Legal regime for a mosaic of differences: 25th anniversary of UNDRIP – experiences in Brazil

A performance

In August 2018, the self-described Fulni-ô indigenous people held a performance at the University of São Paulo Law School where they also exhibited pieces of their traditional crafts. They were invited as part of a project (called Saju-Tuíra) that puts students in contact with the villages (aldeias) for collaborative initiatives.

The Fulni-ô currently inhabit two villages in the state of Pernambuco in the northeast region which was one of the pioneering areas at the beginning of colonisation in the 16th century. The extermination and assimilation of ethnic groups in the region does not sum up the whole story. The Fulni-ô are an example of the reinvention of diacritical traits that differentiate them from the local cultural milieu: they preserve their own language (the Iatê) and perform rituals exclusive to their people (the Ouricuri). Based on the Land Law of 1850, a widely invoked expedient was to claim that the old Indian aldeias were extinct to allow the sale of the land. In the 1870s and 1920s, however, the Fulni-ô managed to get their land rights recognised. This ‘official protection’ inspired claims by other groups in the region[1]

Examples of potato leaves, each representing a different species, Aldeia Kalipety, © Samuel Barbosa

Today 256 indigenous ethnic groups are identified in Brazil, speakers of more than 160 different languages, totaling approximately 900,000 people (about 0.47% of the total population of the country; IBGE official census, 2010). Indians live in aldeias in 726 recognized indigenous lands, distributed in almost all states of the federation, and in areas waiting to be demarcated.

A New Legal Regime

The self-constitution of ethnic groups is a dynamic process that activates the memory of old practices and reinvents others to differentiate a collectivity from the surrounding cultural environment. Often the master narratives of the Nation foundation denied the recognition of ethnic differentiation and made it invisible.

The legal regime inaugurated at the end of the 1980s, however, represents a turning point that is difficult to overestimate. Brazil voted favourably in the UN for the Declaration on the Rights of Indigenous Peoples (UNDRIP) in 2007 and ratified the 1989 Indigenous and Tribal Peoples Convention from the International Labour Organisation (ILO 169) in 2002. The Declaration recognises “the right of all peoples to be different” (UNDRIP, preamble), the Convention replaces the ILO 107, “removing the assimilationist orientation of the earlier standards” (ILO 169, preamble). The two documents were consistent with the 1988 Constitution, still in force, drawn up in the process of democratisation after the dictatorial period (1964 – 1985). The Constituent Assembly had a broad participation of social movements forged in the struggle against the dictatorship, including the indigenous movement and its supporters in civil society. The 1988 Constitution is the first in the country to bring a special chapter for indigenous peoples. Most significant is the new orientation. It not only brings the commitment to ensure the “physical and cultural reproduction of indigenous peoples”, but it also recognises the importance of protecting traditional ways of life – thought of not as a transitory condition, but with a right to the future. In addition to indigenous peoples, the Constitution has made room for the recognition of a mosaic of other traditional peoples with differentiated rights that are being enshrined in legislation.

In contrast to the vision of a homogenous Nation, formed by the fusion of races, the Constitution acknowledged Brazilian society as diverse. The 1988 Constitution provides that “The expressions of popular, Indian and Afro-Brazilian cultures, as well as those of other groups participating in the national civilization process” shall be protected by the state (art.215, §1) and “ethnic and regional diversity” is valued (art.215, §3, V). The material and immaterial assets related to the “identity, action, and memory of the different groups forming society” (art.216) is defined as a vital part of the Brazilian cultural heritage. The Constitution makes special mention of the preservation of “documents and sites bearing historical reminiscence to the ancient communities of runaway slaves (quilombos)” (art.216, §5). 

UNDRIP and ILO 169 combine with the 1988 Constitution to form a legal regime that recognizes the intrinsic value of socio-cultural diversity and defines principles for the protection of difference. In particular, the principles of self-determination and self-identification have acted as a catalyst for the agency of indigenous and other traditional peoples at different scales: from the village, through state organs, to international forums.

Especially since the 2000s, focalised public policies have been implemented for indigenous peoples. The recognition of territorial rights and the protection of material and immaterial cultural heritage have advanced. In a countermove, the government of Jair Bolsonaro has discontinued public policies, interrupted the demarcation of lands and has encouraged by omission and actions the predatory exploitation of indigenous lands and violence against indigenous people and supporters.

Knowledge as a resource

“The recognition, promotion and protection of the rights and freedoms of indigenous peoples” (UNDRIP, preamble) or their “physical and cultural reproduction, according to their habits, customs and traditions” (1988 Constitution, art. 231, paragraph 1) require knowledge.

Homepage of Povos Indígenas no Brasil: https://pib.socioambiental.org

The above information on the different indigenous peoples in Brazil was taken from the webpage of the ISA (Instituto Socio-Ambiental), which brings together the research of the CEDI (Centro Ecumênico de Documentação e Informação) formed in the 1970s.  The site, constantly updated, provides a survey of each indigenous people, with ethnohistorical and ethnographic information, and geo-referencing of the villages and their legal status. It is an invaluable effort to condense the results of academic research, the work of missionaries, journalists, photographers and volunteer supporters, in addition to the action of the communities themselves. Initiatives like this help to give visibility to the diversity of the groups that form the country’s mosaic and highlight their importance. Another example I would like to mention is the Digital Guarani Map prepared by the Centro de Trabalho Indigenista (an organisation that brings together academics and activists) and the Guarani Yvyrupa Commission (a collective of Guarani Indians), which identifies the villages currently occupied by the Guarani, but also the unoccupied areas that were located based on ethno-historical research.

Knowledge is also necessary to enforce territorial rights. For the identification, delimitation, and demarcation of an indigenous land, an administrative process is carried out in which a working group is created with anthropologists, historians, geographers, etc. This group prepares a technical report about the history of the group, oral history, with information on material culture/myths/cosmology/rituals, and demographic and geo-spatial data. The document might serve as evidence in the administrative process and in the judicial process (if the issue has been taken to court). Also the interpretation of the Constitution (Art. 231) cannot be made exclusively with legal dogmatics. The Constitution speaks of “traditionally occupied lands”. Now, knowing whether a land is “traditionally” occupied requires knowing “the uses, customs and traditions”. The anthropological and ethnohistorical report therefore is not only proof, but provides the necessary knowledge to complete the meaning of the Constitution. The Supreme Court has already decided that “possession” of indigenous land is not possession in the civil law sense, but is “constitutional possession”. Constitution refers back to an ecology of knowledge: native knowledge and co-production of knowledge (Indians and academics).

I would like to mention another example of knowledge mobilisation. Initiatives by Indians seeking compensation for past acts have begun and are tending to increase. As transitional justice in Brazil in the criminal sphere has been blocked by the Supreme Court, in the civil sphere, in Brazil and in the jurisdiction of other countries, the discussion is only just beginning. The UNDRIP (article 28) sets a standard in this respect. History could be mobilised to represent the violation/damage and justify the request for compensation.

Corn that travels

To conclude with a positive experience, in June 2019, a workshop was held at the USP Law School, co-organised by Saju-Tuíra, the Moitará research group (University of Brasilia) and the State University of Roraima. It brought together indigenous leaders, the first state employee judge to self-identify as indigenous, and indigenous students and researchers to discuss the indigenous condition in the cities.

Different corn species cultured in the Aldeia Kalipety, © Samuel Barbosa

The highlight was the visit to the Kalipety village of the Guarani Mbya in the Indigenous Land (tekoa) Tenondé Porã, part of the megalopolis of São Paulo. In the prayer house, Opy, the Guarani told us about the history of the village, the struggles to demarcate the area and the lack of adequate public policies to meet their needs. We were introduced to the work of recovery of the diversity of grain species (potato and corn). The village has stood out as a reference in agro-ecological practices based on the traditional knowledge of the Guarani. This initiative is triggered by the movement of people and seedlings between Guarani villages in Brazil and countries such as Argentina and Paraguay. Such initiatives contribute to revitalising traditional knowledge and connecting groups divided by international boundaries. They are supported by UNDRIP (e.g. articles 31 and 36) and the legal regime mentioned above in the spirit of protecting and enhancing difference.

[1] For an introduction to the concept of indigenous ethnogenesis, see the article by José Maurício Arruti.

This blog entry is part of a series of blog posts on the UNDRIP and its significance from a legal historical point of view.

Cite as: Barbosa, Samuel: Legal regime for a mosaic of differences: 25th anniversary of UNDRIP – experiences in Brazil, legalhistoryinsights.com, 27.10.2022, https://doi.org/10.17176/20221103-132630-0