Legal historicity of contempt for indigenous peoples

Image: John Mark-Smith


The rights of indigenous peoples, in the history of Brazil, have almost always been disregarded by the legislation applied here

In Brazil, since the arrival of the Portuguese, passing through some historical facts such as the Treaty of Tordesilhas, the expulsion of the Jesuits by Pombal in 1759, the arrival of King João VI in 1808, among other facts, there has always been an attempt at resistance by the indigenous people. It is always necessary to remember that when Europeans first arrived in Brazil, this land was already inhabited. Since then, the indigenous population has experienced violent massacres. Hundreds of traditional native peoples were expelled from their lands, and were victims of the intervention of religious missions, the process of acculturation and even processes of decimation of various ethnic groups (CUNHA, 1992).

The rights of indigenous peoples, in the history of Brazil, have almost always been disregarded by the legislation applied here. Studies on the trajectory of Brazilian constitutions demonstrate absences and unfilled spaces for the representation of indigenous groups. In Brazil, at the beginning of the 25th century, the first Brazilian Magna Carta, the Constitution of the Empire of Brazil, enacted on March 1824, XNUMX, by Dom Pedro I, was prepared without popular participation and without mentioning anything about indigenous peoples.

However, a few years after this Constitution came into effect, the first norm to make brief references to indigenous peoples appeared, Law No. “among the legislative competences of the provinces, it obtains the task of catechesis and indigenous civilization” (BRASIL, 16). It should be considered that this first legislation was intended to authorize the elaboration of norms in the provinces to treat indigenous peoples as objects of the acculturation and evangelization policy of the official church of the Brazilian State.

The legislation of the Empire and the first Brazilian Constitution were not able to stop the dispossession of the indigenous people from their lands, with the whites often invading the spaces by force, annihilating the traces left by the former occupants. Therefore, the first Brazilian Constitution, since it does not provide for title deeds for recognition of ownership of lands by indigenous peoples, thus triggered the effect of legitimizing the process of fraud in these lands with the colonization policies implemented by the colonizing companies. (BARRETO, 2004).

The second Brazilian Constitution is no different. On November 15, 1889, after the Proclamation of the Republic, the National Constituent Assembly was elected, and in 1891 the first Constitution of the Republic was approved, with no provision on the subject of indigenous peoples. The 1891 constitution, in its article 64, transferred land without any destination to the federated States, remaining with the Union only the land necessary for the defense of borders and military constructions, and for the construction of railroads. Decree 734, of January 05, 1900, was issued in the state of São Paulo, establishing that the lands of indigenous settlements would be vacant lands, belonging to the federation unit, by Art. 64 of the constitution then in force. (BARRETO, 2004.)

At the beginning of the 1908th century, in 8.072, Brazil was for the first time publicly accused of the massacre of indigenous people. The reason for the extermination was the expropriation of territory to make way for the colonization of the region of Mato Grosso, São Paulo, Paraná, and Santa Catarina. Two years later, Law 20, of June 1910, 7, was enacted, which created the Service for the Protection of Indians and National Workers and which had around 2004 articles aimed at regulating activities related to indigenous territories (BARRETO, XNUMX) .

Still in the beginning of the 1916th century, the Civil Code of 1928 considered the “Indian” a relatively incapable being. In 5.484, Law nº 2012, regulated the legal situation of indigenous groups, classifying them according to their malleability and interaction with Brazilian society, defining that they are, respectively, “nomadic groups”, in villages, and gathered in indigenous settlements, under the guardianship of the State (GOMES, 94, p. 95-XNUMX).

The right of indigenous populations over their territories enters the Brazilian Constitution for the first time, in 1934, with article 129: “The possession of forestry people who are permanently located therein will be respected, and it will not be possible to alienate them” (BRASIL, 1934 ). Until the advent of the Federal Constitution of 1934, indigenous lands or permanently occupied lands could only be demarcated by approval of the states and their legislative assemblies. There were difficulties in obtaining land for the indigenous peoples, as it was first necessary to convince the state political forces to accept them. For these reasons, the first lands demarcated by the Indian Protection Service - SPI were so small, especially in states undergoing economic expansion (GOMES, 2012, p. 95-96).

In the 1937 Constitution, granted during the Estado Novo, the rights of indigenous peoples are reaffirmed. Article 154 mentions respect for the ownership of land by forestry farmers, with the prohibition of their alienation. Soon after, Decree-Law No. 1974 of 1939 created the National Council for the Protection of Indigenous Peoples – CNPI, with the function of presenting suggestions to the government on issues related to indigenous lands. The CNPI was chaired by General Rondon, and the political prestige of its president had positive consequences for indigenous policy. General Rondon authored the phrase that is still considered enigmatic for treating indigenous issues with great respect, a phrase used to respond to a letter from a co-religionist, on October 3, 1910, written as follows: “Now, the Indians should not be treated as property of the State within whose limits are their territories, but as autonomous nations, with which we want to establish friendly relations [original spelling]” (GOMES, 2009, p.189).

The 1946 Constitution remained with the same theme as the one granted in 1937, changing the language to demonstrate the consolidation of indigenous rights with diverse social and political forces in the country, and in an attempt to expand new perspectives so that indigenous people could be incorporated into the State.

The 1964 coup installed the military regime and extinguished the SPI in 1967, creating the National Indian Foundation - FUNAI, on December 5, 1967. The new body was instituted with a bureaucratic impetus to resolve the indigenous issue once and for all, with the clear intention of effectively transforming indigenous people into Brazilians, integrating them into the nation, and culturally assimilating them into the people (BERNARDO, 2021).

The 1967 Constitution, with the amendments of 1969, presented articles equivalent to those of previous constitutions, but with an important modification, indigenous lands are now considered Union lands, leaving them only exclusive and unavailable possession. This meant a step backwards in the history of the Brazilian conceptualization of traditional territories, which came to be defined as the property of the Union alone, but on the other hand, the wording of Article 198 favored the work of demarcating indigenous lands, making explicit their rights of indigenous immemoriality. or historical advance notice of any other rights subsequently asserted.

During the dictatorial period, which began in 1964, the Brazilian State produced a document that reported all the crimes committed against indigenous populations, which was called the Figueiredo Report, but which remained missing for several years, with the information that it would have been destroyed. This report originated from a determination by the Minister of the Interior, with the purpose of investigating corrupt practices in the National Indian Service, a body that was later replaced by the National Indian Foundation - FUNAI.

However, in 2013 the report, prepared by prosecutor Jader Figueiredo Correia, was found intact and it was possible to verify that: “The result presented by the prosecutor in his report is appalling: killings of entire tribes, torture and all sorts of cruelties were committed against indigenous peoples in the country, mainly by large landowners and state agents. Figueiredo did an impressive job of investigating: he included reports from dozens of witnesses, presented documents and identified each of the violations he found – murders of indigenous people, prostitution of indigenous women, abuse, slave labor, appropriation and diversion of indigenous heritage resources. He also investigated complaints about the existence of human hunting of indigenous peoples carried out with machine guns and dynamite thrown from airplanes, intentional inoculations of smallpox in isolated indigenous populations and donations of sugar mixed with strychnine” (STARLING, 2021).

The Brazilian State, still in the period of the military dictatorial regime, instituted Law 6.001 of December 19, 1973, known as the Statute of the Indian. The statute is a regulation of the Brazilian legislation on indigenous peoples in its legal and administrative aspects. This legislation has as its main function to determine “the social and political condition of the Indian before the nation, and to stipulate measures for the assistance and promotion of indigenous peoples” (SILVA, 2018., p. 490). The Statute considers the indigenous person to be incapable of carrying out acts of civil life, characterizing him as relatively incapable of certain acts that can only be carried out under the tutelage of the state, represented by Funai. For Ribeiro (1979, p. 47) “The Statute, which was intended to protect the rights of indigenous people, actually established standards of identification that distanced Indians from their own cultural identity”.

Furthermore, the Statute, by regulating constitutional matters, instituted some significant changes. Among the changes, the one related to the conceptualization of 'indigenous lands' stands out, with the indication that they become part of the Union, consequently, the new definition favored the process of demarcation of indigenous lands, making Funai the sole agent responsible for defining the which is indigenous land and for its demarcation at all stages.

Therefore, until the 1988 Brazilian Constitution, when the rights and guarantees of indigenous peoples became positive in the constitutional text, the legal historicity of contempt for indigenous people prevails, with superficial norms about their rights, sometimes only formally recognizing the right of indigenous people over traditionally occupied territories and now recognizing the ownership of the Union over these lands.

Thus, for almost five centuries, violent means were used to remove the indigenous people from their territory, with the intention of usurping their wealth, to remove wood from the forest, exploit mining and agribusiness. Highlighting, in some periods, the intention of the military to occupy the national territory, through colonization projects with the displacement of people to populate the Amazon region, without any concern for environmental preservation and the rights and guarantees of indigenous peoples .

The 1988 Federal Constitution, when drafted by the National Constituent Assembly, received contributions from the Brazilian indigenous movement, secular and religious non-governmental organizations and the Brazilian Association of Anthropology, among other organizations, since its convening. Due to this broad popular participation and the climate favorable to the rights of minorities in general, the result was extremely positive for indigenous peoples, guaranteeing their rights in a separate chapter in the constitutional text. In this sense, it is worth highlighting the guarantee of the Fundamental Right to the territory provided for in Art. 231, caput, thus expressed: “the Indians, their social organization, customs, languages, beliefs and traditions, and the original rights over the lands they traditionally occupy are recognized, and the union competes to demarcate them, protect and ensure respect for all their assets” (BRASIL, 1988).

Therefore, the constituent made a point of emphasizing that the rights over the lands they traditionally occupy are original rights, in an allusion that these rights predate the constitution itself, precede the very creation of the Brazilian State and, therefore, are recognized as original, in a symmetrical characterization of natural rights that are recognized as rights that precede the very creation of the modern State (PEREIRA, 2022).

The explanation of what are the lands traditionally occupied by indigenous peoples is established in §1 of Art. 231 of the Constitution in force, stating that they are “permanently inhabited, used for their productive activities, essential for the preservation of the environmental resources necessary for their well-being and necessary for their physical and cultural reproduction, according to the their uses, customs and traditions”. In §2 of Art. 231, it is established that “The lands traditionally occupied by the Indians are intended for their permanent possession, with them being entitled to the exclusive use of the riches of the soil, rivers and lakes existing therein” (BRASIL, 1988).

The 1988 Magna Carta sought to effectively ensure the rights and guarantees of indigenous peoples over their lands, establishing with emphasis, in Art. 67, of the Temporary Constitutional Provisions Act that “The Union will complete the demarcation of indigenous lands within five years from the promulgation of the Constitution” (BRASIL, 1988).

For Dalmo de Abreu Dallari, former counselor of the São Paulo Pro-Indian Commission, the demarcation of indigenous lands is a national and international legal obligation: “The demarcation of indigenous areas is a constitutional obligation of the Brazilian government, as well as a legal obligation. international community of Brazil” (DALLARI, 2018).

However, this fundamental duty of the Brazilian State has not been effective and this constitutional obligation has not been effective. The Union, responsible for the demarcation of indigenous lands, should have concluded within five years after the promulgation of the Constitution. This lack of efficiency in demarcation is attributed to the bodies in charge of demarcation, which characterizes an intentional omission by the Brazilian State in complying with a Constitutional obligation. This pressure to prevent demarcations stems from the defense of the interests of powerful people who invaded indigenous lands, claiming to know nothing about the geographic location of indigenous areas, justifying that they were in good faith without committing illegalities.

In the same sense, Dalmo de Abreu Dallari thus describes the context of disrespect for indigenous communities regarding the demarcation of their lands: “As is public and notorious, there has been a lot of interference from powerful economic groups, including through parliamentarians linked to them, in the in the sense of delaying the demarcation of indigenous lands, in the expectation of a change in constitutional norms” (DALLARI, 2018).

The disrespect for indigenous land rights can also be observed in the recent discussion held in the Federal Supreme Court about the timeframe for demarcations. Bruna Mariz Bataglia Ferreira (2021, p. 2.263) when making a critical analysis of the Torrens Registry system in Brazil makes a lucid comparison “I tend to echo the literature that sees in this system another “dispossession technique”– of indigenous lands and peasants. As is the disastrous thesis of the time frame of the demarcation of indigenous lands in Brazil”.

The contempt for indigenous rights has not ceased under the aegis of the 1988 Constitution. Bill 191/2020, which was drawn up in 2020 by the then Bolsonaro government and forwarded to the National Congress by its support base, is still being processed. It is a proposal for economic growth, through the expansion of mineral activity and the use of water resources to generate electricity in indigenous lands. In addition to regulating the exploitation of economic activities in these territories, it provides, as compensation, for compensation for restricting the usufruct of indigenous lands. (BRASIL, 2020).

The losses in the event of the possible approval of PL 191/2020 are significant, both for fundamental rights exercised by indigenous people in their territories and for the environment, which may have considerable extensions of areas affected by activities that are harmful to natural environmental goods. Thus, it can easily be seen that the project has the clear intention of facilitating the exploitation of natural assets present in indigenous lands, without concern for the fundamental rights of indigenous people exercised in these territories and without any concern for environmental preservation. Undeniably, it is evident that the project aims to regularize illegal activities practiced in indigenous areas, which have increased in recent years.

Therefore, contempt for indigenous rights, notably, is easily perceptible, just analyze the historical evolution of norms since the arrival of Europeans in Brazil, passing through the remarkable facts, the historical evolution of constitutional norms and the alleged norms of organization and protection of indigenous peoples. The constitutional affirmation of guarantees and fundamental rights of indigenous peoples, carried out in 1988, did not remove the constant threats suffered by indigenous communities, whose rights are routinely disrespected and frequently threatened.

*João Hélio Ferreira Pes Professor of Law at the Franciscan University – UFN (Santa Maria, RS).

*Juliana de Oliveira Rodrigues is a graduate student in law at the Franciscan University - UFN (Santa Maria, RS).


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