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Human Rights Quarterly 24.2 (2002) 487-512
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Indigenous Rights in Democratic Brazil
Maria Guadalupe Moog Rodrigues
In 1831, nine years after Brazil's independence from Portugal, the government enacted legislation addressing indigenous peoples' rights in the new country. The progressive set of laws revoked decrees by the Portuguese Crown that had authorized "total war" against indigenous peoples and servitude for war prisoners. The Brazilian law, instead, determined that indigenous peoples' material and personal rights be placed under the protection of the "Justice of Orphans." 1 Clearly, the legislator operated under the two prevailing assumptions about indigenous peoples at the time: First, that Indians were incapable of autonomous interaction with Brazilian "civilized" society and thus needed the guidance and protection of the state (as did orphan children); second, that such guidance and protection should ultimately lead to the eventual assimilation of indigenous peoples into the Brazilian society.
Such a paternalist and assimilationist approach remained dominant within Brazil's legislation and state institutions for most of the twentieth century. When, in 1916, the Brazilian Civil Code was approved, it included "Indians" among those considered "relatively incapable" to exercise their rights (together with minors and the mentally ill). 2 In their interactions with [End Page 487] the Brazilian society, indigenous peoples were to be assisted by the state, in a regime of "tutelage." 3 The 1973 Indigenous Peoples' Statute (Estatuto do Índio), issued during the most repressive period of the military regime that governed the country between 1964 and 1984, further extended the scope of the state's tutelage over indigenous peoples. 4 The state was in charge of managing indigenous peoples' properties and income, overseeing any dealings between indigenous peoples and members of the dominant society, and even determining whether an Indian could travel abroad. 5
Brazil's transition to democratic normality in the mid-1980s and the promulgation of the 1988 Constitution promised a new era in the relationship between the Brazilian state, Brazilian society, and Brazilian indigenous peoples. To what extent have these promises been fulfilled? For instance, I argue that the return to democracy has had no real impact on indigenous rights and that the "assimilationist" culture still prevails among Brazilian institutions. 6 The predominant answer, however, among most Brazilian indigenous rights' activists and domestic and foreign analysts is that democracy's promises have been partially fulfilled, i.e., despite concrete advances, indigenous peoples' rights continue to be constrained by economic interests, development goals, and nationalist ideologies. 7 In this article I analyze how the Brazilian indigenous movement has met these constraints, and argue that in the past fifteen years, its capacity to demand and monitor the implementation of indigenous peoples' citizenship rights has been affected by three main factors. First, as stressed by Alison Brysk, Margaret Keck, and Kathryn Sikkink, among others, the Brazilian indigenous movement has benefitted from the political and material resources provided [End Page 488] by its links with transnational advocacy coalitions concerned with environmental and human rights issues. 8 Second, indigenous peoples have acquired a growing understanding of Brazilian politics, and have been willing to operate within its institutional framework. Third, indigenous peoples have benefitted from the emergence and consolidation of a network of domestic advocacy organizations committed to indigenous rights. These organizations have been instrumental in providing legal and political assistance to indigenous peoples while educating the dominant society about their demands and expectations.
My claims regarding the indigenous peoples' increased political capacity, however, must be taken with a "grain of salt." The political space that indigenous peoples have carved in the Brazilian political and legal systems is not secure for at least three reasons. First, Brazil's democracy is often characterized as elite-dominated. 9 As such, it continues to impose enormous constraints on the participation of non-elite groups. Second, international attention and support have been elusive and are driven by factors outside the control of Brazilian indigenous peoples. As a result, international mobilization constitutes, at best, a circumstantial advantage, rather than a dependable resource for indigenous peoples. Finally, occasional ideological and political cleavages among advocacy organizations have weakened...