Dalmo Dallari (1931-2022)

El Lissitzky, Proun Composition, c. 1922
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By MANUELA CARNEIRO DA CUNHA*

Dalmo left, without fanfare, an enormous legacy to indigenous peoples

 

Two articles in the 1988 Federal Constitution are decisive for indigenous rights. Both were inspired by Dalmo Dallari. He left us on April 6, when eight thousand indigenous people were gathered in Brasilia to defend the letter of these two articles.

Article 231 recognizes that indigenous rights to the lands they traditionally occupy are original: original means that the rights are prior to any law. They are therefore not “granted” by the Constitution, but “recognised” by this maximum law. That was what Dalmo explained to us, who at the time gave us an exotic example: the Swiss cantons kept their previous rights, originating when they united to form the Swiss State.

The Union, article 231 continues, has the duty to protect these lands and, to that end, demarcate them. The Bolsonaro government seeks to invert the terms and make believe that the rights of the Indians to their lands depend on the completion of the (long) demarcation process. They don't depend. The Supreme Court has already pronounced clearly and repeatedly on this. But this aberration has justified an unprecedented increase in the illegal occupation of indigenous lands and the attempt by the current National Indian Foundation (Funai) to shirk its duties.

Article 232 was also formulated by Dalmo. It was the result of experience in monitoring conflicts and losses that indigenous peoples tried to judge. In most cases, the judges did not admit the ability of indigenous people to file lawsuits. They alleged that it was Funai, and not them, that should file the lawsuit. Now, it was often Funai that was precisely the author of the losses, or, at least, connected to the authors. She would not go to court against herself.

It is notable that the indigenous people already had important rights assured. But the devil is in the details. Of what use were these rights if the indigenous people did not have direct access to justice, under the absurd pretext that they were protected? Throughout the 1970s, Dalmo had already protested that the Civil Code had instituted the relative capacity of the Indians as a negotiation protection, but that the guardianship was being, in the courts, interpreted against them. Nothing has changed though.

To resolve this obstacle, Dalmo Dallari came up with a very elegant solution in Article 232: “The Indians, their communities and organizations are legitimate parties to file a lawsuit in defense of their rights and interests, with the Public Ministry intervening in all acts of the process” . This article not only brought the help of the Federal Public Prosecutor's Office, but changed the indigenous people's access to justice from water to wine. No one contested it in the Constituent Assembly.

In one fell swoop, the indigenous people and their forms of organization, both traditional and innovative, had recognized legal capacity, and did not need any CNPJ. This was one of the arguments that allowed the Articulação dos Povos Indígenas do Brasil (Apib) to be legitimized as author, in the Federal Supreme Court, of the remarkable ADPF 709 of 2020, which sought to defend traditional peoples from Covid-19.

Dalmo quietly left an enormous legacy to indigenous peoples.

*Manuela Carneiro da Cunha, anthropologist, she was a professor at Unicamp, USP and the University of Chicago. Author, among other books, of Indians in Brazil (Company of Letters).

Originally published on the blog of Arns Commission.

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