Case of the Xukuru Indigenous People v. Brazil: A procedural trajectory before the Inter-American Court of Human Rights./Caso Povo Ind
| Autor | de Souza Silva, Rodrigo Deodato |
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History and general characteristics of the Xukuru Indigenous People of Ororubá
The Xukuru Indigenous People of Ororubá is composed of 2,354 families, who live in 2,265 houses. There are 7,726 indigenous individuals distributed in 24 villages within a territory of 27,555 hectares. Historical references to their presence in the territory go back to the 16th century, according to Vânia R. Fialho (1) and Kelly Oliveira (2). Their territory is located in the Serra do Ororubá, in the municipality of Pesqueira, state of Pernambuco, in the northeast region of Brazil. In addition, another 4,228 indigenous individuals who also belong to the Xukuru people of Ororubá live outside the indigenous land, in the urban perimeter of the city of Pesqueira. In this way, the issues that will be analyzed in this article directly impact a total population of 11,954 indigenous individuals and their culture, practices, and customs that have resisted over the centuries with the endurance that is peculiar to them.
They present a model of social organization with unique characteristics. Over the years, one can notice that such a structure was also constituted based on the confrontation of the demands and problems of the Xukurus. Thus, they have a series of shared decision-making bodies--all within their specificities--which has a traditional hierarchy based on the figures of the Cacique and the Pajé (a Shaman) as bridges between their people and the outside world, whether in political representation before the State or before the deities of the kingdom of encantados (enchanted beings), from where the belief in the perpetuation of ancestry in other levels of reality finds shelter in the heart of the Xukuru population.
Still in the historical context, it is relevant to point out the participation of the Xukuru people during the Paraguayan War (1864 - 1870). According to reports of the indigenous themselves, this participation took place even through forced enlistment. There are several reports that point to their participation in the conflict, including through forced enlistment (3). This fact is important for the Xukuru People, due to the so-called "30 of Ororubá" group--warriors who enlisted in the Brazilian army and returned from the War with the promise of receiving permanent possession of their traditional territory through an act of will by the then Brazilian Empire (4). However, in 1879, under the Land Law (Law no. 601, of 1850), which aimed to regulate the administration of vacant lands of the Brazilian Empire, the then "Xukuru Settlement" ended up being officially extinguished (5). Such a measure obviously had a major negative impact on the Xukuru People and the keeping of their territory, which was completely invaded by farmers, trespassers, and members of the local elite (6). This was one of the most critical moments in the history of the indigenous people of Serra de Ororubá--the Xukuru Diaspora (7).
Only 65 years later, at the beginning of the second half of the 20th century, the Brazilian State took another look at the Xukuru People, with the production of "(...) the first official contemporary report on the Xukuru, dated 1944, made by the sertanista (or Amazon explorer) and employee of the Indian Protection Service (SPI), Cícero Cavalcanti (...)" (8). This survey is emblematic because it reports how the Xukuru People of Ororubá have been constantly persecuted throughout history in regard to their culture, their spiritual and organizational identity, due to the dispute over traditional territory. The author of the report denounces that "older caboclos" gathered to perform acts and rituals, and that they were denounced to the police as practitioners of witchcraft by white farmers. He also claims that spiritual leaders of the indigenous people were taken to the police station, and the Xukuru individuals were strictly prohibited from practicing their rituals and using their traditional medicine. But even in this scenario, the report on the Xukuru People of Yoruba states that "some Xukuru customs still live in their hearts" (9).
With the 1988 Constitution in force, the Xukuru began a mobilization for the reclaiming of their lands, putting pressure on authorities to guarantee their rights. With all the processes that resulted in the 1988 Magna Carta, in which the indigenous peoples had prominent participation--especially Cacique Xicão Xukuru--the Brazilian indigenous peoples managed to include in the final text of the constitutional document the recognition of "their social organization, customs, languages, beliefs and traditions, and the original rights to the lands they have traditionally occupied" (art. 231, caput); in addition to the right "to use their mother tongue and their own learning processes" in regular basic education (art. 210, [section] 2), and the recognition of indigenous people as "legitimate parties to file a lawsuit in defense of their rights and interests" (art. 232). However, the constitutional text did not become an automatically applicable standard for Brazilian indigenous peoples. The struggle for traditional territory would enter a new phase.
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The period of the retaking of territory and the aggravation of the conflict
Until the Federal Constitution of 1988, indigenous peoples, according to Brazilian regulations, were considered wards of the State and did not have the capacity to file a lawsuit for their rights.
With a special chapter on guarantees, a new era of rights for Brazilian indigenous peoples was inaugurated, at least formally. In addition, article 67 of the Transitional Constitutional Provisions Act (ADCT) established a five-year deadline for the demarcation of all indigenous lands in the country.
This is how the Xukuru People began to demand the demarcation of their ancestral territory in 1989, initiating the process of demarcating the Xukuru land.
However, with the delay in getting answers about this new phase of the enforceability flow regarding the indigenous land and realizing that the land was being completely controlled by invaders and landowners, the Xukuru People began to move forward with the repossession of the indigenous territory (10).
Two years later, the demarcation process once again was paralyzed, and the Xukuru people took back the Caípe Farm, which was in the possession of landowner Milton Rego Didier. Mr. Didier, therefore, filed a Repossession Action related to the farm's 300 hectares. This is an emblematic action because the court handed down judgment in favor of the non-indigenous occupants in several instances. This is clearly a factor of legal uncertainty regarding the right to full and exclusive usufruct of the land by the Xukuru People.
Still in 1992, the Ministry of Justice, through Ordinance (Portaria) no. 259, awarded permanent possession of the 26-thousand-hectare land to the Xukuru indigenous people. According to the Xukuru people, this was the trigger for the murder of José Bispo, the pajé's son. The event took place within the indigenous land and aimed to shake the spiritual pillar of the Xukuru people. In response, new areas were reclaimed. With the deadline established in article 67, ADCT, for the completion of land demarcations in the country, the Xukuru People continued with the reclaiming of land. In January 1995, the work of physical demarcation of the Xukuru territory began, totaling just over 27,555 hectares. As in the case of the pajé's son, months after the stage of physical demarcation, FUNAI's lawyer Geraldo Rolim, an active defender of the Xukuru people, was murdered.
In 1997, 90% of the Xukuru territory was still occupied by non-indigenous third parties. Among the invaders, there were farmers and influential politicians in the region. In other words, the State did not act effectively to remove these invaders or guarantee the protection of the ancestral land. That year, three more land reclaimings were made and Cacique Xicão went on to denounce the recurring death threats he had been receiving; the Chief forwarded such facts to the authorities, but they failed to act on the threats. On May 20 of the following year, Chief Xicão Xukuru was assassinated.
With Xicão's death, who was the Xukuru's main leader and an emblematic figure in the struggle for the rights of indigenous peoples at a national level, a sociopolitical restructuring of the indigenous community was established.
It was only 1 year and 7 months after the loss of the Great Cacique Xicão that the indigenous community, under the guidance of the enchanted beings of nature--following their religious beliefs--found a new chief. On January 6, 2000--already receiving several threats--Marquinhos Xukuru (who is Xicão's son) assumed the position of cacique. Twenty days later, the indigenous people established new repossessions of territory.
It was only on April 30, 2001, that the demarcation of the Xukuru ancestral territory was homologated. A major sequence of land reclaiming took place. In response, indigenous leader Chico Quelé was murdered. But the repossessions did not stop and amid a battle of administrative appeals within the scope of the demarcation process, the Federal Police carried out, in early 2002, the exhumation of chief Xicão's remains. With utmost cruelty, the exhumation of the body--which in the Xukuru culture is planted, not buried--in front of children and other members of the people, without minimum technical conditions for performing the forensic analysis, was another hard blow to the Xukuru people.
Led by chief Marquinhos Xukuru, the Xukuru people carried out, by the end of 2002, 21 more reclaimings of territory that were in the hands of invaders and ranchers.
On February 7, 2003, following a pattern that was repeated throughout the struggle of the Xukuru people...
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