In recent decades, the Taiwan judiciary has taken steps toward securing Indigenous people’s access to the justice system. These measures reflect a vision of access to justice framed narrowly on national courts and legal actors through the provision of free legal counsel, courtroom interpreters, and special court units dedicated to Indigenous people. These measures embrace a thin understanding of access to justice that overlooks important hurdles to both seeking and providing such access to Indigenous people. This article considers some of the key challenges of Indigenous people’s access to justice in Taiwan and the role of the judiciary in both perpetuating and addressing those challenges. It argues for a thicker understanding of access to justice that addresses the circumstances of contemporary Indigenous life and confronts the entrenchment of colonialism in the state framework. Field research in eastern Taiwan shows how aspects of normativity, spatiality, economics, order, language, and institutions, ensconced in a legal framework that reinforces an unequal power relationship between the state and Indigenous people, have shaped the character of access to the justice system and, in turn, continue to operate as obstacles to meaningful access to justice for Taiwan’s Indigenous people.

This article explores the challenges faced and practices developed by Taiwanese judges in cases involving Indigenous laws and lands to fulfil the objectives of Taiwan's Indigenous court units. Despite the official establishment of these units, local actors debated their real presences within Taiwan courts. Non-Indigenous actors administered proceedings, state laws and justice practices applied, the language of Han mainstream society dominated legal discourse, training for judges and prosecutors was minimal, and court unit proceedings generally replicated ordinary court procedures, rendering the units ambiguous as distinct institutions. While some judges ignored these ambiguities, other judges endeavoured to integrate Indigenous world views, ontologies and meanings into applications of new laws and procedures through varied strategies. In practice, these exploratory approaches constituted the Indigenous court units in Taiwan courts. While these strategies may, in certain circumstances, create possibilities for improving Indigenous recognition within the national court system, they could also work against Indigenous people in their bids for justice through the courts.

In this article I examine performances of Indigeneity in encounters between Indigenous people and the Taiwan legal system. Studying displays of Indigenous identities reveals the processes through which individuals and communities draw upon histories and practices to fashion themselves as Indigenous and engage with wider publics through performances and performative acts. Focusing on three encounters between Indigenous people and the Taiwan legal system, displays of Indigeneity in these encounters were multivalent and involved a repertoire of creative performative acts as Indigenous actors used court spaces, like the new ad hoc Chamber of Indigenous Courts, to perform identities that confounded essentialist conceptions of Indigeneity, introduced alternative ontological parameters, and assumed state governance responsibilities. These performances suggest a contextually situated engagement with the postcolonial state where Indigenous identities are anchored in the past and forward-looking, reinforce or challenge the category of Indigeneity, and themselves operate as techniques of power.

No abstract

No abstract