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Taiwan (Republic of China) has made incremental progress in recent decades towards
securing the lifeways and lands of the island’s sixteen officially recognized indigenous
Austronesian groups. Recently, the Taiwan government has turned to its judiciary and created a
system of indigenous courts designed to be more respectful of indigenous peoples’ cultural
differences and to help secure their judicial rights in Taiwan courtrooms. This study examines
the face-to-face encounters occurring within Taiwan’s special indigenous court units, or
yuanzhuminzu zhuanye fating, to answer the question: How do notions of indigenous culture and
state law emerge in and shape the interactions of courtroom actors and outcomes in cases
involving indigenous custom and tradition?
Drawing on seventeen months of ethnographic research, this study follows the
development and operation of the special indigenous court units in Hualien, Taiwan, a venue
overseeing a high volume of cases addressing local indigenous peoples’ customs and traditions.
In the special units, matters of ambiguity, encounter, and refusal were pivotal. Examining these
themes, this research shows that rather than supporting a pluralistic framework, Taiwan’s special
indigenous court units formed sites of significant state power that reinscribed Han Chinese
preferences and understandings of indigeneity. That power, however, was never complete.
Ambiguities in law, encounters with alterity, and strategic litigation created unanticipated
fractures that permitted new expressions of indigenous identity and critiques of state power. In these fractures, the special units intermittently emerged as extra-ordinary institutional spaces for
debate and experimentation with the capacity to reshape state and local understandings of
belonging, custom, and law.
More broadly, legal actors’ efforts to manage ambiguities in law, encounters between
indigenous and non-indigenous views, and local practices of refusal exposed the fragility and
instability of law in the modern state. Here, instability of law has consequences far beyond
immediate disputes as indigenous and human rights constitute a critical resource for Taiwan’s
enactment of sovereignty and serve as a mechanism for distinguishing the country from the
People’s Republic of China. As such, this study sheds new light on articulations of indigenous
identity, constructions of indigenous and human rights, performances of sovereignty, and
practices in inchoate legal institutions drawn from the East Asia context. |
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