Freedom of Expression for Indigenous Peoples

Image: Mathias Cooper


Indigenous peoples have the right to continue to be indigenous, to continue to express their indigeneity, exercising the original rights recognized by the Federal Constitution of 1988

The question of freedom of expression of indigenous peoples, beyond the recent and repugnant initiatives of FUNAI to attack the freedom of expression of indigenous leaders, concerns first of all the freedom of indigenous peoples to continue to be indigenous, to continue to express their indigeneity, exercising the original rights that are recognized by the Federal Constitution of 1988 in the caput of article 231.[I]

The name of the indigenous mobilization that is taking place these days in Brasilia is eloquent.[ii] For it is indeed a struggle for life. A struggle of resistance to the real final offensive launched against indigenous peoples, which now includes the weapon of the pandemic, triggered by the trigger of negligence, incompetence and – impossible not to suspect – of a sinister genocidal opportunism. This offensive has multiple objectives, from the most odiously supremacist, which is the consummation of the project of extinction of all infranational (or supranational) collective identities, in the name of a cultural and racial homogenization under the tutelage of those who intend to be the incarnations of Western civilization down to the most grossly greedy goal, which is the reduction of the maximum possible extent of the country's public lands - of all public goods, in fact - with a view to an ideally integral privatization of the national territory and its "resources", and apparently of all the functions and duties of the State. Nothing else will be public in the republic.

The Federal Constitution is certainly not perfect (I am thinking of the door left open by art. 142 to a “constitutional” military coup), but it represented an unprecedented and gigantic historical advance in terms of guaranteeing collective rights, as can be seen in Title VII (On the Social Order), of which each of the eight chapters is today the target of a process of systematic destruction by the forces in power: health; pension; the education; the culture; the science; the environment; and, finally (always finally), the indigenous peoples.

The history of the last thirty years has been marked, at the same time, by the accomplishment of the conquests brought by the CF, which literally changed the face of the country, and by the malignant and spiteful determination, manifested by the large predatory fraction of the national elite and by several initiatives in the sphere of the Three Powers, in neutralizing, reversing and liquidating such conquests. These initiatives are now reaching a maximum intensity, and a government license (more than that, an incentive) seems to have been granted to invade, devastate, kill or let the indigenous population die – and not just them. Haiti is here, as Caetano Veloso sang. I would add: for indigenous peoples, the Gaza Strip is here too. Or worst.

The campaign to dismantle the most progressive articles of the Constitution actually began before its enactment. In 1987, the newspaper The state of Sao Paulo published cover stories for a week, with large slanderous headlines, against the Indigenous Missionary Council and other institutions, to attack indigenous rights in the Constitution under construction. The campaign of Estadão it has lost nothing, I am sorry to say, of its topicality. Yesterday, the same newspaper published two pages of p(r)agas articles, promising chaos if the timeframe thesis is rejected by the STF. As if chaos wasn't already in place.

We know that the thesis of the time frame dates back to the marriage between opposed interests of agribusiness and some sectors of the armed forces, on the occasion of the creation of the TI Raposa Serra do Sol. It is not surprising that big businessmen, some of them installed in the Amazon during the dictatorship with the stimulus of large subsidies, seek the extinction of rights that guarantee that lands traditionally owned by indigenous people remain inalienable assets of the Union. It is surprising, however, that members of institutions that “are intended for the defense of the homeland” (CF, art 142) actually defend something quite different, namely, the handing over of public lands to land grabbing, deforestation, fire, land speculation and an agricultural production that does not aim and has never aimed to guarantee food security for the population.[iii]

By freezing the status of indigenous lands in 1988 (and let us remember that the five-year deadline for finalizing the demarcations of indigenous lands was not met, as it was not after 1973, as stipulated by the living dead Indian Statute)[iv], the thesis legalizes and legitimizes the violence to which people were subjected until the promulgation of the Constitution, especially during the dictatorship. Furthermore, it ignores the fact that, until 1988, indigenous peoples did not have the autonomy to fight for their rights in court. These peoples said, in demonstrations and mobilizations after the promulgation of the Constitution: “Our history does not begin in 1988”. Well then, the timeframe thesis wants the history of indigenous peoples to end in 1988. It wants history to stop there.

Consider the absurdity of an original right that is only valid until a certain date. The thesis of the temporal framework freezes a centuries-old situation of territorial exploitation, transforming it into a “right” (even with a clever insinuation of “privilege”). It amounts to denying indigenous peoples their future; to expel them from history as agents, relegating them to the past. The barely concealed intention of all this is to make the original peoples disappear little by little as peoples. Slowly or quickly, because there's a hurry: you have to end everything before it's all over.

“Not one centimeter more”, said the president-elect in his campaign: not one centimeter more for indigenous lands, for quilombola lands, for conservation units. The thesis of the time frame surprisingly coincides with the objectives and values ​​professed by the current supreme representative of the nation. Let's keep that in mind.

The annulment of indigenous lands based on a timeframe of 05/10/88, as noted by lawyer Juliana de Paula Batista, makes all recent invasions regularizable. This is a radical distortion of original law, annulling D 6 of article 231. Is the indigenate thesis extinguished? Is the Requirement, the infamous order of eviction read by the Spanish conquerors before the indigenous peoples, reissued?[v] By what moral right (if I may be allowed the expression) are indigenous peoples denied their constitutional rights? How dare you?

And it is worth asking: how many non-indigenous Brazilians have their lives improved with every centimeter of land that is refused to indigenous peoples? The lives of which Brazilians? Or, moreover, and also, the lives of which foreigners? Who profits from the theft of indigenous lands? The concern of the self-appointed guardians of nationality with the “internationalization of the Amazon” always seems to target the original peoples. Meanwhile, there are over 28 land holdings in the name of foreigners. Together, these areas add up to 3,617 million hectares, an area of ​​national territory almost equivalent to that of the State of Rio de Janeiro.By law, foreigners can acquire or lease up to 25% of the territorial area of ​​each municipality, and are present in 60% of Brazilian municipalities. But the danger is the indigenous people, that is, the least foreigners of all the inhabitants of the national territory.

And finally… While the validity of the thesis of the timeframe is being discussed, the “timeframes” of the process of legalizing land grabbing in Union lands only move forward. PL 2.633/2020, the “PL da Grilagem”, establishes that the lands occupied until 2008 (why not only until 05/10/1988?) can be regularized, but provides that areas of later occupation can be legalized by bidding, with rules defined by decree of the Executive Branch![vi] We all know what this could mean from the point of view of an explosion in the invasion of public lands in the Amazon and the consequent increase in deforestation, with the effects, now impossible to ignore, on the country's climate stability. We are all aware of the fundamental role that indigenous lands and peoples play in maintaining the dynamic balance of the Amazonian environment. The time frame thesis does not take into account the time we live in – it works against the race against time, against the scarce time we have to ensure that the planet remains habitable for the human species.

*Eduardo Viveiros de Castro is professor of anthropology at the National Museum of UFRJ. Author, among other books, of Inconstancies of the wild soul (Ubu).

Lecture given at the II Virtual Meeting on Freedom of Expression, Seminar promoted by the National Council of Justice with the support of the Arns Commission, on August 23, 2021.

Originally published on the website of Publisher n-1 .


[I] “Indians are recognized for their social organization, customs, languages, beliefs and traditions, and their original rights over the lands they traditionally occupy”


[iii] 41% of Brazilians (84 million) live with some degree of food insecurity, 9% of these with pure and simple hunger.

[iv] Transitional Provisions of CF 1988, art. 67. “The Union will conclude the demarcation of indigenous lands within five years from the promulgation of the Constitution.” In 1973, the Statute of the Indian determined the same period. In 1988, the deadline is repeated, since it had not been met in the 15 years that separate the Statute from the Constitution. This “time frame” is not respected.

[v] Paulo Brabo,

[vi] Imagine the noise that the proposal for a time frame with the same date as the enactment of the CF would make, freezing all public lands that were not then private property duly legalized and registered in the competent notaries and cadastres (CAR, CIR, APP verification, etc.).

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