By: Francesca Kennedy
Published: May 19, 2025
“Imaynallan kashanki,” or in English, “how are you,” was just one of the simple phrases my grandmother would rehearse with me before I visited her hometown of Ancash, Peru—where most of the Andean population speaks only Quechua, an indigenous language. While Spanish, Quechua, and Aymara are all the official languages of Peru, it is a common misconception that Spanish is the universally spoken language.[1] Despite Peru and other Latin American countries housing large populations that are fluent only in indigenous languages, most United States federal courts are prepared only for Spanish speakers.[2] In recent years, thousands of indigenous immigrants from Latin America have found themselves in United States federal courts, unable to understand the proceedings in either English or Spanish.[3]
As Limited English Proficiency Individuals (“LEPs”), access to competent and effective court interpreters for indigenous defendants is necessary to protect their due process rights.[4] LEPs are individuals who speak a language other than English as their primary language and who have a limited ability to read, write, speak, or understand English.[5] Currently, there are 25.7 million LEPs in the United States.[6]
The United States Constitution guarantees LEPs the right to interpreters in criminal proceedings.[7] Federal courts have found this right to interpreters embedded in the Fifth, Sixth, and Fourteenth Amendments.[8] The fundamental components of due process include notice of a legal action and an opportunity to be heard.[9] Without access to adequate interpreters, LEPs risk not receiving proper notice if they cannot understand the proceedings initiated against them, nor can they be meaningfully heard if an interpreter is unavailable or inadequately interpreting the LEP’s statements.[10] Further, pivotal Supreme Court cases like those in Miranda v. Arizona and Brady v. United States hold that defendants must “knowingly,” “voluntarily,” and “intelligently” understand their rights and the agreements they enter.[11] Thus, without court interpreters, serious questions also arise as to whether LEPs are entering into agreements knowingly, voluntarily, and intelligently in federal criminal proceedings.
To address the threats to due process that language barriers create for LEPs, Congress passed the Court Interpreters Act (“the Act”).[12] The Act guarantees the right to an interpreter for LEP defendants in criminal and civil proceedings,[13] and specifies that the federal judiciary must rely on certified interpreters when a person in a federal proceeding speaks “only or primarily” a language other than English.[14] When a certified interpreter is not available, federal courts can turn to otherwise qualified interpreters.[15] Regardless of whether the interpreter is certified or otherwise qualified, they must have the “professional knowledge, skills, and abilities” to be highly proficient in both English and the LEP’s primary language.[16] The interpreter must also be impartial and interpret without any additions, omissions, or alterations that change the meaning of the defendant’s message.[17]
While protections are in place to protect the due process rights of LEPs in federal courts, a scarcity of indigenous language interpreters prevents indigenous immigrant defendants from receiving the same level of protection as LEPs who speak languages that the Act created certification programs for. Certification programs created under the Act only exist for Spanish, Navajo, and Haitian Creole.[18] Thus, federal courts must turn to otherwise qualified interpreters to ensure that indigenous language defendants comprehend their legal proceedings and can communicate effectively.[19]
Unfortunately, the quest for qualified indigenous language interpreters is a bleak one. Due to a shortage of interpreters, most interpretation is done over the phone by for-profit companies.[20] With few indigenous interpreters available, interpretation services must be arranged weeks or even months in advance.[21] Even then, the quality of interpretation service varies greatly. Indigenous interpreters who work over the phone are unable to understand body language and communicate as clearly as they would in person.[22] This disconnect can dramatically inhibit the proper interpretation of an LEP’s statements.[23] Despite speaking an indigenous language, interpreters can also be ill-equipped to explain difficult legal terms and concepts when there are significant differences between regional dialects,[24] or when a language lacks a direct translation—literally or conceptually—such as in Quechua.[25]
Effective indigenous interpretation is also hindered by many indigenous language interpreters’ inability to speak English, causing their interpretation to be translated through an additional translator.[26] Translating an indigenous defendant’s statements through two translators, rather than one, risks communicating a distorted version of the original message.[27] This also poses a question of whether interpreters are meeting the standards created under the Act, as it calls for the interpreter to be highly proficient in both English and the language they are interpreting.[28]
Further, while Mexico, Central America, and South America are filled with indigenous languages, the default in federal courts is to provide indigenous speakers with Spanish interpreters if courts determine that they understand Spanish enough or are from a primarily Spanish-speaking country.[29] These determinations are made despite facts showing that forty percent of Guatemala’s population speaks Mayan languages,[30] and that over the last several years, Zapotex, Mixtec, Ixil, and Popti speakers have been increasingly involved in federal court proceedings in the United States.[31] Misidentifying a LEP’s language is just as—or perhaps more— dangerous than providing them with an incompetent interpreter, or no interpreter at all. LEPs may enter a plea without fully understanding the nature of it because they speak little to no Spanish,[32] or may have their hearing postponed once they are identified as a non-Spanish speaker and the quest for an indigenous language interpreter begins.[33]
Lackluster interpretation, secondary interpretation, long wait times, and improperly identifying an indigenous LEP’s primary language threaten their due process rights in federal courts. The requirements of notice and an opportunity to be heard cannot be met in such conditions. To preserve the due process guarantees of indigenous LEPs in federal courts, the federal judiciary must seek ways to bridge the language gap, including by demanding programs that increase the number of qualified interpreters available and creating safeguards that ensure indigenous interpreters meet the standards outlined by the Act and the standards required by due process.
[1] See Ofer Tirosh, Peru Language Overview: Getting to Know the Languages of Peru, Tomedes (Feb. 15, 2024), https://www.tomedes.com/translator-hub/peru-languages.
[2] See Victoria Estrada, We Are Here: Mapping Indigenous Migrant Languages, Latino USA (Mar. 29, 2022), https://www.latinousa.org/2022/03/29/indigenouslanguages/ (noting that for years the U.S. Census has undercounted Indigenous migrants and grouped them into Hispanic or Latino speaking groups while their first and most used languages may actually be Zapotex, Chinatec, K’iché, or other indigenous languages in the Americas).
[3] See Jennifer Medina, Anyone Speak K’iche’ or Mam? Immigration Courts Overwhelmed by Indigenous Languages, N.Y Times (Mar. 19, 2019), https://www.nytimes.com/2019/03/19/us/translators-border-wall-immigration.html (stating that in 2018, a San Diego nonprofit immigrant legal service helped match over 2,000 clients from Latin America with indigenous language interpreters); Patty Gorena Morales, New York’s Dire Need for Indigenous Interpreters, Documented (June 17, 2022), https://documentedny.com/2022/06/17/indigenous-languages-interpreters-court-immigrants/ (noting that in 2021, a Los Angeles based non-profit arranged for more than four-thousand indigenous language interpreters in New York, including legal interpreters); Katherine M. Becker, Lack of Indigenous-language interpreters compounds border tragedy, Seattle Times (Dec. 19, 2022, 5:48 PM), https://www.seattletimes.com/opinion/lack-of-indigenous-language-interpreters-compounds-border-tragedy/ (speculating that in 2023, about forty-percent of newly arrived immigrants will speak indigenous languages like Mam and K’iche’, with limited commands of Spanish).
[4] See Ensuring Equal Access to Justice for Limited English Proficiency Individuals, Am. Bar Ass’n. (July 1, 2017), https://www.americanbar.org/groups/judicial/resources/judges-journal/.
[5] See id.
[6] See Language Access for Individuals with Limited English Proficiency, U.S. Comm’n on C.R., https://www.usccr.gov/meetings/2025/03-21-language-access-individuals-limited-english-proficiency (last visited Mar. 4, 2025) (noting that the LEPs statistics include all LEPs that are five years old or older).
[7] See Am. Bar Ass’n., supra note 4.
[8] See id.
[9] See Grace Benton, “Speak Anglish:” Language Access and Due Process in Asylum Proceedings, 38 Geo. Immigr. L. J. 454, 459 (2020).
[10] See id. (arguing that LEPs cannot receive notice nor enjoy a reasonable opportunity to be heard without interpretation).
[11] See Sarah Moya, Language Barriers and Cultural Incompetency in the Criminal Legal System: The Prejudicial Impacts on LEP Criminal Defendants, 49 Fordham Urb. L. J. 401, 404-05 (2022).
[12] Jeffrey Archer Miller, Interpreting the Court Interpreters Act: A Practical Guide to Protecting the Rights of Non-English Speaking Criminal Defendants, 2 Crim. L. Pract. 25, 27 (2014).
[13] See Moya, supra note 11, at 413.
[14] 28 U.S.C. § 1827(a)-(b).
[15] 28 U.S.C. § 1827(b)(2).
[16] See Interpreter Skills, U.S. Cts., https://www.uscourts.gov/court-programs/federal-court-interpreters/interpreter-skills (last visited Feb. 25, 2025).
[17] See id.
[18] See Interpreter Categories, U.S. Cts., https://www.uscourts.gov/court-programs/federal-court-interpreters/interpreter-categories#a2, (last visited Feb. 25, 2025).
[19] See 28 U.S.C. § 1827 (b)(2).
[20] See Rachel Nolan, A Translation Crisis at the Border, The New Yorker (Dec. 30, 2019), https://www.newyorker.com/magazine/2020/01/06/a-translation-crisis-at-the-border.
[21] See Medina, supra note 3.
[22] See id. (suggesting that understanding body language is an important component to interpretation work).
[23] See id.
[24] See id. (contending that even interpreters with a basic grasp of indigenous languages may not be able to navigate significant differences between regional dialects).
[25] See Moya, supra note 11, at 419 (explaining that translating abstract legal concepts that arose in criminal proceedings to an Ecuadoran defendant in Quechua was difficult because there is no literal or conceptual equivalent in Quechua).
[26] See Medina, supra note 3.
[27] See id. (showing that it becomes increasingly difficult to explain legal concepts when information is being relayed through three languages, rather than two).
[28] See Interpreter Skills, supra note 16.
[29] See Gorena Morales, supra note 3; Laura K. Abel, Language Access in Federal Courts, 61 Drake L. Rev. 593, 624 (2013) (noting an instance where indigenous South American workers pled guilty and were sentenced to prison after being provided with Spanish interpreters, despite not speaking Spanish).
[30] See Nolan, supra note 20.
[31] See Medina, supra note 3.
[32] Cf. Abel, supra note 29, at 624 (stating that indigenous Guatemala and Mexico speakers pled guilty and were sentenced to prison, followed by deportation, when improperly being assigned a Spanish interpreter); Benton, supra note 9, at 454 (stating that a Guatemalan father, who spoke only Q’eqchi, incorrectly signed papers regarding his daughter’s health when she was taken into custody after having the form translated to him in Spanish).
[33] See Nolan, supra note 20 (discussing how proceedings are delayed when migrants are labeled as “rare language speaker”).