Despite having a smaller indigenous population than many other Iberian-American countries, Brazil’s constitutional acknowledgment of the rights of Brazilian Indians dates back many decades. Indeed, the Constitutions of 1934, 1937, and 1946 already contained provisions obliging the respect of indigenous possessions. The Constitution of 1967 further guaranteed permanent possession of the lands to the indigenous population. Additionally, in a 1969 Amendment, the Constitution ordered the annulment of occupation titles of indigenous lands by non-Indians, as well as the subsequent inexistence of the landowners’ right to indemnities from the Union or the National Indian Foundation.
But the decisive step was taken by the Constitution of 1988, in which Article 231 establishes that the Indians’ “original rights” (“direitos originários”) to the lands they “traditionally occupy” are “recognized”, as well as the right to the preservation of their use, customs and worldviews. By stating that such “original rights” are “recognized”, the Constitution refers to a pre-existing juridical situation that is remains in effect. For this reason, the Constitution doesn’t itself allow nor grant such rights, but recognizes the validity of a law that has endured in Brazilian society and which predates the State and the Union.
Because the rights of Brazil’s indigenous population are “original,” they are therefore not in and of themselves emphasized by the State, nor do they have the will of the legislator as a material source. By referring to the validity of an older law, the Article appears to overcome juridical positivism and voluntarism. Furthermore, the implementation of such a law implies an opening of a dialogue with other sources of knowledge—namely anthropology, ethnology and history.
Overcoming the State as the source of the law, the constituents of 1988 recognized another legal order—one based on principles of natural law and law of nations (jus gentium). This is also recognized by the tradition of the Portuguese and Spanish Crowns, namely the one founded on the ideals of the Iberian School of Peace, active in the Universities of Salamanca and Coimbra (16th and 17th centuries), which left a mark on a considerable amount of both crowns’ colonial legislation. As such, the immemorial right of the Indians “over lands they traditionally occupied” being recognized but not conceded nor granted determined that the act of demarcation of these lands has a declaratory and non-constitutive nature. Similarly, in attributing competences of demarcation of indigenous lands to the executive power and not to the legislative power, the Constitution of 1988 considered this act to be of technical rather than political nature.
Therefore, the recognition of indigenous possession, based on “original rights”, was itself based on a notion of traditional occupation of the land. This is not an orthodox feature of civil law, as it implies a cultural interpretation of the sources of the law. In fact, the concept of traditional occupation refers not only to the perdurability of the occupation but also to the way of occupation: according to their customs, but open to cultural exchanges based on free choices. This cultural interpretation implies the non-applicability of pure private orbit, because what is at stake is the more complex concept of a people’s habitat. In fact, by highlighting the importance of permanence and the passing down of customs and practices, Article 231 of the Constitution of 1988 makes Brazil open to recognizing the legitimacy of different and diverse forms of culture, as well as the right of the Indians to remain Indians. It does not, however, grant them recognition of the right of “property” of the lands, but only the “indigenous and permanent possession” of them. Such recognition avoids notions of secession because the indigenous lands still remain property of the Union.
This developed a stage that was retained a year later by the International Labour Organization’s Convention 169 in 1989, that, like Article 231 of the Constitution, eliminated the goal of integration of the indigenous communities in the socially and politically dominant models of culture. As such, historic linearities that previously prevailed were left behind, making way for the recognition of cultural diversity as World Heritage, as would happen also with the approval of UNESCO’s Universal Declaration on Cultural Diversity (2002). This recognition comes without implying the isolation of indigenous peoples nor the obligatory repetition of cultural traditions without enriching exchanges. What is being defended is not the obligatory inertial isolation in a static reading of what is traditional, but human dignity founded on free choices and the conception of the history of mankind as an articulated space of enriching differences. This implies that cultural exchanges may be seen not as a loss of identity but as an opening to the other that maintains a sense of identity without the loss of constitutional protection. These constitutional principles were applied and subsequently disrespected by the governments of the Labor Party (2002–2016), during the presidencies of Lula da Silva and Dilma Rousseff.
While President Silva in 2005 admittedly signed the presidential decree, recognizing the Raposa Serra do Sol Indigenous Land at Roraima, taking a decisive step in the process of delimitation of indigenous lands, the government of President Rousseff initiated one of the greatest environmental crimes in contemporary Brazil: the construction of the Belo Monte Dam in the Amazon region, challenging in every respect Article 231 of the Constitution.
Likewise, it was the inaction of the successive governments of Brazil, including those of the Labor Party, which brought about the recent conviction of Brazil at the Interamerican Court of Human Rights in the case of Xucuru People vs Brazil. The traditional division between left-wing governments and right-wing governments therefore mustn’t be directly applied to the analysis and understanding of this matter. What can be concluded is that Article 231 is a counter-majority pact.
In this context, one may understand the recent election of Jair Bolsonaro. He possesses a strong favorability towards agrarian and mining interests, shares obsolete developmental conceptions, is seemingly insensitive to the values of cultural diversity, does not recognize the value of the concept of humanity as a principal regulator of international order, and does not conform to jus cogens. Bolsonaro implied he would immediately halt the demarcation of indigenous lands, bring about the weakening of the FUNAI (state organ which led technical proceedings of demarcation), integrate Indians within dominating cultural models, and solidify the conception of the Indian as a burden on society for not working the land in an industrial and rational way. He further threatened to reverse the previously achieved and constitutionally-protected demarcations, exploit the mineral riches from demarcated lands, continue and encourage the deforestation of the Amazon, and, as expected, fail to observe the Interamerican Court sentence in Xucuru People vs Brazil (decided 05/02/2018).
Another aspect of Bolsonaro and his supporters’ platform identifies the discourse on the “original rights” of indigenous people as a threat to the sovereignty of the State, especially in indigenous lands on the border. Furthermore, they accuse non-governmental organizations which protect human rights of being Trojan horses for the furthering of foreign interests. Yet, they seem to be unaware of the fact that the indigenous people were frequently allied to the Portuguese in the fight for the extension of the border of Brazil in its dispute with Spanish America as happened in the 18th century in the current Indigenous Land of Raposa Serra do Sol.
This stance, which presently dominates the Presidency of the Republic’s discourse, forgets that the Constitution of 1988 discredits the terms “people”, “territory” and “nation” when referring to the Indians, removing all bases of support to the concept of self-determination.
Pedro Calafate is a full professor at the University of Lisbon (Department of Philosophy). In the last five years he has been working on the recovering of the Latin manuscripts of the Hispanic renaissance tradition (Salamanca, Coimbra and Évora) on the basis of human rights, the unity of mankind and the legitimacy of indigenous sovereignties, transforming the empire of the two countries into a legal expectation, which was fulfilled in the edition of his most recent work: A Escola Ibérica da Paz nas Universidades de Coimbra e Évora (Séculos XVI e XVII), 2 vols (Coimbra: Almedina, 2015). Reinforcing the research of the great Iberian sources of modern thought, he was co-director of the edition of António Vieira’s Complete Works (30 vols. Lisboa/São Paulo: Círculo de Leitores/Loyola, 2013-2017). The purpose of his recent research is to activate the dialogue between the tendencies of contemporary jus cogens ant this Iberian renaissance tradition on natural law and law of nations.