Courts and Indigenous reconciliation

Abstract

Case studies considering the ways Indigenous human rights have been implemented in different contexts can be a source of insight into the meaning of Indigenous rights and the role such rights play in securing justice for Indigenous peoples. This chapter considers Taiwan’s experience in implementing legal protections for Indigenous groups and focuses on the role of courts in promoting Indigenous reconciliation on the island. Concentrating on three key cases in Taiwan—the Smangus Beechwood Case, Paiwan Gun Case, and Bunun Hunting Case—this chapter identifies the persistence of two conceptual obstacles impeding full implementation of Indigenous rights in Taiwan. First, judicial decision-making in these cases reveals a preference for positive law over Indigenous oral tradition, despite the principle of multiculturalism enshrined in Taiwanese constitutionalism. Second, court proceedings reveal that non-Indigenous legal actors construct Indigenous cultures as “frozen in time,” which undermines the judiciary’s capacity to understand contemporary manifestations of Indigenous cultures. While there have been signs of progress, these two orientations in the Taiwan legal consciousness continue to strip the island’s Indigenous peoples of many of the protections afforded to them under international and domestic law.