Anthropological Experts and the Legal System: Brazil and Canada

Anthropologists are commonly called into the legal system in a number of countries to present expert testimony regarding Indigenous issues and people. In this article we examine how this process occurs in our two countries (Miller in Canada and Menezes in Brazil) and two different legal traditions. We first briefly describe the ways in which the Brazilian civil law tradition provides openings for testimony and then the Canadian common-law practice (Miller also provides testimony in the United States). We draw on our own work to illustrate the role of anthropological experts, the manner in which Indigenous experiences are transformed into legal and anthropological questions throughout the legal process, and, most significantly, the ways in which we attempt to communicate to the court something of the reality of Indigenous experience. But note: by necessity, our accounts emphasize the difficult cases, and we do not suggest that counterexamples cannot be found. Our effort is not to lay the blame for difficulties faced in the legal system on judges or to simply critique the legal systems of our countries. We know that judges and legal officials face many complex and vexing questions in their work. We recognize that we are describing manifestations of a larger social problem. And we acknowledge the history of our own discipline, anthropology, in the colonization and dispossession of Indigenous people.

We want to tell the backstory of what happens in Indigenous litigation and to present our own partial ethnography of the legal system. Australian anthropologist Paul Burke noted the importance of the “process by which knowledge, views, arguments, and opinions that originate in . . . anthropology are rendered into legal categories in the very different social field of law.”¹ Similarly, Arthur Ray, a Canadian historian and expert witness, writes that to educate the court about Aboriginal history he “had to work through at least two intermediaries—the lawyers who retained me and those who opposed them.”² We understand that the legal system and the courts themselves are not the domain of anthropology and that our disciplinary concepts and practices must, appropriately, be arranged to fit within the legal system. There are problems in giving testimony that arise with this approach, however.

In particular, we focus on our common problem: the various difficulties in showing to the court the bias, stereotyping, and racism Indigenous peoples commonly face in quite different societies and legal orders and the consequences that flow from these attitudes. Examples are drawn from both criminal and civil litigation, as well as tribunals and commissions. We present our strategies to gain legal notice for these problems. We conclude that these issues in presenting anthropological understandings are strikingly similar in Brazilian civil law and Canadian common law. In fact, they are pancontinental features of settler colonial societies. There are significant differences as well, but communicative strategies can be shared across borders.

Brazilian indians and the criminal law

Brazilian law guarantees a series of differentiated rights for Indigenous peoples inhabiting Brazil. These rights are related to many aspects such as specific educational and health services and the demarcation of the land that the Indians traditionally occupy. This legislation also provides differential treatment to Indigenous peoples charged and convicted in criminal cases, indicating, for example, that their sentences should be reduced and should be fulfilled close to their communities. However, this legal benefit has been systematically denied to the Natives through the presumption, by a large portion of jurists, that these Indians would be “integrated” or “acculturated,” which, in jurists’ view, would suffice for suspension of those rights. It turns out that most law enforcement officers have labeled the Indigenous as integrated/acculturated based on very superficial elements, such as possession of identity documents, some knowledge of the Portuguese language, the use of clothing, and even mestizo physical appearance. While some of this simplistic interpretation is supported by the Natives’ own idiosyncrasies, it is also supported by Law 6001 of 1973, known as “the Indian Statute.” This is the law that provides the main legal definition of who the Indians are in the eyes of Brazilian...