international journal on minority and group

rights 25 (2018) 183-209

brill.com/ijgr

The Rights of the Indigenous Peoples of Brazil:

Historical Development and Constitutional
Acknowledgment
Pedro Calafate
Professor, Faculty of Letters, Department of Philosophy, University of Lisbon,
Lisbon, Portugal
pedrocalafate@hotmail.com

Abstract

The historical roots of the concept of original rights of the indigenous peoples of Brazil
concerning the lands they traditionally occupy, enshrined in Article 231 of the Brazil-
ian Federal Constitution of 1988, refer to the law of nations, taught by Iberian teachers
of the 16th and 17th centuries, particularly with regard to the scholastic concept of do-
main. We also show how the concept of Indigenato, formulated in 1912 by João Mendes
Junior, considered over the past decades as the one that best illuminates Article 231 of
the Brazilian Constitution of 1988, is entirely founded on this Iberian school of natural
law and law of nations, inviting us to a dialogue with the classics.

Keywords

indigenous peoples of Brazil – Indigenato – original rights – natural law – law of

nations – acknowledgment

1 Introduction

The early 1990s were marked by the emergence, in the centre and south of
the American continent, of the indigenous question,1 greatly stimulated by the
end of the Cold War, which helped to create new spaces for the affirmation of

1 J. Bengoa, La Emergencia Indígena en América Latina (Fondo de Cultura Económica, Chile,

2007).

© koninklijke brill nv, leiden, 2017 | doi 10.1163/15718115-02502004

184 Calafate

the diversity of human cultures, outside the destructive dilemma defined by

the two superpowers’ sphere of influence.
Throughout the centre and south of the continent, Native American com-
munities were no longer seen merely as groups of ‘peasants’; rather, they
­increasingly asserted their ethnic and cultural identity, as they claimed ances-
tral rights that, being ancient and fundamental, could be considered ‘original
rights’.
In the particular case of Brazil, which is the focus of the present analysis,
the end of the military regime (1964–1985) helped to create the right political
and social environment to develop a democratic Constitution (1988), charac-
terized by a sense of humanity and openness to the ‘other’, which emphasized
the conscience of a historic debt that, by highlighting the centrality of the vic-
tims, stressed the importance of the concept of restitution, as a specific aspect
of reparation.
This is the reason why the Article 231 of the Brazilian Constitution of 1988
“acknowledges” the “original rights” of Indians to the land they “traditionally
occupy”, as well as their practices and customs.2
By defining such rights as original, the Constitution is referring to a right
born with its possessor which legitimizes a kind of possession that precedes
the colonial occupation and its juridical-political institutions. It is important
to emphasize that this is an original right, since it acknowledges a kind of im-
memorial possession of the land by the descendants of its first settlers.
By ‘acknowledging’ those rights, the Constitution refers back to a pre-­
existing juridical situation which is considered to be still in effect. That is, the
Constitution neither grants nor bestows such rights, but acknowledges the va-
lidity of a right that persists in Brazilian society prior to the state.
However, in constitutional terms, to talk about original rights is not the
same as referring back to the right of self-determination and its political con-
sequences, because the Indians and their communities are subject to national

2 The Constitution of the Federal Republic of Brazil, 5 October 1988: “Article 231. Their social
organization, customs, languages, beliefs and traditions are acknowledged to Indians, as well
as their original rights over land they traditionally occupy, it being the Union’s task to de-
marcate, protect and enforce respect over all their goods. § 1 Land traditionally occupied by
Indians is the land they inhabit permanently, they use for their productive activities, those
indispensable for the preservation of the environmental resources necessary for their well-
being and those necessary for their physical and cultural reproduction, according to their
uses, customs and traditions. § 2 The land traditionally occupied by Indians is destined for
their permanent possession, for their exclusive use of the riches of the soil, rivers and lakes
existant in them.” Cf. G. Santilli (ed.), Os Direitos dos Índios e a Constituição (Núcleo de Direi-
tos Indígenas e Sérgio Fabris Editor, Porto-Alegre-rs, 1993).

international journal on minority and group rights 25 (2018) 183-209

The Rights of Indigenous Peoples of Brazil 185

sovereignty. On the other hand, Article 20 Indent xi of the Federal Constitu-

tion establishes that “The lands occupied by the Indians … are property of
the Union”. In this legal framework, indigenous land is a public, federal asset,
owned by the Union, despite Article 21(1) of the American Convention on Hu-
man Rights establishing that “everyone has the right to use and enjoyment of
his property”.
In fact, in the case of the Brazilian Federal Constitution of 1988, due to a sup-
posed ‘inability’, and with the stated aim of avoiding ‘disseisin’, the indigenous
peoples are not holders of the property rights of the lands and resources they
have historically occupied and, therefore, do not have the right to legal recog-
nition as owners of their territories, nor can they obtain formal legal property
titles of their lands. The Constitution solely establishes possession of the land
by the Indians. This is where the constitutional discredit of the terms ‘prop-
erty’, ‘territory’ and ‘nation’ derive from.
In and by itself, an original right is neither posited by the state nor finds its
single source in the will of the lawmaker, since it predates the state or, at least,
the European model of state sovereignty consecrated in Westphalia (1648).
Consequently, Article 231 of the Brazilian Constitution gave proof of the su-
perseding of both juridical positivism and voluntarism by referring back to the
effectiveness of an older law while opening the way to a new dialogue between
the law and other sources of knowledge, namely anthropology, ethnology, phi-
losophy and history.
By superseding the control of the state over the sources of law, the Constitu-
tion acknowledged another source and juridical order based upon the prin-
ciples of natural law and the law of nations (jus gentium), also acknowledging
that the subjects of those rights, in the words of the Brazilian constitutional-
ist Pontes de Miranda regarding the Constitution of 1967, “do not exist as the
law creates and regulates them; they exist despite laws aimed at changing or
conceptualizing them. They are not the outcome of laws; they predate them;
they do not have the content provided by the laws, it is provided by the law of
nations”.3
Immemorial rights of indigenous peoples over the land they traditionally
occupy, being acknowledged and not granted nor bestowed, determine the
act of demarcating as being only declaratory and not constitutive. Similarly,
by assigning the responsibility of demarcation of Indigenous Land to the ex-
ecutive and not to the legislative power, the Federal Constitution of 1988 gave
this act an eminently technical, non-political nature, despite current efforts

3 Pontes de Miranda, Comentários à Constituição de 1967, Tome iv (Forense, 3rd ed., Rio de
­Janeiro, 1987) p. 621.

international journal on minority and group rights 25 (2018) 183-209

186 Calafate

being made in the opposite direction through the attempted passing of pec
215/2000 which assigns such responsibility to the legislative power, where in-
digenous peoples have no specific representation, unlike agricultural and simi-
lar interests.
However, this traditional type of ownership is not an orthodox figure of civil
law recognized by public charter; in fact, it is a “heterodox institution of consti-
tutional law”, imposing a cultural interpretation of the sources of law, as stated
by Carlos Ayres Britto, Minister of the Federal Supreme Court of Brazil (stf).4
In this regard, Luiz Armando Badin considers that the concept of ‘tradition-
al occupation’, taken as the source of original rights over the land, is a difficult
concept

because it demands a change in cultural perspective: the rights of Indi-

ans are defined in accordance with their usages, customs and traditions,
and not in accordance with civil law. Difficult because the constitutional
concept of indigenous land makes reference to scientific – historical,
anthropological, social and biological – elements that jurists, with their
deep-seated culture of decades of hardened positivism, are not used to
taking into account in their analyses. Difficult because the concept is
comprehensive

and determines, after all, “the unenforceability of traditional civil law regard-
ing indigenous property and possession”.5
In fact, since it emphasizes the importance of the validity and transmission
of different usages and customs throughout time, Article 231 of the Constitu-
tion of 1988 makes room for the acknowledgement of the legitimacy of dif-
ferent, numerous worldviews, namely those where preservation prevails over
the exploitation of natural resources as the cultural expression of the human
being’s integration in nature.
As written in a ruling of the Federal Supreme Court by Minister Carmen
Lúcia: “the rights of Indians to their land [are] a matter of formation and con-
formation of their worldview and choice of life”,6 previous to the Brazilian Fed-
eration, as well as to all its federated constituents.

4 Minister Carlos Aires Britto (draftsman), in Indigenous Land Raposa Serra do Sol, 19 March
2009, Federal Supreme Court, Full Court, para. 11.3.
5 L. Armando Badin, ‘Sobre o Conceito Constitucional de Terra Indígena’, 190 Arquivos do
Ministério da Justiça, Brasília (July–December. 2006) p. 137.
6 Ruling Vote of Minister Carmen Lúcia, in Raposa Serra do Sol case, supra note 4, para. 21.

international journal on minority and group rights 25 (2018) 183-209

The Rights of Indigenous Peoples of Brazil 187

This intends to deepen the initiative carried out a year later by Convention
169 of the International Labour Organization (1989) that denied the purpose
of integrating and assimilating indigenous communities to socially and po-
litically dominating models of cultural diversity in light of the universal lines
prevailing up to that time and opened the way to the acknowledgement of
cultural diversity as human heritage, as would also happen with the unesco’s
declaration on cultural diversity in 2002.
In short, Article 231 of the Brazilian Constitution of 1988 invokes an impre-
scriptible juridical situation. Being acknowledged but not granted or bestowed,
this situation prevails over public charters or other titles of ownership favour-
able to non-Indians in land traditionally occupied by indigenous peoples. This
qualified occupation should be understood as referring, on the one hand, to
the perdurability of the occupation and, on the other hand, to the mode of oc-
cupation, i.e. the preservation of usages and customs which, however, are not
able to prevent acculturation and cultural exchange of free choice.
Therefore, the Brazilian Constitution does not provide sanctuary for the
misguided, exaggerated and caricatured interpretation pointing to the return
of the whole Brazilian territory to indigenous communities on the basis that
they once inhabited it. Likewise, it does not support the isolation of those
peoples, binding them to a mandatory inertial repetition of cultural traditions
and depriving them of the rewarding cultural exchanges of their own choice
without these choices entailing any loss of constitutional protection.
In the first case, to those torpedoing the Constitution with the absurd argu-
ment that, taken to its ultimate consequence, would mean to give back Brazil
to its original peoples, one must reply that what it demands is respect for per-
manent occupation of areas required for the cultural survival of indigenous
communities at the time of the implementation of the Constitution. Evidently,
such permanence does not entail, in and by itself, the existence of buildings or
other structures attesting possession, in the terms of civil concepts, as empha-
sized by Victor Nunes Leal’s – judge of the Federal Supreme Court – historical
1961 ruling, showing the importance of relating the concept of permanent oc-
cupation to the broader concept of a people’s habitat.7
It also states that currently unoccupied indigenous habitat areas should be
respected, if it is proven that indigenous peoples were expelled from them,

7 Ruling Vote of Minister Victor Nunes Leal, Federal Supreme Court, Full Court, Decision Re-
garding the Extraordinary Appeal no. 44.585 – Mato Grosso, 30 August 1961: “this is not com-
mon property; what was reserved was Indian land…, neither the concept of possession nor
of dominion are at stake in the civil sense of the terms, but rather the habitat of a people”,
pp. 471–472.

international journal on minority and group rights 25 (2018) 183-209

188 Calafate

compulsorily or otherwise, through the support of historical and anthropologi-

cal studies.
Regarding arguments of cultural insularity to ensure possession classified
as traditional and the difficulty in identifying who is truly indigenous in the
21st century, with original claims of rights upon the land, the Constitution is
open to wide interpretation. This is incompatible with a miraculous stop in
time that would deprive its implements of practicality, as stated by those ar-
guments. This entails that cultural exchanges be seen not as a loss of ethnic
identity – as declared by Carlos Ayres Britto – but as a ‘the sum of worldviews’,
‘summation and not subtraction’, ‘cumulative gain’ and ‘community inclusion
through ethnic identity’.8
Hence, the Constitution does not state that Brazilian Indians must forever
stand in the same historical moment as a kind of laboratory for anthropolo-
gists. The issue is to understand, in the words of Minister Carmen Lúcia, that
“it is on the basis of their condition that they may regard themselves as free to
choose. That includes the choice to be absent or surpass that space and that
way of living”.9 In a different passage of her ruling on the Raposa Serra do Sol
case in Roraima, she adds that we should remain open to the complexity and
plurality of both the notions of truth and of worldview, given that “although
it might be difficult for some people to understand, the giving of the soul can
take place from Monte Roraima”.10
Therefore, for those two stf judges, community inclusion does not occur
through the loss of the identity of its parties towards an impoverishing uni-
formity. On the other hand, myths and legends suppose another kind of truth
besides the one established by secular rationalism, a truth enabling us to build
our world and a meaningfulness which we are not required to justify since it
justifies us.

2 The Concept of Indigenato

This stage of constitutionalism, open to the dynamics of time and to the com-
plexity of the human fields of research, leads us back to a decisive moment
in 1912 through the work of João Mendes Júnior, a Professor in the Faculty of

8 The expressions between quotation marks are part of the Decision of Minister Carlos
Aires Brito, in Raposa Serra do Sol case, supra note 4, para. 4.
9 Vote of Minister Carmen Lúcia, in Raposa Serra do Sol case, supra note 4, para. 30.3.
10 Ibid.

international journal on minority and group rights 25 (2018) 183-209

The Rights of Indigenous Peoples of Brazil 189

Law in the University of São Paulo. In his book O Índio Brasileiro: seus Direi-
tos ­Individuais e Políticos, João Mendes Júnior proposes that the acknowledge-
ment of original rights of the indigenous peoples on occupied land goes back
to Portuguese colonial legislation whose most relevant core he summed up in
the concept of Indigenato.
This concept put forward by Mendes Júnior, is deemed by a considerable
number of Brazilian constitutionalists and magistrates of both the Federal Su-
preme Court and regional courts as the most apt to clarify Article 231 of the
Federal Constitution of 1988, as well as the constitutional norms expressed in
previous constitutions regarding the rights of Brazilian native peoples.
This means that, according to Mendes Júnior and in the terms of subsequent
interpretations of the concept of Indigenato he proposed, Portuguese colonial
legislation of the 17th and 18th centuries regarding original rights of the Indians
over the land remained active. In fact, while analysing Regulation 1318 of 30
January 1854 on the subject of indigenous right to land, Mendes Júnior claims:
“The land was theirs in virtue of the right of reservation, founded on the April
1, 1680 charter, which has not been revoked”.11
In this context, to search for the bases of the concept of Indigenato put for-
ward in 1912 in the Portuguese colonial laws of the 17th century, and to state,
as many recently have, that this concept of Indigenato is the best at clarify-
ing the Brazilian constitutional doctrine of 1988 regarding original rights of
indigenous peoples to the land they traditionally occupy might seem a strange
and unexpected anachronism insofar as it entails a logical bond between the
jus gentium, present in the Portuguese crown’s legislation of the 17th century,
and the “heterodox figures of constitutional law” inherent to Article 231 of the
Brazilian Constitution (1988), currently in effect.
Nevertheless, this historical dialogue seems fruitful, as we shall try to show.
In fact, in a text of historical import whose effectiveness is still recognized,
Professor João Mendes Júnior states that:

Indigenato is an innate title and occupation is an acquired title. Although

Indigenato is not the only true juridical source of land possession, every-
one recognizes that it is, in the terms of the Charter of 1 April 1680, “the
primary [source], naturally and virtually reserved” … In consequence,
Indigenato is not a fact dependent on legitimization, while occupation,
since it is a posterior fact, is dependent on legitimizing requirements.

11 J. Mendes Júnior, O Índio Brasileiro. Seus Direitos Individuais e Políticos (Typ Hennies Ir-
mãos, São Paulo, 1912) p. 57.

international journal on minority and group rights 25 (2018) 183-209

190 Calafate

The primarily established Indian has sedum positio,12 which constitutes

the foundation of possession; but the Indian, in addition to jus posses-
sionis, has jus possidendi, which is already acknowledged and prelimi-
narily legitimized by the Charter of 1 April 1680 as an innate right. Only
­possessions under the power of an occupant (Article 3 of the Law of 18
September 1850) are subjected to legitimization…; regarding established
Indians, there is no simple possession, but immediate title of domain;
therefore, there is no possession to be legitimized, there is a domain to be
acknowledged and original and preliminarily reserved right.13

In his text, he distinguishes between the European occupation from the colo-
nization period to his day (1912), which requires legitimization since it is an
acquired title, and the primeval and original settlement of the American con-
tinent by its first inhabitants and their descendants, which does not require
legitimization since it is innate, in the terms of the concept put forward by Pau-
los, the late-classic jurist: sedum positio, that is, an immediate title of domain
not subjected to other forms of legitimization.
However, the concept of Indigenato was brought into the 21st century by
many Brazilian constitutionalists and magistrates as the doctrine most capa-
ble of bringing light to Article 231 of the Constitution of 1988. The following
six references are examples of this effort. First, the opinion of Professor José
Afonso da Silva, in his renowned Course on Positive Constitutional Law:

Constitutional devices on the relation between Indians and their land

and the acknowledgment of their original rights to it have only conse-
crated and consolidated Indigenato, the old traditional Luso-Brazilian
lawful institution with its roots in the early days of the Colony, when the
Charter of 1 April 1680, confirmed by the law of 6 June 1755, establishing
the principle that, in the land awarded to individuals, rights of Indians
would be reserved, since they are their primary natural masters.14

This conceptual articulation of Portuguese legislation from the colonial period

and legislation from the 21st century is not confined to José Afonso da Silva.

12 A saying by the late-classical jurist Paulos, in the Digest-D 41.2.1pr, to express the founda-
tion of possession, a power of possession intimately connected to a given object that is
the natural possession of the one occupying the land. Paulos calls attention to the etymo-
logical origin of possessio, a word that is derived from positio and sedes.
13 Júnior, supra note 11.
14 J. Afonso da Silva, Curso de Direito Constitucional Positivo (Malheiros, 22nd ed., São Paulo,
2003) p. 830.

international journal on minority and group rights 25 (2018) 183-209

The Rights of Indigenous Peoples of Brazil 191

A study by Fernando da Costa Tourinho Neto, Judge of the Federal Regional

Court of the 1st Region, published in 1993 and entitled ‘The Original Rights of
Indians over Occupied Land and Their Juridical Consequences’, establishes
that: “[t]he condition of Indians as the first natural owners of the land of Brazil
has been acknowledged since the Royal Charter of 1 April 1680. The foundation
of their right to land is based on Indigenato, which is not an acquired but an
innate right”.15
In 2013, in his doctoral thesis published in Curitiba, Isaías Montanari Junior
emphasized that “[t]he constitution of 1988 harbored the institution of Indi-
genato, put forward by João Mendes Júnior in 1912”, a thesis that is, according to
the author, “held by the majority of current doctrines”. Furthermore,

the doctrine of João Mendes Júnior holds that Indian land is reserved by
the Charter of 1 April 1680, which was not repealed … In spite of having
been put forward at the beginning of the previous century, it is still topi-
cal since it effectively helps to shed light on the constitutional text.16

The study by Judge Antônio Rulli Júnior is also worth mentioning, even though
it concerns the Constitution of 1969 and its Article 198. This study, published
in the Juridical Bulletin of the Pro-Indian Committee of São Paulo (Boletim
Jurídico da Comissão Pró-Índio de São Paulo) in 1986, is particularly relevant
because it was intended to become the doctrine concerning the trial of con-
temporary disputes on land possession in the State of São Paulo, namely con-
cerning the Guarani Indians. Judge Antônio Rulli considers Indigenato to be
“[c]onsecrated in the Charter of 1680, in the Federal Constitution [of 1969] in its
Article 198 and in the Indian Statutes (Law 6.001/73)”.17 He also calls attention
to the fact that “Indigenato is a Luso-Brazilian creation. It is a Luso-­Brazilian
institution”.18 He could thus clearly foresee the importance of creating an ex-
ception to the principle of isonomy on the basis of the acknowledgment that,
“indigenous community is not the same as association of Civil Law – j­uridical
person. The indigenous community is a natural society that should not be

15 F. da Costa Tourinho Neto, ‘Os direitos originários dos índios sobre as terras que ocupam
e suas consequências jurídicas’, in J. Santilli (ed.), Os Direitos dos Índios e a Constituição
(Núcleo de Direitos Indígenas e Sérgio Fabris Editor, Rio Grande do Sul, 1993) p. 40.
16 I. Montanari Junior, Terras Indígenas e Cooperação Internacional – Análise do Protal  –
­Programa Piloto de Proteção das Terras Indígenas da Amazônia Legal (Juruá Editora,
­Curitiba, 2013) p. 105.
17 A. Rulli Junior, ‘O Indigenato e os índios Guarani de São Paulo. Exceção ao Princípio da
Isonomia’, 5:6 Boletim Jurídico da Comissão Pró-Índio de São Paulo (1986) p. 36.
18 Ibid.

international journal on minority and group rights 25 (2018) 183-209

192 Calafate

­ istaken for conventional associations of Civil Law”.19 Antônio Rulli also men-
m
tions the source of his view: “In the Charter of 1680, the King [of Portugal]
stated, while establishing the Indigenato, that the rights of Indians, of which
they are the legitimate and natural owners, should be reserved”.20
The relevant opinion of Professor Temístocles Brandão Cavalcanti, author
of the Statute of the Indian (Law no. 601 of 19 February 1973) writes in his com-
mentary to the Federal Constitution of 1946:

The Constitution ensures the jus possidetis (in fact, the Indigenato) of
land occupied by Indians, on the condition that these are not transferred.
It is the acknowledgement of the immemorial possession of the owners
of the land, of the descendants of those who first populated it and who,
to this day, remain foreign to the habits and customs of the colonizing
civilization.21

Lastly, the historical ruling of the case of the Raposa Serra do Sol (2009),22
which was intended to start a constitutional era of compensation of histori-
cally accumulated disadvantages. Despite the progresses and regresses of this
century-old struggle, the stf then commanded that the possession of almost
1,800,000 hectares of the region called Raposa Serra do Sol, in the State of Ro-
raima, be restituted to about 19,000 Indians, along with a large set of specified
restrictions.
Particularly interesting in this case are the Decision of Minister Carlos Ayres
Britto and the Ruling Vote of Minister Carmen Lúcia, which have historical,
anthropological and juridical significance.
As pointed out in our ‘Introduction’, the mention of original rights in Article
231 of the Federal Constitution translates, to the draftsman Judge, a subjective
juridical situation older than any other, in such a way as to “prevail over pos-
sible public deeds or titles legitimating possession in favour of non-Indians”.
Consequently, Carlos Britto understands that term as having the sense of
‘primeval’, given that it was pre-European, considering it to be worthy of su-
perlative juridical qualification and classifying as void all acts aimed at the oc-
cupation by non-Indians of land traditionally occupied by Indians. Hence, the
draftsman states, “the right of historic continuity prevails over the acquired

19 Ibid.
20 Ibid., p. 37.
21 T. Brandão Cavalcanti, A Constituição Federal Comentada, Volume v (José Konfino, Rio de
Janeiro, 1959) p. 242. The cited commentary addresses the Article 5, inc. xv, of the Federal
Constitution of 1946.
22 Raposa Serra do Sol case, supra note 4.

international journal on minority and group rights 25 (2018) 183-209

The Rights of Indigenous Peoples of Brazil 193

right of registered title”, considering furthermore that this leads to a “wider

[concept] of national development, more able to incorporate Indigenous
realities”.23
Therefore, the qualified occupation, because it was traditional (in the sense
of the traditional customs open to intercultural dialogue), of land is the consti-
tuting title itself of the right to permanent possession. And that is the reason
why the act of land demarcation has a merely declaratory character.
The Ruling Vote of Minister Carmen Lúcia at this trial is even more enlight-
ening, since it develops arguments that are in agreement with the Decision
drafted by Minister Carlos Britto. As a matter of fact, Carmen Lúcia begins by
emphasizing that the issue was “the guarantee of Indigenato, put forward by
Professor João Mendes Júnior”, which, in their view, which in effect, thus, does
not require from the indigenous possession any kind of legitimization and
registry.
In paragraph 11 of her Ruling Vote at this trial, she wrote, in regard to the
well-respected work of João Mendes Júnior, that: “Indigenato was already ac-
knowledged at that time – and this was only reinforced by the Brazilian Consti-
tutions from 1934 to 1988 –, the distinction between the Indigenous possession
of their land and possession by occupation”.24 This means that Indigenato (and
hence the Charter of 1 April 1680) produces, as a juridical concept, its effects
independently of the explicit constitutional foreknowledge, since she con-
siders, in paragraph 14 of her Ruling Vote, that it is “evidently and decisively”
acknowledged.
Therefore, the juridical institution of Indigenato is presented as a legitimate
exception to the principle of isonomy because it regards a right that is dis-
tinct from the rights of the remaining Brazilian citizens, given that it stands as
an “autonomous, special right independent from the general system”,25 recog-
nized by all as consecrated by the Portuguese crown in 1680.

23 Ibid., Minister Carlos Britto (draftsman), Decision: “12. ORIGINAL RIGHTS. The rights of
Indians over traditionally occupied land were constitutionally acknowledged and not
simply bestowed, which gives a declaratory rather than constitutive nature to the act of
demarcation. Declaratory act of a preexisting active juridical situation. That is the reason
why the Magna Carta called them ‘original’, to translate a right more ancient than any
other so that it prevails over so-called acquired rights, even those materialized in public
deeds or legitimization titles of possession in favor of non-Indians. These acts were de-
clared by the Constitution itself as ‘void and extinct’ (§ 6 of the article 231 of the Federal
Constitution)”.
24 Ibid.; vote of Minister Carmen Lúcia, in Raposa Serra do Sol case, supra note 4, para. 11.
25 M. António Barbosa, Direito Antropológico e Terras Indígenas no Brasil (Fapesp, São Paulo,
2001) p. 66.

international journal on minority and group rights 25 (2018) 183-209

194 Calafate

3 Indigenato and Its Foundation in Portuguese Legislation:

The Royal Charter of April 1, 1680 and the Law of 6 June 1755

As seen above, Professor João Mendes Júnior and the commentators of his
work several times mention the foundational dimension of the Charter of 1
April 1680, as well as the Law of 6 July 1755. It is therefore necessary to analyse
the discourse of these laws, but not without a previous clarification of a crucial
principle of contextualization. The main purpose of the Portuguese crown’s
legislation regarding the Indians of Brazil was the evangelization of the Ameri-
can peoples in the framework of their integration into Christian standards of
civilization. This also entailed their integration in forms of social and political
life based on a European matrix. As stated in the Portuguese legislation regard-
ing Brazil, the core purpose was “to civilize the Indian of that State, banish-
ing barbarity and Gentilism by propagating the Christian doctrine”,26 but, in
the words of the Charter of 1 April 1680, “without depriving a natural right to
freedom to those endowed by nature and who, by natural and positive law, are
truly free”.27
Moreover, the thesis that the evangelization “is my first concern”, followed
by “the increase of the State” or “the good preservation of the State of those
parts” is time and again stated throughout the colonial laws signed by the kings
of Portugal, along with an emphasis on the acknowledgment and respect by
the natural freedom of American indigenous peoples.
In fact, João iv, with the Law of 10 November 1647, had already proclaimed
that: “the Gentiles are free…, and that the Indians may freely serve and work
with whomever cares for them and pays best for their work”.28
Although older, the royal Charter of 30 July 160929 is no less emphatic:

And so that the major excesses – that may occur if the aforementioned
captivity is allowed in some cases – are cut short and the door is closed to
this once and for all, I had this Bill made with the support of my Council
in which I declare free all the Gentiles of those parts of Brazil accord-
ing to the Law and their natural birth, both those already baptized and
introduced to our Catholic Holy Faith and those still living as Gentiles, in

26 Lei de 6 de Junho de 1755, in L. Maria Cardoso Naud, ‘Documentos sobre o Índio Brasileiro
(1500 a 1822), 2a Parte’, 8 Revista de Informação Legislativa (1971) p. 256.
27 Alvará de 1 de Abril de 1680, in Naud, supra note 26, p. 257.
28 Lei de 10 de Novembro de 1647, in Naud, supra note 26, p. 258.
29 From 1580 to 1640 the crown of Portugal was united with the Spanish crown.

international journal on minority and group rights 25 (2018) 183-209

The Rights of Indigenous Peoples of Brazil 195

a­ ccord with their rites and ceremonies; all shall be treated and consid-
ered free persons, as they are; and they shall not be constrained to serve,
nor to anything else, against their will; and the persons who make use of
them in their estates will pay for their work as they are required to pay to
all other free persons who are in their service.30

Going even further back in time, we find the Charter of 29 July 1597, which
states that the Gentile should be deemed “master of his estate [in villages] as
he is in the mountain range”.31
The laws signed by the Marquês de Pombal (4 April 1755) in the name of
José I are very similar, mandating that “all those deemed as Indians or those
who look like them shall be considered free without being dependent on proof
other than the full proof resulting from the assumption of Divine, Natural and
Positive Law which stands in the place of freedom”.32
But acknowledgment of natural freedom was not incompatible with the
purpose of religious and civilizational integration. It was also not incompat-
ible with the existence of legal titles of slavery in exceptional cases – mostly
the just war – which, however, were forbidden by the Charter of 1 April 1680:
“closing the door to pretext, simulation and deceit with which malice, abusing
the cases of just captivity, introduces the unjust … I command and rule that
henceforth no Indian of the referred State may be held captive in any case at
all, including those exceptions stated in the referred laws, which are hereby
revoked”.33
In any case, the purpose of integration and of cultural and civilizational as-
similation remained explicit not only in João Mendes Júnior himself, but also
in all Brazilian constitutions with the exception of the aforementioned Consti-
tution of 1988, which proclaims the right of Indians to remain Indians without
any kind of constraints.
The proof of its pioneering character lies in the fact that the Internation-
al Labour Organization would need another year before approving Conven-
tion 169 on the Rights of Indigenous Peoples in Independent Countries, the first

30 Carta Régia de 30 de Julho de 1609, in J. Justino de Andrade e Silva, Collecção Chronológica

de Legislação Portuguesa, 1603–1612 (Imprensa de J.J A. Silva, Lisboa, 1854) pp. 271–272.
31 Alvará e Regimento sobre a Liberdade dos Índios, 26 de Julho de 1596, in Serafim Leite,
História da Companhia de Jesus no Brasil, Volume 2 (Portugália/Civilização Brasileira, Lis-
boa/Rio de Janeiro, 1938–1950) pp. 623–624.
32 Alvará de 4 de Abril de 1755, in Naud, supra note 26, p. 258.
33 Alvará de 1 de Abril de 1680, in Naud, ibid., p. 257.

international journal on minority and group rights 25 (2018) 183-209

196 Calafate

­international rule that breaks with the purpose of assimilation. Similarly, thir-
teen years later the unesco Universal Declaration on Cultural Diversity (2002)
would be approved and, five years later, the United Nations Declaration on the
Rights of Indigenous Peoples (2007), where this right to difference is established
as the heritage of the peoples and the whole of mankind.
Hence, the myth of the linear, universal and one-way progressive dynamics
of historical movement – present in the major philosophies of history from
Augustine to the 17th, 18th and 19th centuries – was the rule in juridical-political
legislation until 1988. It is thus fitting to avoid anachronisms by not expecting
from time and from history what they are not always able to provide.
For the Portuguese (and Spanish) kings of the modern age, inheritors of
the Christian conception of time, mankind followed a single and universaliz-
able line, as if it possessed a well-ordered scholarly syllabus encompassing all
peoples in its movement. That would be history’s “ought”, to which the being of
history should be raised on the basis of the natural freedom of men.
Therefore, in light of Portuguese legislation, Brazilian Indians should be
persuaded to stop being Indians. To that end they would have to be ‘rescued’
from that condition, without deceit or malice, moving into the vicinity of colo-
nial settlements in view of their progressive integration into the structures of
civil society undergoing formation in Brazil.
In the words of Beatriz Perrone-Moisés regarding Portuguese colonial leg-
islation in Brazil, “when those documents were written, conversion was the
supreme value and the advantage of being Christian was undeniable”.34
The peoples would thus be persuaded to ‘come down’ from the mountain
ranges and be handed over to the care of religious orders, particularly Jesuits
and Franciscans, in constant conflict with the interest of Portuguese settlers
in the exploitation of indigenous work, which almost led to the extinction of
those peoples and to permanent concessions, even in the case of settled Indi-
ans, in face of the power of the material interests at stake.
Accordingly, the laws of the Portuguese crown on the Indigenous Peoples of
Brazil neither intended to maintain those peoples in their current cultural and
civilizational state, nor did they value cultural diversity as a heritage to be pre-
served; neither yet did they subscribe to the application of the thesis of natural
slavery to those peoples, nor the thesis sustaining that the land they occupied
was res nullius or res derelictae.

34 B. Perrone-Moisés, ‘Terras Indígenas na Legislação Colonial’, 95 Revista da Faculdade de

Direito da usp (2000) p. 114.

international journal on minority and group rights 25 (2018) 183-209

The Rights of Indigenous Peoples of Brazil 197

Placing the different theses in their own time and circumstance, we can
read paragraph 40 of the Royal Charter of 1 April 1680 – the foundation of the
concept of Indigenato put forward by João Mendes Júnior and widely inter-
preted by the Brazilian constitutional doctrine – as the most capable of bring-
ing light to Article 231 of the Constitution of 1988, since it is considered to be
still in effect:

And so that the so-called Gentiles who descended as well as those cur-
rently there better remain in the Villages, it is fitting that they are the
masters of their estates as they are in the Sertão without making it pos-
sible to take those estates from them or to do them any harm. And the
Governor, with the advice of the so-called Religious people, will assign
proper places to be farmed and cultivated by those who come from the
Sertão, and they may not be moved from the referred places against their
will nor made to pay any rent or tribute for the referred land because its
concession always reserves third party losses and much more is included;
and I want losses and the right of Indians, the original and natural mas-
ters of the land, to be reserved.35

The content of paragraph 40 of the Charter of 1 April 1680 was explicitly con-
firmed by King José I and by the Marquês de Pombal (1755), requiring, in the
name of the Absolute State, that

[i]n the land allotted to private persons through grant [sesmaria] third
party losses are always reserved, and much more is included and I want to
have included the losses and rights of the Indians, its original and natural
masters.36

Likewise, Pombal’s Directory (1757) requires that the Indians of the villages
created by colonial authorities, who “are the first and natural masters of the
land, …in accordance with the Royal Orders” are guaranteed farming land.37
The content of these royal laws refers us back to the natural law and the jus
gentium as it was put forward by the masters of the University of Salamanca,
Coimbra and Évora throughout the 16th and 17th centuries, as we will see below.

35 Alvará de 1 de Abril de 1680, in Naud, supra note 26, p. 257.

36 Lei de 6 de Junho de 1755, in Naud, supra note 26.
37 Directório, que se deve observar nas povoações dos índios do Pará e Maranhão, 1757, in
Naud, supra note 26, p. 264.

international journal on minority and group rights 25 (2018) 183-209

198 Calafate

4 The Issue of the Original Rights over the Land in the Academic
Iberian Tradition of the Renaissance: On the Division and
Appropriation of Goods

As we have been discussing, the original rights of the Indian over the land they
traditionally inhabited, as stated in the Constitution of the Federal Republic
of Brazil of 1988, do not refer to a title of ownership but to a specific type of
possession connected to specific daily practices. In any case, when this mat-
ter is read in the logic of the legal tradition of the 17th and 18th centuries we
are hereby referring to a context which does not validate plurality of different
Cosmo-visions. What was here at stake was the idea of domain, based on the
question of whether or not the Indians were the legitimate lords or owners
over their goods, or whether they had true power of these. This leads us to the
question of authority and of the origins of property ownership, the sole right
of one person over any one good regardless of other relevant factors (such as
possession) which define the relation between people and goods, establishing
prerogatives inherent in the broader concept of dominion as power and capa-
bility as not being represented nor dependent on another, that any person has
over any one thing.
As a matter of fact, the Thomist thesis of natural domain prevailed among
the Iberian Scholastics of the Renaissance. According to the book of Genesis,
God granted all men domain over the whole of creation; therefore, all things
were originally common. However, common possession required modera-
tion and concord by definition, which were unable to prevail after sin, since
each man started to give more importance to what was his own rather than
to what was common to all. In this context, the continuity of common pos-
session would hardly prevent disagreement and war with the exception of the
religious communities.
In his Relectio de Dominio – read at the University of Salamanca in 1535 –
Domingo de Soto taught that the communion of goods, although founded on
natural law, was not a positive natural precept and it should be negatively tak-
en, that is, natural law neither stipulated that goods, despite having been given
by God to mankind in common, should forever remain in that condition nor
established their division according to this founding principle.
Following Saint Thomas, Soto explained that, in the beginning, since all
men were equal, dominion of the orb was granted to all in an equal manner,
and no one held in himself the legitimacy or the power to take possession of a
part to the detriment of others.

international journal on minority and group rights 25 (2018) 183-209

The Rights of Indigenous Peoples of Brazil 199

In this sense, this division and appropriation would have to be carried out
on the basis of “the consent of all”,38 in contrast to Locke’s later view, that is to
say: either everyone consented that Adam distributed the land amongst them,
since he did not have such power in himself because his domestic power did
not extend to that, or a general agreement between men could have taken
place,

to settle disputes, one would receive one part and the other another, each
one handing over the common power which he had over this estate, in
order that the other would in turn hand back the common power he had
over another estate, as can be read in the Genesis regarding Abraham and
Lot: “Let there be no quarrel between us … Is not the whole land before
you? … If you go left, I will go right”.39

Regarding this issue and in agreement with Soto and Saint Thomas, Francisco
de Vitoria explains that saying that all things are common by natural law “is the
same as saying that the division of things was not established by natural law”.
This is in the sense that it was not natural law which established the distribu-
tion of goods. However, this does not mean that such division is contrary to
it or that it derogates natural law since, in accordance with the conditions of
the time and practice, human reason revealed the convenience of the division.
In fact, if men were the owners of all things by natural law, it would follow
that they could do with them what would seem most convenient according to
human reason. In his Commentary to the Secunda Secundae (Sum. Theol.) of
Saint Thomas, Francisco de Vitoria states that:

If men were the owners of all things, they would be able do whatever
they wanted: to divide them and take possession of them. Therefore,
since men had power over all things by natural law and were true own-
ers, it follows that, by natural law, they would be able to divide them and
do with them what they wanted. But the division of things was done by
human law.40

38 D. de Soto, Relectio De Dominio, 1535, 21, 15, in J. Brufau Prats (ed.), Relecciones y Opusculos,
Volume i (Editorial San Esteban, Salamanca, 1995) p. 141.
39 Ibid., 21, 20–23.
40 F. de Vitória, ‘Comentários a la Secunda Secundae de Santo Tomás de Aquino’, in J. Cordero
Pando (ed.), Relectio de Potestate Civili, Estúdios sobre su Filosofia Política, Antologia de

international journal on minority and group rights 25 (2018) 183-209

200 Calafate

Moving one step further, it is important to mention that this pact or agree-
ment according to which men decided to carry out the division of goods did
not entail its objective and formal factuality, but could only require “a virtual
interpretative consensus”:

Therefore, some started to farm a part of the land while the rest anoth-
er, and from the use of those things the result was that the former were
pleased with the land they occupied while the latter with theirs, so that
one did not occupy the land of his neighbor. This occurs not in virtue of a
formal, but of a virtual agreement.41

Once this division is made by interpretative virtual agreement, only three

legitimate modes or titles are left by virtue of which someone could acquire
dominium of things: either through the will of the first owner or through the
authority of the prince or the emperor which, according to the law of nations,
included the just war declared by an authority endowed with jurisdiction. To
these titles of dominion transfer we could also add a third with a temporary
nature: extreme necessity, which determined that, in cases of extreme neces-
sity (extreme misery accompanied by danger to life), things would return
to common dominium until such cause disappeared, a thesis that in and by
itself precluded, avant la lettre, the possessive individualism of more recent
times.
Applying this thesis to the case in hand, Vitoria explains that Christians
could not take possession of American land in the possession of the first own-
er since, once the division of things was made, they were true owners, which
entailed that if they did not explicitly show the will to give the land to the
Christians without fear, malice or ignorance, then the Spanish could not take
possession of it. The virtual interpretative contract extended to the whole of
men and the peoples of the orb and, therefore, also to the Gentiles of America.
Neither could they take possession of the land by invoking the second title:
the prince’s authority, since Vitoria argued that, when the Spanish royal ar-
mada arrived on Indian land it carried no authority to take possession of their
land and to overthrow their princes or, as the Portuguese Father António Vieira
would say in 1694 at the Jesuit College of São Paulo, “in matters of sovereignty
and freedom the feathered crown is worth as much as the golden one and the

Otros Textos Políticos, Volume 15, Corpus Hispanorum de Pace, Segunda Serie (csic, Ma-
drid, 2008) p. 159.
41 Ibid., p. 155.

international journal on minority and group rights 25 (2018) 183-209

The Rights of Indigenous Peoples of Brazil 201

bow as much as the scepter”,42 given that neither the Emperor nor the Pope
were masters of the world, neither spiritual nor temporal.
In fact, the jurist-theologians of the Iberian universities were concerned
with founding the domain of jurisdiction or civil power in nature and natural
law, originated in God as the author of the social nature of man. In their view,
he who provides the essence of any one thing also provides what follows from
it and since man was not capable of realizing his social nature without a power
ruling society, it followed that God was the first cause of the power constitutive
of human communities freely formed by men in obedience to their nature.
In fact, all entities endowed with an end should possess the necessary facul-
ties to attain it. As the community was an entity whose own end was the com-
mon good, it should therefore have naturally possessed the power or faculties
to realize this common good.
This was the basis of a democratic view on the origin of power, grounded
on all of society that could not or would not decide to transfer or grant it by
consensus to a senate or prince. See the extraordinary lesson taught on the
subject by Martín de Azpilcueta at the University of Coimbra in 1548 before its
magna assembly:

When the peoples lack the light and the support of an emperor, they
should be their own light, and who has no guide or leader is his own lead-
er and guide. And thus, although some people have no leader or king by
human providence, these have been granted by the natura naturans, that
is, God, the power to lead, rule and enlighten themselves … and if some
men were found to be associated in a community, these would have im-
mediately been granted from God Himself the power to rule themselves
and to make things without which they could not live in society … since
the imperial law cannot suppress natural providence. The fact that many
people seem to lack jurisdiction altogether is not contrary to this. In fact,
they do not lack jurisdiction altogether, but rather its use.43

The consequence of this was taught by Luis de Molina at the University of

Évora in the decade of 1570:

42 Father A. Vieira, ‘Voto sobre as dúvidas dos moradores de São Paulo’ (1694), in José Edu-
ardo Franco and Pedro Calafate (ed.), Obra Completa do Padre António Vieira, Tome iv,
Volume iii (Círculo de Leitores, Lisboa, 2014) p. 276.
43 M. de Azpilcueta, ‘Relectio c. Novit de iudiciis, Coimbra, 1548’, in Pedro Calafate (ed.),
­Escola Ibérica da Paz – escritos sobre o poder, a justiça e a escravatura, Volume ii (Alme-
dina, Coimbra, 2015) p. 47.

international journal on minority and group rights 25 (2018) 183-209

202 Calafate

There is nothing against infidel nations having true kings exerting their
dominion upon them, as well as the other legitimate powers. The same
should be said about the lawfulness of the dominion of infidels over the
things they possess as their own as private persons. Therefore, both the
dominions of jurisdiction and of property are common to the whole of
human kind and its foundation is neither faith nor charity.44

For that reason, Iberian scholars argued that only on the basis of legitimate
titles, particularly the just war, could the indigenous sovereignties of America
or the right of their peoples to dominion of property be annulled since, as ex-
plained by Francisco Suárez in his lessons at the University of Coimbra in the
early 17th century: “The power of Christian princes, in itself, is not of greater or
different nature than the power of Pagan princes; therefore, in itself, it has no
other subject or other end”.45
And for that reason as well, the universality of rights was established, since
they are natural and not limited to the European continent. Hence, in his De
Legibus Suárez taught that “[a]ll that has been said until now on the natural
power men have to dictate civil laws is universally valid for all Pagans and
infidels”.46
This meant that the whole world should be considered “a single Republic” to
which we should acknowledge powers to promulgate just laws for all peoples,
as were the laws of the law of nations. In Vitoria’s view, the law of nations was
promulgated by “the authority of the whole orb”, an authority also virtually
established founded on the Ciceronian recta ratio.
Even though the relation between natural law and the law of nations for
these authors is not univocal, we might say, on the basis of the case of Vitoria
and paraphrasing Jesús Cordero Pando, that the law of nations “is the positive,
historically variable expression acquired by the explanation of the demands of
natural law between the different peoples and cultures; but always preserving
its deep bond grounded on that precedence of a natural law equal to all”.47 On
the other hand, we can witness in the paradigmatic case of Francisco Suárez
the simultaneous and progressive introduction of the will and natural reason
as the sources of the law of nations. In De Legibus, Suárez taught that the pre-
cepts of the law of nations were “more” dependent on “free will and moral

44 L. de Molina, De justitia et iure, Cuenca, 1691, Tome i, Book ii, disp. xxvii.
45 F. Suárez, De Legibus, Coimbra, 1612, Book iii, v, 1.
46 Ibid., xii, 9.
47 Cordero Pando, supra note 40, p. 479.

international journal on minority and group rights 25 (2018) 183-209

The Rights of Indigenous Peoples of Brazil 203

convenience and less on necessity”,48 however we may not classify him as a

voluntarist insofar as he does not postulate a power which is absolutely free in
relation to the will, having it instead depend on prior movement of knowledge.
Anyway, and to summarize, it was established that men of all races were
created free and naturally equal; that political power had its immediate origin
in the natural communities of men, giving it a democratic foundation; that
the right to dominion of jurisdiction and property did not depend on religion
or degree of civilizational development; that there was no natural, but only
legal slavery; that the sought after Christian empire was a juridical expectation,
dependent on a free pact among peoples, without fear or deceit or ignorance
because imperial laws could not contradict natural dispositions, since even if
a people had no guide or leader it would be its own leader and guide; that the
emperor was not the lord of the world and the empire was not based on di-
vine right; that the Pope was the lord of neither the spiritual nor the temporal
world, having no authority to “judge those outside” (1 Cor. 5:12–13), his right be-
ing only, in this case, to peacefully preach the Gospel (jus praedicandi) among
the non-baptized.
The relation between law and ethics, as well as peace and justice was rein-
forced and the supremacy of the reason of mankind and solidarity was estab-
lished over the raison d’état and power.
The thesis on the universal authority of the orb was advocated because the
law of nations was not strictly between states; the dignity of the human be-
ing was conceived as the foundation of the international community; it was
argued that the right to citizenship depended on belonging to a community of
equals and that the right of dominion of the property of land did not depend
on the effectiveness of work but on its actual and original occupation, on the
basis of consensus or agreement between men.
Justice above the will of princes – the universal guaranty of the universal
reciprocity of rights – was established, asserting itself as a matter of conscience
and not consent, and the importance of Universal Principles was emphasized,
as well as the attention to the rights and duties of all inter se, among which was
the right to travel to foreign land (jus communicationis).
By stipulating that peace was not just the answer to the irrationality of war,
a rationalization of war as the answer to aggression or injury was attempted,
thus creating the space for both conscientious objection and the right of resis-
tance, emphasizing that neither injury to God (idolatry) nor crimes against na-
ture, with the exception of attempts on life and physical integrity of ­innocents

48 F. Suárez, ‘De Legibus’, liv. ii, xvii, 9, in L. Pereña (ed.), Corpus Hispanorum de Pace,
­Volume xiv (csic, Madrid, 1973) p. 110.

international journal on minority and group rights 25 (2018) 183-209

204 Calafate

(crimes against mankind), were legitimate reasons to go to war, liable to be

stopped by the force of arms.
We are thus able to understand the teachings of Martín de Ledesma at Co-
imbra in 1560:

Pagans and Gentiles have true dominion over their lands as long as they
have not usurped them violently from Christians or other true masters,
and that dominion is as true as the one Christians have over their goods …
Therefore, Pagans and Gentiles cannot be deprived of their dominion on
the basis of faith, that is, in view of their becoming Christians because,
since they already had dominion over things and God does not deprive
them of that dominion, they cannot be deprived of it unless by their own
will or by human law. But Pagans do not lose dominion over their things
in any of these ways since they do not want to forego dominion over
those things by their own initiative and because they do not want to obey
Christian princes, since they have their true princes and never wished
to be subjected to Christian princes. And Christian princes cannot have
dominion over those Pagans unless they want to be subjected to them,
which they never wanted or have been. …Besides, if the Barbarians lost
dominion over things because they were not Christians, the division and
appropriation of things would be by Divine Right, which is false … There-
fore, the Barbarians cannot be deprived of dominion over their things
just because of faith.49

In this, as in many other moments of the Iberian university tradition the article
of the above mentioned royal Charter of 1 April 1680 is condensed: Indians
are the natural and original masters of the land they occupy, both in the vil-
lages created by the colonial administration as in the sertão and can only be at-
tracted to Christianity through preaching, if they accept it, that is, they cannot
be ‘rescued’ or ‘be brought down’ from the land they traditionally occupied,
but rather through persuasion, that is to say, “without taking a natural right to
freedom from those endowed by nature and who, by natural and positive law,
are truly free”.50
And if these were the universal principles regarding the right of dominion
and property, they should prevail in the relationship between peoples, and not
the liberal criterion of the ‘industrious and rational work’. See the teachings of
Luis de Molina at the University of Évora from the 1570s:

49 Martín de Ledesma, Secunda Quartae, Coimbra, 1560, fol. 223r-v.

50 Alvará de 1 Abril 1680, in Naud, supra note 26, p. 257.

international journal on minority and group rights 25 (2018) 183-209

The Rights of Indigenous Peoples of Brazil 205

If it is a just cause of war to subject a nation on the grounds of its being

barbarian or uncivilized and more fit to be ruled by others and educated
in the good customs than to rule itself is not even debatable. Even if there
is no lack of authors arguing that this is a sufficient reason to subject all
Brazilians and other inhabitants of the New World, as well as the Africans,
reducing them to slavery, thus entailing that, being slaves, all their goods
would be transferred to their masters, depriving them of their land. As
mentioned, in no way do we have a sufficient cause to legitimize slavery.51

Melchor Cano, master in Salamanca, would be no less emphatic:

No thesis would be more fit to sow disagreement between the peoples of

the orb than the one arguing that the most wise of private persons may
oppress those inferior in wisdom, since anyone may think of himself as
wiser than others. From this it is possible to conclude that, if any legiti-
mate superior was deemed as less wise, anyone could get rid of him in
light of natural law, which would be evidently unjust … From this it can
also be concluded that … if a republic is wiser and politically better orga-
nized than another, that does not give it any authority over it, especially
because no republic is required to follow the optimum. It is sufficient that
it chooses the good.52

However, we are listing general principles of natural law and law of nations
and not the law in its global context and its criteria of enforcement.
In fact, as shown by Beatriz Perrone-Moisés,53 the laws of the Portuguese
crown were directed at village Indians, Indians attracted to villages formed by
the colonial authorities in view of their civilizational integration and evange-
lization. Once the Indians were put into villages, the land they previously oc-
cupied was considered derelict, and incorporated into the assets of the crown.
Consequently, despite the principle of natural freedom and natural dominion,
indigenous peoples ended up actually losing the vast lands they occupied be-
fore the arrival of the Portuguese.54

51 Molina, supra note 44, Book iii, disp. cv.

52 Melchor Cano (1509–1560), De dominio indorum, ms of the Vatican Library, Vat. Lat. 4648,
ff. 28–40. Transcript of the Latin manuscript in Corpus Hispanorum de Pace, Volume ix,
Luciano Pereña (ed.), p. 561.
53 Perrone-Moisés, supra note 34, p. 110.
54 Ibid., p. 111.

international journal on minority and group rights 25 (2018) 183-209

206 Calafate

5 Conclusion

The history of the expropriation of the Indians in Brazil is a long unfinished

chapter of a violent process. Strategies of legal confusion were locally imple-
mented, and the crown’s own interests were often usurped by the beneficiaries
of sesmarias in a process of “legalization of the illegal”55 and in a constant im-
balance between the crown’s interests, the settlers’ interests, and the church’s
interests.
However, the systematic violation of legal norms regarding the freedom and
rights of the Indians throughout the colonial period had continuity in the vio-
lation of the legal and constitutional dispositions in the postcolonial period,
both before and after the Federal Constitution of 1988.
In the period of the Empire, after independence, huge portions of indig-
enous land were transferred to private property, through illegal registration,
invoking non-registration of property by the Indians, despite the Decree of
1318, dated 30 January 1854, which exempted them from title to property. On
the side of some religious institutions the situation was no longer meritorious.
Suffice it to say, as Hartmut-Emanuel Kayser reveals, that the Indian Protection
Service, created in the 20th century in Brazil, “accused Dominican and Salesian
missions of appropriating vast areas of indigenous land”.56
With regard to the constant legislative fluctuation between the Indian’s
slavery and liberty, the Law of 27 October 1831 established the interdiction
of Indian slavery, but it was far from respected for several decades; as is well
known, in blatant disrespect for the law and with the passive connivance of
the authorities, the sale of Indian slaves was still a common practice in Rio de
Janeiro in 1850. Likewise, in the vast and distant Amazonian regions, Indian
slavery was an omnipresent illegal practice throughout the 19th century.57
Throughout the 19th and 20th centuries the aggressive expansion of white
settlers’ plantations led to the forced displacement of many indigenous com-
munities, often by resorting to extermination and genocide undertaken by
farmers and large landowners; so much so that between 1840 and 1920 around
four million European settlers came to Brazil, many of them under the offi-
cial promise of land, which greatly increased the pressure of access to land. As

55 Cf. J. Holston, Legalizando o Ilegal: propriedade e usurpação no Brasil, <www.anpocs.or.br/

portal/publicações/rbcs_00_21/rbcs21_07>, visited on 30 June 2016.
56 H. Kayser, Os Direitos dos Povos Indígenas do Brasil. Desenvolvimento Histórico e Estágio
Atual (Sérgio António Fabri, Porto Alegre, 2010) p. 152.
57 M.C. da Cunha, Política Indígena no Século xix, História dos Índios no Brasil (Companhia
das Letras, São Paulo, 1998) p. 146.

international journal on minority and group rights 25 (2018) 183-209

The Rights of Indigenous Peoples of Brazil 207

H. Kayser says, from then on “what happened in praxis was registration with-
out proof. The result of that manipulation was the frequent illegal property
registration by third parties in indigenous territories”.58
This situation persisted throughout the 20th century aggravated by steam
navigation and the expansion of train tracks which cut inland into the vast Bra-
zilian territory, with consequences that can be foreseen, advancing the coloni-
zation frontier with disrespect for the ancestral territories of the indigenous
peoples. And during the military dictatorship (1964–1985) the construction of
the Trans-Amazonian Highway ended up having similar effects.
In addition, the triumph of the positivist philosophy in Brazil, converted
into official Republic ideology, submitting the development of the whole of
humanity to a universal linearity, placed the indigenous cultures and commu-
nities on the outside of ‘legitimate’ history or in a state of ‘social infancy’.
The result was the official policy of integration of the ‘savages’ in the domi-
nating society, a ‘civilization by force’, leading to ethnocide, not in the sense of
a physical death but of the spiritual death of a people, or the pure and simple
extermination by genocide. Thus, the Federal Constitution of 1934 established
in its Article 5 the Union’s competence to legislate on the “incorporation of
forestry” in the “national communion” which, as we have seen in this study,
was only stopped by the 1988 Constitution.
According to a study by the Brazilian ethnologist Darcy Ribeiro, between
1900 and 1957, 87 indigenous peoples were extinguished in the country, repre-
senting 50 per cent of the ethnic groups that were still isolated, extinguished
after the first contact, and 67 per cent of the ethnic groups in permanent con-
tact with the national society.59
This extinction was caused not only by violent conflict for the possession
and property of land but also by an old foe, whose destructive power had be-
gun in the early days of the arrival of the Portuguese to Brazil: throughout the
20th century the diseases brought by the whites (flu and the measles) contin-
ued to result in the death of thousands of Indians, even whole communities
which until then had never been contacted. Tragically, history repeated itself
400 years later.
Even after the successive Brazilian federal constitutions which, as the one
from 1934, guaranteed to ‘foresters’ the permanent possession of the land oc-
cupied by them, the animalistic voracity for profit and usurpation continued
its course.

58 Kayser, supra note 56, p. 151.

59 D. Ribeiro, Os Índios e a Civilização (Vozes, Petrópolis, 1993) p. 137.

international journal on minority and group rights 25 (2018) 183-209

208 Calafate

In our time, the verdict of the Raposa Serra do Sol case (2009–2013), in the
Supreme Federal Court, for the benefit of the native indigenous communi-
ties, regarding Article 231 of the Federal Constitution (1988), motivated a very
strong reaction from large landowners that continues its course, with active
complicity of the Federal Congress. A main feature of this reaction was the
as yet unsuccessful attempt to assign the legitimacy of demarcation of indig-
enous lands from the executive power to the legislative power.
One of the most recent examples of this long and ancient combat with the
violation of the Federal Constitution, is the construction of the Belo Monte
Dam, embodying a true ethnocide of the indigenous peoples of the Amazon.60
This dam is being built despite the extremely unfavourable opinion of En-
vironmental Impact Studies, which show that across more than five million
acres, nine indigenous communities with different worldviews will see their
way of life and cultures eradicated. This dam involves the detour of the river
Xingu through artificial canals, allowing a vast area of over 100km to dry (the so
called “Great Bend of the Xingu river”), with the added risk of desertification of
an extensive surrounding area.
With the apparent intention of respecting Article 231 of the Constitution
insofar as the rights of the indigenous peoples are concerned, a “plan for the
mitigation of the impact” was drawn up and its application entrusted to the
dam developers themselves. They used it to seduce the Indians into the con-
sumption of superfluous goods, creating new needs that led to alcoholism and
diabetes, an incommensurable production of garbage, the replacement of tra-
ditional indigenous houses with houses made of wood with zinc roofs, and the
luring of Indians towards cities, where many had never been. In other words, it
led to the transformation of the Indians into paupers, instilling in them needs
they had neither had or known.
The so-called “plan for the mitigation of the impact” was thus distorted to
become a means of superseding the obstacle represented by the indigenous
communities and their original rights. For that reason, the District Attorney of
the Federal Prosecution of Altamira, Thais Santi, was very clear when she cried
out for justice and said that “with homogenizing actions instead of the foreseen
mitigation plan, Belo Monte strikes down Article 231 of the Constitution”,61 be-
cause the Indians are treated as mere obstacles to overcome. In addition, Belo
Monte opens the whole region to the exploitation of the Amazonian natural
resources on an industrial scale, surely culminating in a holocaustic result.

60 Cf. T. Santi, Belo Monte: Anatomia de um etnocídio, <cidadaniambiental.blogspot.pt/

2015/05/belo-monte-anatomia-de-um-etnocidio.html>, visited on 12 April 2017.
61 Ibid.

international journal on minority and group rights 25 (2018) 183-209

The Rights of Indigenous Peoples of Brazil 209

This saga shows no signs of slowing down but has, even so, entered into
a new phase. This new era of international tribunals of human rights shows
signs of the establishment of a new forum to solve these centuries-long con-
flicts. In fact, not only was the case of the Belo Monte Dam presented to the
Inter-American Commission on Human Rights, but the case of the Xucuru
People v. Brazil (November 2017) is still ongoing at the Inter-American Court
of Human Rights, where Brazil is sitting on the defendants’ bench. At issue is
the demand of compliance of Article 231 of the Federal Constitution of 1988
in terms of the demarcation, attribution of titles and eviction from the 27,000
acres of xucuru Indigenous Lands in the Brazilian State of Pernambuco. Also
at issue is the right to reparation for the physical, psychological and moral vio-
lence suffered by this original people of Brazil.
As Federal Prosecutor of Altamira, Thais Santi, had said:

today in Brazil there is clearly a majority representation of groups con-

nected to sectors contrary to the indigenous peoples. It is necessary to
interpret the Constitution of 1988 as a countermajority pact, the goal of
which is precisely to avoid that eventual majorities suppress the funda-
mental rights ensured to minorities.62

62 Ibid.

international journal on minority and group rights 25 (2018) 183-209