Written by J. Christopher Upton
Image credit: Katratripulr community members demonstrating outside the Kaohsiung High Administrative Court in 2013. Image credit: Lai Ping-yu, 2013.
Taiwan’s democratisation transformed the legal and political position of its Indigenous peoples. Since the 1990s, Indigenous activists have secured constitutional recognition, new protections for cultural practices and lands, and growing institutional commitments to Indigenous rights. Among these reforms was the creation of specialised Indigenous court divisions or units within Taiwan’s national court system known as ad hoc Chambers of Indigenous Courts (原住民族專業法庭(股)).
Established in 2013, these specialised units were intended to make the court system more responsive to Indigenous peoples’ cultures, legal rights, and experiences. Yet they remained embedded within the national judiciary. Proceedings generally follow the same rules as ordinary district and high courts. They are conducted in Mandarin Chinese, not Indigenous languages, and they are administered largely by Han Taiwanese judges. This has created a core tension in the units. The state had established court units designed to recognise Indigenous difference, but Indigenous persons must still explain and sometimes perform that difference in terms the legal system can understand.
This project, which was published in IJTS (2022), examined what happened inside these emerging juridical spaces. Based on ethnographic research conducted in Taiwan courts between 2017 and 2018, the research showed that Indigenous litigants, witnesses, communities, lawyers, and advocates did not merely enter the court system as passive recipients of state recognition. They actively shaped how Indigeneity was understood and negotiated in the courtroom.
Performances of Indigenous identity in Taiwan courts took many forms. Some were highly visible displays. Indigenous litigants and their supporters arrived in customary attire, spoke Indigenous languages, or used other recognisable symbols of cultural difference. These were deliberate efforts to make Indigenous identity legible to judges and other state actors. Other performances were less visible. They included chewing betel nut, organising legal documents, and creating institutions to help Indigenous communities navigate the legal system. The variety of these displays suggested that Indigenous identity was not something a person merely possessed but was expressed, negotiated, and made meaningful in particular contexts.
Disjunctions and Discontinuities of Indigeneity
The experiences of a Bunun community from Fuxing (復興部落) in southern Taiwan illustrate the range of performances of Bunun identity and their fluidity in the courtroom. In 2012, severe flooding damaged homes and fields belonging to members of the Fuxing community. The community later sued the Kaohsiung City government and other agencies, arguing that failures to maintain a nearby riverbed had contributed to the damage.
When community members attended court hearings, they thought carefully about how they wanted to appear before the judge. They considered wearing formal Bunun attire but worried that doing so might reinforce views of Indigenous peoples as backwards or inferior. One community organiser summarised this concern succinctly: “Not traditional clothes. That makes us look ancient.” Instead, community members wore coordinated black shirts. The black colour drew on Bunun cultural aesthetics. Their shirts also had the Mandarin name of their community association, the “Self-Help Association of Fuxingli” (復興里自救會), embroidered upon them (Figure 1). The community members wanted the court to recognise their Bunun identity without reducing them to an idealised or static understanding of Indigenous culture. Their attire communicated solidarity and cultural difference, but it also asserted that Bunun identity belonged within contemporary Taiwan.
Taiwan Indigenous Television news coverage of the Fuxing community arriving at the Kaohsiung District Courthouse on 6 February 2015. Image credit: Taiwan Indigenous Television, 2015.
Fuxing community members conveyed a similar message through their practices in the courtroom. During the litigation, they assembled a thick, bound volume filled with diagrams, maps, photographs, transcripts, court orders, and legal filings, inundated with sticky notes, handwritten comments, highlighting, underlining, and additional notes. During hearings, they passed this volume around the courtroom gallery, using it to quickly locate documents and sometimes to correct lawyers about what had been previously said. During one hearing, a community member interrupted the opposing lawyer, raised the book into the air, and declared: “But you just said the opposite the last time. Look here!” pointing his finger at a page. The implied message was clear: We know this game of law, too. Here, Indigenous identity was not expressed through cultural difference alone. Legal knowledge itself became part of the performance as community members presented themselves simultaneously as Bunun and as sophisticated legal actors.
Other dimensions of Bunun identity performance were less deliberate. Older participants spoke Bunun and Taiwanese Hokkien in the courtroom gallery. Some chewed betel nut during proceedings. These were ordinary practices of community life, but inside the formal space of a courtroom, they acquired new significance. For brief moments, the courtroom gallery became an Indigenous space. Being many in number, speaking an Indigenous language, and consuming substances associated with Indigenous peoples, in many respects the community “occupied” this area of the courtroom.
These varied practices of Indigenous identity disrupted the assumption that there was only one recognisable way to “be” Bunun. In relating to the state through the court system, Indigenous identity appeared instead as layered, situational, and positioned within larger fields of power.
Language Games in the Courtroom
Language was another important tool for performing Indigenous identity in Taiwan courtrooms. In 2018, I attended a hearing in the Taiwan High Court involving a Tayan (Atayal) man appealing a conviction for illegally possessing firearms. The case concerned whether his guns qualified for an Indigenous cultural exception connected to hunting.
Members of his community had travelled to the courthouse to support him. Before the hearing, they sat in the hall and spoke to one another in Mandarin. When the hearing began, however, a female relative called as a witness did not respond to the judges’ questions in Mandarin. Instead, she sat silently and waited for community members to translate the questions into Tayan. She then answered in Tayan, with some Mandarin.
After the hearing, I asked the lawyer why she had done this when she understood and spoke Mandarin. He explained that simply telling the judges that their family member used the guns for customary hunting might not be enough. “So, they talked about using their mother tongue. They had heard that other people do this, so they used their mother tongue to make the court see their culture is different.” Their linguistic performance was strategic, but its significance went beyond merely demonstrating authenticity.
In another case, a Bunun defendant explained to me why he insisted on testifying in his own language. He said: “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.”
His statements raised a deeper question. If a Taiwan court is deciding what Bunun culture means, why should the discussion necessarily take place through the categories and language of the state? His statement staked a claim to an existence not a priori tethered to colonial norms and frames. This was not merely resistance. It was an act of what Audra Simpson calls “refusal,” and Justin Richland refers to as “insistence,” in which Indigenous persons redirect the levels of engagement with the state and claim their own ontological parameters. Speaking an Indigenous language was more than evidence of a cultural or ethnic identity. It was a performance that could alter the terms of the legal encounter itself. It interrupted the court’s normal operation and forced judges to reflect on the linguistic and cultural assumptions built into legal procedure.
The Indigenous court units made such interventions possible because judges serving in the units, or at least some of them, understood that this kind of reflection mattered. One judge explained to me that he understood why some Indigenous litigants used their language even when they spoke Mandarin well. He said: “They want me to know that they have a different culture, that they are not Han Chinese. I know this.”
Managing a Broken System
Not all assertions of Indigenous identity occurred through dramatic courtroom performances. In 2018, the Legal Centre of Indigenous Peoples (法律扶助基金會原住民族法律服務中心) was formally established in eastern Taiwan. The centre provided specialised legal assistance in cases involving Indigenous lands and cultural practices, including hunting, fishing, gathering, and natural resource use.
Its existence reflected a persistent gap between the legal recognition of Indigenous peoples and legal reality. Taiwan had adopted significant protections for Indigenous peoples, but many judges and lawyers had limited familiarity with Indigenous rights or cultural practices. Formal rights, therefore, did not necessarily translate into meaningful protection. The legal centre worked to bridge this divide. Its lawyers specialised in Indigenous rights and had close connections to Indigenous communities, and they consulted with representatives from Indigenous groups in the region. They trained other lawyers about how to litigate these cases. They visited Indigenous communities to explain legal developments and assist with paperwork (Figure 2). They also challenged legal procedures in the courtroom that worked against Indigenous defendants.
Lawyers at the Legal Center of Indigenous Peoples setting up a tent in the Dajili community in eastern Taiwan. Image credit: Legal Centre of Indigenous Peoples, 2018.
These activities were less visible than coordinated clothing or linguistic performance. They were practical performances of Indigenous identity, what Greg Johnson calls “bone-deep Indigeneity.” These were mundane performances to propel Indigenous peoples’ interests through state administrative law and to manage the failures of the legal system.
This complicates any simple opposition between Indigenous peoples and the state. State institutions can reproduce colonial relationships and unequal forms of authority. But they can also become spaces that Indigenous communities, lawyers, and advocates reshape, educate, redirect, and use strategically.
The Indigenous court units were therefore neither straightforward instruments of Indigenous recognition nor merely extensions of colonial power. They were contested institutional spaces, what I call “boundary institutions” in my recent book “Justice at the Boundaries,” whose meaning depended in large part on what people did within them.
J. Christopher Upton (歐啟祥) is an Assistant Professor of Anthropology at Temple University and Co-Director of the Temple Anthropology Laboratory & Museum (TALM). His research interests include Indigenous resurgence, human rights, and legal reforms in the Asia-Pacific region, with a focus on Taiwan, and he is currently researching community revitalisation efforts across five Bunun communities in central Taiwan. His first book, Justice at the Boundaries: Mediating Reconciliation and Legal Recognition in Taiwan’s Indigenous Courts, was published by the University of California Press (2026).
This article was published as part of the special issue on IJTS Research Article Competition Winners.