By EBERVAL GADELHA FIGUEIREDO JR.*

The relations of indigenous peoples who inhabit Brazilian lands with their respective territories are not reducible to the institutes of Western law

In the post-1988 Brazilian context of the New Republic, the discussion around the time frame thesis has been almost timeless (sic), being a priority issue for indigenous movements, emerging and resurfacing in the spotlight of public debate countless times. This was the case, for example, with PL 2.903/2023, subject to a partial veto by President Lula on October 20th. The controversy lies in the proposal to define the recognition of the territorial rights of indigenous populations based on the lands actually occupied when the 1988 Federal Constitution was promulgated. In other words, according to this thesis, the lands would only be recognized as indigenous territories if were under Indian occupation at that date, ignoring any previous or subsequent claims.

Evidently, this is a controversial approach. From the point of view of the hermeneutics of the constitutional text, the thesis is fragile, as it is based on the fact that paragraph 1 of art. 231 of the Constitution begins with a verb conjugated in the present tense. Although the grammatical interpretation of a norm is important because it serves as a support for other interpretative approaches, it is usually not enough. A merely grammatical interpretation of the norm is too poor. But the thesis is controversial not only because it is based on an interpretation ad litteram which ignores the spirit and intentions of the constitutional text, but also by disregarding centuries of forced displacement and dispossession of indigenous populations, caused by colonization and the process of territorial expansion.

It is important to highlight that the relationships between indigenous peoples who inhabit Brazilian lands and their respective territories are not reducible to the institutes of Western law. This is one of the biggest problems in the growing and relentless process of legalization of issues relating to indigenous peoples in Brazil. The ordering of the Nation-State has absolute pretensions, and properly indigenous terms and categories are not taken into account, even in matters relating to these peoples (there is, obviously, a big difference between indigenous law and properly indigenous law).

The same can even be said of apparently innocent concepts and terms, such as the “traditional” invoked by the statement of art. 231 of the CF. Indigenous territories are fluid, and, at least historically speaking, geographic displacements occur relatively frequently. There are countless examples of this, such as the wanderings of the Guarani Mbyá in search of the mythical Land Without Evil, which led them to leave Paraguay towards southeastern Brazil throughout the 2015th century. (TEAO, 2017). To cite a more recent example, there is also the case of the Araweté, who today inhabit the Ipixuna stream, in Pará. They say that they once inhabited another place that, in their cosmology, occupies the geographic center of the earth, from where they were expelled. due to interethnic conflicts (CAUX; HEURICH; VIVEIROS DE CASTRO, 39, XNUMX).

From the point of view of these people, subjects of their own history, which of the territories they have occupied over the years can be considered their truly “traditional” home, considering that tradition is something dynamic, contrary to what we are used to thinking ? Those who designed our legal norms regarding indigenous peoples did not bother to find out. The establishment, through a merely grammatical interpretation of the normative text, of a chronological landmark that is frankly arbitrary from the perspective of the profusion of indigenous Brazilian ethnicities, only worsens the situation. There is not only a lack of anthropological sensitivity, but also a historical one. The time frame thesis does not take into account a plethora of factors of indigenous population displacement, such as nomadism, migration, interethnic wars and forced relocations, which can lead an ethnic group to move away from its “traditional” territory, which would have the effect of obvious result, upon application of this thesis, the loss of rights over the territory in question.

The imposition of Western appropriation regimes and land rights on the indigenous context is an anthropologically dubious decision. According to Étienne Le Roy, land rights are nothing more than expressions of different ways of conceiving space and social relations. The Western land regime derives from a specific form of representation of geographic space, characterized by measuring the surface and attributing an economic value to it. This is not the only land regime that exists. Among Australian aborigines, for example, there is a concept that the author calls odology (“science of paths”), in which trails become a prominent element. Such people give importance to the so-called “dream trails”, which mark the paths taken by mythical creatures during the cosmogonic era to which they give the name “Dreamtime”, and cross the vast expanse of the Australian continent. Similarly, the indigenous peoples of Brazil have their own socio-spatial conceptions of the world in which they live, with important implications that make their land appropriation regime fundamentally different from that provided for in the Brazilian legal system.

Such incompatibility does not represent an innocent mistake. On the contrary, the submission of indigenous peoples to a land regime exogenous to their reality privileges incompatible and even antagonistic and hostile interests in relation to the well-being and very survival of these peoples. It is a clear example of how the concept of Rule of Law, often seen as extremely noble, it can be and often is used as a rhetorical and ideological device aimed at legitimizing looting (MATTEI; NADER, 2008).

As the issue of different land appropriation regimes demonstrates, the time frame thesis is illustrative of how the rationality that governs Western and, more specifically, Brazilian normativity, strongly diverges from the forms of organization and conflict resolution present in indigenous societies. There is no effective dialogue between these traditions, because when these legal traditions interact, the interaction is always marked by a strong asymmetry. Western law projects itself as a despotic signifier over the reality of original peoples. This even results in disruptive effects on the social organization of these populations. Citing the Araweté as an example again, before contact with national society, which occurred in the second half of the XNUMXth century, they were organized in acephalous villages, without a solid institution of leadership (the role of leadership in a given situation was assumed in a spontaneous and ) (CAUX; HEURICH; VIVEIROS DE CASTRO, 2017, 79-83). This political configuration, however, made dealing with indigenous people and the Brazilian State extremely difficult, and today Araweté villages already have “chiefs” for these purposes. The indigenous social fabric itself is forced to bend before the normativity of the modern Nation-State. There is an a priori rejection of native forms of legality, external to the state bureaucratic paradigm.

In terms of the coexistence of indigenous ethnicities with the Brazilian State, what exists in practice is a regime of strongly agonistic and asymmetrical legal pluralism (not what usually comes to mind when one hears about legal pluralism), with one of the orders simply not recognizing the alternative legality represented by the others (it is worth highlighting that there is not just one Brazilian indigenous law, since each people lives in accordance with their own internal conventions). Perhaps there is no better example of this precarious situation than the time frame thesis itself.

The Indigenato thesis, on the other hand, is the most accepted in national jurisprudence, and its origin dates back even before 1988. It is based on a historical perspective that recognizes the rights of indigenous communities based on their ancestral occupation (ie, pre-cabralina) of the lands that would become Brazil, regardless of their occupation within the arbitrary time frame of the date of promulgation of the 1988 Constitution. It is a vision that takes into account the long history of injustices committed against these populations and seeks to correct them.

The contrast between these two theses highlights the tensions between the search for historical justice and the economic and political interests related to land ownership in Brazil. However, a more careful analysis inevitably leads to the conclusion that the Indigenato thesis is, in truth, a kind of disguised Time Mark, set not in 1988, but in 1500. This finding does not invalidate or undermine the Indigenato thesis, clearly superior to the alternative, but demonstrates something that is (or at least should be) trivial: the contingent character of the “indigenous” category itself. This is recognized even by the indigenous people themselves, for example, when they state that the survival of their people and cultures depends on the territory (YAWALAPITI, 2019).

Indigeneity cannot be properly understood other than as a historical-geographical contingency that reflects the complexity of human relationships with territories over time. The complementary opposite of “indigenous” is “alien”, so that one category presupposes the existence of the other. In the context of Brazil and the rest of the Western Hemisphere, populations of European origin represent the “aliens” par excellence. But it was not always so. There are many cases of people today considered indigenous who once considered themselves aliens in their own territory. The Nahuatl-speaking peoples (among which the Aztecs are the most famous) who dominated the Valley of Mexico in the 1980th century settled in the region in a process of successive waves of migration that began about a millennium earlier, usurping the political power of populations older, speakers of Mixe-Zoquean or Oto-Manguean languages ​​(CANGER, 12, p. 1996). Something similar occurred on the Brazilian coast, with the expansion of Tupi peoples into territories then occupied by so-called “Tapuia” populations, such as the Krenak, Pataxó and Kariri (NOELLI, 34, 35-XNUMX).

In the absence of Europeans, Aztecs and Tupinambás were the aliens in their respective pre-colonial contexts. This happens for two reasons: first, because they arrived late in lands already inhabited by other populations; second, because the American continent did not yet exist as a concept in the geographic imagination of any of these people. It was only with the arrival of Europeans, coming from distant lands as absolute aliens, that it became possible to conceive of all the people who already inhabited the Americas as indistinctly indigenous. In other words, the application of the concept of “indigenous” varies considerably in different historical and geographic contexts, with its contemporary iteration being intrinsically linked to European colonization and global expansion. The consequences of this are potentially problematic, as we would be admitting that the arrival of Europeans made tabula rasa of the entire pre-colonial history of these people and its countless nuances.

One of the criticisms made of the use of the term “Indian” is that it reduces an immense anthropological variety to a supposedly monolithic bloc. Even though the term “indigenous” is in fact preferable because it is more neutral, descriptive and does not derive from a gross historical error, it can be said, given the above, that it suffers from the same vice. Native populations from different regions of the world have unique histories, cultures and contexts. What is considered “indigenous” in one part of the world often does not apply to another. An Araweté living in Dublin, for example, will obviously always be an Araweté, but could never be said to be indigenous to Ireland. Similarly, the only reason anyone would deny the Japanese the status of “indigenous” to Japan (although the ethnogenesis of these people occurred there, and a long time ago) would be due to the contrast with even more ancient local populations, such as the Uchinanchus of Okinawa or the Ainu of Hokkaido (note, however, that such preciousness is never applied to the Aztecs or Tupinambás).

All of this sounds like (and in a way is) arbitrariness of the highest order. However, the fact is that what we consider “indigenous” or not passes through a certain essentialist sieve, that is, the belief in the existence of inherent and fixed characteristics that define the nature of something (or someone). Now, why would we consider the Sámi ethnic group from Scandinavia “the only indigenous people in Europe” (GOUVERNEUR, 2017), to the detriment of other populations whose origin is similarly ancient, such as the Sardinians or Basques? The answer is simple: in addition to having their own language (just like Sardinians and Basques), the Sámi, unlike other Europeans, are traditionally reindeer herders who do not practice agriculture, wear colorful clothes, play shamanic drums and live in tents. in the snow. In other words, their indigeneity is recognized mainly due to aesthetic and performative factors, which is nothing more than a well-intentioned version of the thinking behind old buzzwords like “iPhone Indian”, so often used to delegitimize identities and indigenous issues in the Brazilian context. “Indigenous” is the nickname of the underdogs, condemned to the eternal condition of a precarious social minority.

Often hand in hand with this well-intentioned essentialism goes the discourse of greening indigenous populations. In the current context of ecological crisis, these populations, desperately seeking their own perpetuation, feel the need to always justify their own existence, not as ends in themselves, but as providers of valuable “environmental services”. One could even say that it is an advance in relation to the old paradigm in which these people were seen as “obstacles to progress”, but the ecological rhetoric also serves as an obstacle to the construction of indigenous societies as subjects of rights (SANTOS, 2016 ).

Such a utilitarian argument also attributes much of the “burden” of ecological preservation to that anthropological monolith that is “indigenous” populations around the world (but especially in Brazil, whose territory includes most of the Amazon). Meanwhile, the westernized urban petty bourgeoisie with vaguely progressive sensibilities (which problematizes Alencarian Indianism so much, as if it were not its direct ideological heir) claps its hands and, filled with pity and guilt, sheds vain tears, keeping its lifestyle intact. environmentally harmful. They do not seem to realize that indigenous groups do not live in harmony with their environment due to an essence (which does not exist), but a ethos which is not exclusive to them (this is what the countless traditional non-indigenous populations demonstrate, such as quilombolas, caiçaras, riverside dwellers, coconut breakers, etc.). It seems that this westernized urban petty bourgeoisie has only one strange and paradoxical condition: executioners of the world and people; victims of their own conscience. It's better to leave everything more or less as it is. After all, we don't want to commit cultural appropriation and other similarly heinous crimes.

In short, like the time frame thesis, the essentialism that largely informs popular notions of what is “indigenous” must be rejected. For this to occur, certain nuances must be recognized, including the impossibility of separating indigenous people from their context in time and space (a fact that apologists for the temporal framework abuse). If there is something that these two questions reveal to us, it is that a debate based on shallow grammatical and terminological obsessions, often to the detriment of linguistic pragmatism, can lead us to strange places and erroneous conclusions.

*Eberval Gadelha Figueiredo Jr. holds a bachelor's degree from the Faculty of Law at USP.

References

CANGER, Una (1980). Five Studies Inspired by Náhuatl Verbs in -oa. Travaux du Cercle Linguistique de Copenhagen, Vol. XIX. Copenhagen: The Linguistic Circle of Copenhagen; distributed by CA Reitzels Boghandel.

CAUX, Camila de; HEURICH, Guilherme Orlandini, VIVEIROS DE CASTRO, Eduardo. Araweté: a Tupi people from the Amazon. São Paulo: SESC Editions, 2016.

GOUVERNEUR, Cédric. Le Monde Diplomatique: Europe's only indigenous people. 2017. Available at: https://mondediplo.com/2017/01/14saami.

MATTEI, Ugo; NADER, Laura. Looting: when the rule of law is illegal. Translated by Jefferson Luis Camargo. São Paulo: Martins Fontes, 2013.

NOELLI, F. Hypotheses about the centers of origin and expansion routes of the Tupi. Journal of Anthropology, 1996, 39: 7-53.

SANTOS, LR The greening process as an obstacle to the construction of indigenous societies as subjects of law. 2016. 172 f. Dissertation (Master’s in Agrarian Law) – Federal University of Goiás, Goiânia, 2016.

TEAO, KM. History and movements of the Guarani Mbya from Paraguay to Espírito Santo (1940-1973). Dimensions: UFES History Magazine , v. 35, p. 321-346, 2015.

YAWALAPITI, Watatakalu. PIB Socio-Environmental: “Without the territory, our culture ends, our children are lost, right? Without it we do not exist. Without it, indigenous peoples simply do not exist.” 2019. Available at: https://pib.socioambiental.org/pt/%22Sem_o_território,_a_nossa_cultura_acaba,_os_nossos_filhos_se_perdem,_né%3F_Sem_ele_a_gente_não_existe._Sem_ele,_simplesmente_não_existem_os_povos_ind%C3%ADgenas.%22.

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