Abstract

Excerpted From: Edward Shore, A Dream Deferred: the Emergence and Fitful Enforcement of the Quilombo Law in Brazil, 101 Texas Law Review 707 (February 2023) (263 Footnotes) (Full Document)

 

EdwardShoreAurico Dias is a farmer and activist from S o Pedro, Brazil, one of eighty-eight quilombos that occupy S o Paulo's Atlantic Forest. Quilombos are communities comprised of quilombolas, who are the descendants of formerly enslaved Africans, many of whom had escaped slavery. During the 1830s, Dias's ancestors escaped the gold mines and rice plantations that dotted the emerald landscape of the Ribeira Valley (Vale do Ribeira) in southeastern S o Paulo state. They established a village along the shores of the Ribeira de Iguape River and survived due to their knowledge of tropical ecosystems, mastery of subsistence farming, and formation of trade and kinship networks with neighboring quilombos and society at large. After the abolition of slavery in Brazil in 1888, Dias's ancestors remained on the land, but they lacked formal title deeds. Consequently, they confronted threats of eviction from banana farmers, cattle ranchers, land speculators, and the State of S o Paulo.

For the past thirty-four years, Aurico Dias and the people of S o Pedro have pressed for land rights under Article 68, a Brazilian constitutional provision that guarantees legal recognition and collective land titles to “quilombo descendants” (remanescentes de quilombos). Of an estimated 6,000 quilombos in Brazil today, fewer than 250 have received collective title for any part of their land. Only two dozen quilombos have obtained title for the full territory they claim. S o Pedro is one of more than 1,800 communities awaiting resolution of the federal titling process. Like their ancestors, the residents of S o Pedro face threats to their lands and livelihoods, this time from the intrusion of hydroelectric projects and mining companies. “Brazil waited almost 500 years to recognize quilombos,” Dias told me, “[n]ow it feels like we will have to wait another 500 years for our government to enforce its own laws.”

This Note explores the historical emergence and repercussions of Article 68, the first constitutional provision in Brazil that accorded race-based rights to Afro-descendants, who represent more than half of the country's 215 million people. Drawing from archival research, oral histories, and secondary sources, I argue that Article 68 and its fitful enforcement reflect longstanding battles over land, citizenship, and racial entitlement in Brazilian society that began under slavery and acquired new forms during the twentieth and twenty-first centuries.

This analysis proceeds in two parts. Part I traces the introduction of Article 68 at the 1987-1988 Constituent Assembly, explaining how Black peasants--who had historically advanced civil law claims of adverse possession to defend ancestral territories--came to reframe their historical grievances in a language of “constitutional rights” and “reparations” during a period of democratic transition from military rule in Brazil. This Part revisits the historical experiences of quilombolas before and after emancipation to contextualize their descendants' struggles for land, civil rights, and racial equality today. In Brazil, the tardy proclamation of emancipation in 1888 failed to substantively improve socioeconomic opportunities for many freed Blacks, including quilombolas. Although Brazil did not establish a formal regime of legal segregation during the post-emancipation period, as in the United States, Afro-Brazilians confronted de facto barriers to civil rights and inclusion in Brazilian society. Meanwhile, throughout the twentieth century, Afro-Brazilians confronted the pernicious “myth of racial democracy”--the notion that widespread biological and cultural intermixture between Africans, Europeans, and Indigenous peoples during the colonization of Brazil had diluted racial distinctions and engendered a unitary, mesti‡o Brazilian race. Proponents of the myth of racial democracy--from the U.S.-trained sociologist Gilberto Freyre to the military regime that ruled Brazil from 1964 to 1985-- cited high degrees of racial mixture and the historical absence of Jim Crow segregation in Brazil to argue that Brazilians, unlike Americans, did not discriminate based on race. Conveniently, such dogmatism managed to squelch demands for reparations and territorial rights for Afro-Brazilians and Indigenous peoples.

Part I revisits how a broad coalition of Afro-Brazilian activists and intellectuals brandished the historical example and symbolism of the quilombo, and above all, the famed Quilombo dos Palmares (Palmares) (which existed from approximately 1600 until its suppression in 1694), to debunk the myth of racial democracy in Brazilian society. Antiracist activism flourished in Brazil during the 1970s and 1980s, amid the rise of international Black power, Third World decolonization, and Brazil's burgeoning pro-democracy movement. Efforts to unmask the myth of racial democracy culminated with the convocation of the 1987-1988 National Constituent Assembly, where Afro-Brazilian activists and intellectuals pressed for the establishment of constitutional rights for the descendants of quilombos.

Part II addresses the intertwined legal, political, and ideological battles that have clouded Article 68's enforcement for more than thirty years. In 1995, seven years after the Constituent Assembly ratified Article 68, not a single quilombo in Brazil had obtained legal recognition and collective title to land. Until 2003, the Brazilian government refused to expropriate private lands to grant collective title to eligible communities. Although the causes of Article 68's uneven enforcement are manifold, this Note highlights three legal issues that have plagued the realization of quilombola rights for thirty-four years. First, is Article 68 self-executing, or does it require implementing legislation? Second, who qualifies as a remanescente de quilombo or quilombo descendant under the Brazilian Constitution? Third, does expropriation of private property to grant collective title to quilombola communities require the indemnification of third parties?

Part II revisits the contentious efforts of quilombola activists, legislators, judges, and presidents to resolve these lingering debates. For instance, in 2003, President Luiz In cio Lula da Silva promulgated an executive decree that defined the category of quilombo descendants broadly, established an ambitious seventeen-step federal program for the titling of quilombola lands, and ordered indemnification for expropriation of private lands. Yet opponents of Article 68 swiftly filed a complaint challenging the decree's constitutionality that took fifteen years for Brazil's Federal Supreme Court to adjudicate. Although the Court ultimately upheld the decree in 2018, the challengers succeeded in grinding the federal titling of quilombola lands to a halt. Former President Jair Bolsonaro (2018-2022), elected mere months after the decision, vowed never to title “another centimeter of land” to quilombolas and Indigenous communities. Part II contends that the longstanding denial of the existence of racism in Brazilian society, as well as the requirement of indemnification for the expropriation of private property to grant collective title to quilombola communities, jointly conspire to deprive Afro-Brazilians of their hard-won constitutional rights.

[. . .]

This Note has examined the unlikely emergence and uneven enforcement of Article 68, the first constitutional provision in Brazil to accord specific rights to Afro-descendants. It has argued that ratification of Article 68 responded to the longstanding struggles of the Black peasantry over land, resources, and autonomy that originated under slavery and took new forms during the twentieth and twenty-first centuries.

Part I traced the introduction of Article 68 at the 1987-1988 Constituent Assembly, detailing how rural Afro-Brazilians--who had historically advanced civil law claims of adverse possession to obtain land rights--came to reframe their historical grievances in a language of “constitutional rights” and “reparations” amid re-democratization and the hundredth anniversary of emancipation.

Part II explored the innumerable, interconnected legal, political, and ideological battles that have clouded Article 68's enforcement for more than thirty years. As noted, of the more than 6,000 quilombo communities in Brazil today, fewer than 250 possess title to at least some part of their ancestral territories. Of those 250, less than two dozen possess full title.

While the causes of Brazil's failure to fulfill its constitutional obligations to quilombolas are myriad, this Note analyzed three legal issues that have plagued the enforcement of Article 68 for more than thirty years. First, is Article 68 self-executing, or does it require implementing legislation? Second, who qualifies as a quilombo descendant under the Brazilian Constitution? Third, does expropriation of private property to grant collective title to quilombola communities require the indemnification of interested third parties?

In addressing these questions, this Note argued that entrenched social ideologies of “racial democracy” and “Black authenticity” in Brazil--not merely the political headwinds of regulatory inertia--suppress the realization of Afro-Brazilians' constitutional rights. However, just as the conservative agribusiness party, DEM, filed a direct action of unconstitutionality to obstruct the implementation of President Lula's Decree 4.887, so have quilombolas deployed an array of legal strategies and constitutional devices to challenge territorial dispossession and marginalization in Brazilian society.

In September 2020, CONAQ, the national network of quilombola activists, filed a complaint known as an “allegation of disobedience of a fundamental precept” (argui‡ o de descumprimento de direito fundamental, ADPF), arguing that the Bolsonaro Administration's disastrous response to the COVID-19 pandemic had violated the fundamental rights of quilombola communities under Articles 3 and 5 of the Brazilian Constitution. The complaint sought to compel the Bolsonaro Administration to adopt specific policies to combat the spread of the pandemic, which has disproportionately stricken Indigenous and quilombola communities in Brazil. “What the quilombola population demands is basic care. We do not ask for anything that others do not have. We have rights that are being ignored,” said Vercline Dias, a quilombola attorney from Kalunga and special advisor to CONAQ. The STF accepted CONAQ's complaint, and Minister Edson Fachin ordered the Bolsonaro government to suspend federal evictions of quilombolas without title and to ensure nutrition and food security, affirmative access to hospital beds and testing, and the distribution of masks and personal protective equipment for quilombos.

In January 2022, the Inter-American Court of Human Rights (IACHR) agreed for the first time to adjudicate a case concerning Brazil's failure to enforce Article 68. The case concerns Brazil's Alcƒntara Peninsula, where the expansion of the Alcƒntara Space Launch Center (used to launch commercial satellites) threatens to displace thousands of quilombola farmers and fishermen from their ancestral lands along the Atlantic Coast. In the Merits Report, the Inter-American Commission on Human Rights observed the Brazilian government's failure to comply with its domestic and international obligations to issue title deeds to 152 communities in Alcƒntara that petitioned the federal government for legal recognition and collective deeds pursuant to Decree 4.887 almost twenty years ago. The IACHR also found that Brazil had violated ILO 169 by failing to seek prior consultation and consent from quilombola communities regarding the development of its national space program. The outcome of the Alcƒntara case will be decided in 2023, with vast repercussions for quilombola communities awaiting titling across the country. For more than 1.1 million quilombolas, the struggle for land, dignity, and autonomy in Brazil continues.

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Ph.D., The University of Texas at Austin, 2018; Associate Editor, Volume 101, Texas Law Review; J.D. Candidate, Class of 2023, The University of Texas School of Law.