Between Legal Indigeneity and Indigenous Sovereignty in Taiwan: Insights From Critical Race Theory

Abstract

Taiwan, home to over 580,000 Indigenous people in 16 state‐recognized groups, is one of three Asian countries to recognize the existence of Indigenous peoples in its jurisdiction. Taiwan’s Indigenous peoples remember their pre‐colonial lives as autonomous nations living according to their own laws and political institutions, asserting that they have never ceded territory or sovereignty to any state. As Taiwan democratized, the state dealt with resurgent Indigenous demands for political autonomy through legal indigeneity, including inclusion in the Constitution since 1997 and subsequent legislation. Yet, in an examination of two court rulings, we find that liberal indigeneity protects individuals, while consistently undermining Indigenous sovereignty. In 2021, the Constitutional Court upheld restrictive laws against hunting, seeking to balance wildlife conservation and cultural rights for Indigenous hunters, but ignoring Indigenous demands to create autonomous hunting regimes. In 2022, the Constitutional Court struck down part of the Indigenous Status Act, which stipulated that any child with one Indigenous parent and one Han Taiwanese parent must use an Indigenous name to obtain Indigenous status and benefit from anti‐discrimination measures. Both rulings deepen state control over Indigenous lives while denying Indigenous peoples the sovereign power to regulate these issues according to their own laws. Critical race theory (CRT) is useful in understanding how legislation designed with good intentions to promote anti‐discrimination can undermine Indigenous sovereignty. Simultaneously, studies of Indigenous resurgence highlight an often‐neglected dimension of CRT - the importance of affirming the nation in the face of systemic racism.