Thursday, 12 January 2012

Brazilian High Court on Indigeneity and the Role of the State in Mediating Indigenous Relations to Settler Society

A few days ago, the Brazilian High Court (Superior Tribunal de Justiça or STJ) issued a judgment determining that indigenous persons must always be represented by the National Indigenous Peoples Foundation (Fundação Nacional do Índio or FUNAI) in court proceedings.

In this case, an indigenous person of the kokama people, based on the border between Brazil and Colombia, was arrested in Manaus (capital of the Amazonas state in Brazil, the largest city in the Amazon rainforest area) in possession of cocaine. FUNAI applied to the local court for the status of third party intervening on behalf of the indigenous person, but its request was denied, on the grounds that the indigenous person, by possessing a wide array of civilian and military personal documents (such as a taxpayer’s code, military draft registration, and voter’s card), showed that he was sufficiently integrated in society, therefore not requiring representation by FUNAI.

The Brazilian High Court disagreed, saying that, since the 1988 Constitution, rules on civilian capacity of an indigenous person are irrelevant, and that it is the duty of the State to represent indigenous peoples and assist indigenous individuals before the judicial system. The judge who wrote the Court’s opinion said that there is a presumption of indigeneity, and that the first instance judge erred by not taking into account the fact that the person identified himself primarily as indigenous, despite all his documents showing he was integrated in society.

The first instance court in this case seems to work from an indigenous / non-indigenous dichotomy that suggests that a person will only be considered indigenous if it is not at all in contact with settler society, or takes any part in the settler polity. Or at least this seems to be the understanding of the first instance court, by using an outrageously antiquated rule on civilian capacity in Brazilian law, which deems indigenous peoples to have the same legal capacity as a five-year old. In all fairness to the Brazilian legislator, the 2002 Civil Code attempted to correct this: while the 1916 Civil Code plainly said that indigenous persons had no capacity whatsoever, the 2002 Code simply determines that indigenous capacity will be determined by special legislation. But then the special legislation in question is the “Indian Rights Act”, an incredibly assimilationist piece of legislation dating back to 1973, which, when regulating capacity, simply repeats the rules of the 1916 Civil Code. A new statute on the rights of indigenous peoples is currently under discussion by the Brazilian Congress, but the 1973 act is still good law until then. Unless, of course, the law was to be applied in light of the 1988 Constitution, which grants some form of recognition to indigenous peoples, and tries to move away from the assimilationist tone of the 1973 statute. But then the implementation of the 1988 Constitution still happens through the 1973 act, which makes the prevailing tone still one that is rather assimilationist, or at least paternalistic.
And then comes the High Court’s decision, which agrees with FUNAI in that they should be representing the indigenous person, because no degree of “integration into the national communion” (language of the 1973 act) can deprive a person of their indigenous identity.

So far, so good, except that the tendency is to translate a duty of assistance that should come only so as to correct informational, cultural and power imbalances between indigenous peoples and settler society into a paternalistic take of indigenous people as those poor little individuals who could not possibly take full responsibility for their actions. While attempting to combat the exclusion of indigenous individuals, this attitude disenfranchises them, victimizes indigenous persons and strips them of the agency the law should be guaranteeing them.

While the High Court’s decision is a welcome step in securing the achievements of indigenous peoples in Brazil, it also shows there is still a long way to go, as far as the law is concerned, in order to put indigenous peoples in their rightful place as full participants of society, as opposed to marginalized beings who need coddling by a State operating under still alarmingly assimilationist rules and impulses.

Source STJ.

Some of the Brazilian Legislation can be found here.

Written by Lucas Lixinski.

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