Transitional Injustice For Indigenous Peoples From Brazil

Demetrio, André; Kozicki, Katya

doi:10.1590/2179-8966/2017/28186

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Artigos • Rev. Direito e Práx. 10 (1) • Mar 2019 • https://doi.org/10.1590/2179-8966/2017/28186 copy

Transitional Injustice For Indigenous Peoples From Brazil

Authorship SCIMAGO INSTITUTIONS RANKINGS

Abstract

The study thematizes reparations for violations of indigenous peoples’ human rights that occurred during the Brazilian dictatorship from 1946 to 1988, a period of time covered by the Amnesty Law (Law number 6.683). The study is intended to answer the following question: before transitional justice, what reparation mechanisms existed for the indigenous peoples in Brazil? In this context of transitional (in)justice and reparation for this minority, questions arise as to what measures should be taken by the Brazilian state, private companies, and/or military agents. The objective of this research is to draw adequate parameters of reparation to the indigenous peoples in Brazil, through the right to truth, memory, justice, and territory. Results indicate that reparatory mechanisms for indigenous peoples are fragile, because many legal limitations have been created to make it impossible to promote an indigenous transitional justice system and seek the right to memory, justice, truth, reparation, and territory.

Keywords:
Transitional justice; Indigenous peoples; Dictatorship

Lawsuit:	Justice Rapporteur or Judge:	Date:	Note:
ACO 323-7 MG (STF)	Francisco Rezek	09/08/1994	Historical decision granting the territorial right to the Krenak ethnic group.
RE 219.983-3 SP (STF)	Marco Aurelio	12/9/1998	It establishes the timeframe for the possession of indigenous lands, refuting the indigenous theory proposed by João Mendes.
Initial Petition 3.388- 4 - Roraima (STF)	Carlos Britto	07/01/2010	Case of Terra Indígena Raposa do Sol. It established as timeframe for the natives the promulgation of the Federal Constitution of 1988; that is, the Indians were supposed to be in the territory on October 5, 1988.
ACP - Case No 0000243- 88.2014.4.01.3200 (1st Federal Court of TRF of the 1st Region (AM)	Judge Maria Pinto Fraxe	01/15/2014 (in progress)	Case of the Tenharim and Jihaui peoples, victims of the Trans-Amazonian Highway. Preliminary injunction granted in part. The judge accepted the request for measures to protect the sacred places and for doctors in the health center.
RMS 29087 DF (STF)	Ricardo Lewandowski	9/16/2014	Appeal for the demarcation of land for the Guarani Kaiowá ethnic group, in the state of MS. The decision invokes the timeframe of the occupation, which is the promulgation of the Constitution of 1988.
Request for political amnesty	Ministry of Justice / Amnesty Commission	9/19/2014	Case that granted political amnesty to the indigenous Aikewara people, residents of Aldeia Sororró, in the Indigenous Land Aikewara.
ARE 803,462-AgR / MS	Teori Zavascki	02/12/2015	Decision on the Indigenous Land “Limão Verde.” As in previous decisions, “the date of the promulgation of the Constitution, on October 5, 1988, was established as the timeframe for the occupation of land by the Indians, for the purpose of its recognition as indigenous land” (STF, 2015).
Request for political amnesty		03/24/2015 (in progress)	Request for the grant of political amnesty to the Krenak people due to violations of their human rights during the military dictatorship.
ACP - Case No. 644839520154013800 (JF MG)	Judge Anna Cristina Rocha Gonçalves	12/14/2015 (in progress)	Case involving the Krenak people and human rights violations during the military dictatorship. First lawsuit involving indigenous people and J.T. that has as defendant a natural person, the military man Manoel dos Santos Pinheiro [emphasis added]. Preliminary injunction partially granted on December 2016: - to promote free consultation of the Krenak ethnic group; a) to translate the Federal Constitution into the native language of this people; b) to give to this town all the governmental documents regarding them; c) National publication on violations of human rights of indigenous peoples during the military dictatorship and, in particular, related to the Krenak Reformatory.

Universidade do Estado do Rio de Janeiro Rua São Francisco Xavier, 524 - 7º Andar, CEP: 20.550-013, (21) 2334-0507 - Rio de Janeiro - RJ - Brazil
E-mail: direitoepraxis@gmail.com

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[1] About the authors

André Demetrio Doctoral Student in Law at University Carlos III of Madrid. Master in Law, Pontifical Catholic University of Paraná. E-mail: demetrio@outlook.com