivize defendants from raising cultural defenses. In short, as judicial innovations, like the ad hoc Chamber of Indigenous Courts, endeavor to secure Indigenous people’s access to justice, they also continue to privilege non-Indigenous conceptions of law and order and reinforce power imbalances between Indigenous people and the state.