Quilombo Land Rights, Brazilian Constitutionalism, and Racial Capitalism.

AuthorEngle, Karen

TABLE OF CONTENTS I. INTRODUCTION 832 II. FROM THE CONSTITUTION TO THE CHALLENGED DECREE 836 III. THE COURT'S DECISION 840 A. Unfolding of the Court's Rejection of the Challenge 840 B. Recognition and Redistribution 843 IV. TRANSFORMAT[GAMMA]VE RACIAL JUSTICE 847 A. Resistance 847 B. Expropriation 853 C Heritage 861 V. CONCLUSION 870 I. INTRODUCTION

On February 8, 2018, the Brazilian constitutional court, or Federal Supreme Court, overwhelmingly upheld the constitutionality of an executive order detailing the process for collectively titling the lands occupied by certain Afro-descendant communities. (1) This order, Decree 4.887, issued by President Luiz Inacio (Lula) da Silva in 2003, implemented Article 68 of the Transitional Constitutional Provisions Act (ADCT 68) of the 1988 Brazilian Constitution. (2) ADCT 68 recognizes the land rights of quilombos, or communities of quilombolas, who are mostly descendants of formerly enslaved Africans, many of whom had escaped slavery. (3) Specifically, ADCT 68 reads: "Final ownership shall be recognized for the remaining members of the quilombo communities who are occupying their lands and the state shall grant them the respective title deeds." (4)

Notwithstanding this constitutional provision and the decree, which in principle continued in effect while being challenged, the government has long failed to engage in significant land titling for communities that claim quilombo status. Indeed, of an estimated six thousand quilombos in Brazil, fewer than 250 have received collective title for any part of their land. Only two dozen of those have obtained title for the full territory they claim. (5) While not all quilombos seek title, in 2020, quilombola communities were awaiting the outcome of over 1,800 applications. (6)

When Decree 4.887 was issued, quilombolas and their allies hoped it would speed up what already was a slow and obstacle-filled scheme for titling. Shortly after the decree's enactment, though, one of Brazil's right-wing parties--the Partido de Frente Liberal (PFL, or Liberal Front Party, which is the successor of the party of the prior military dictatorship and which changed its name in 2007 to Democratas, or DEM) (7)--filed a complaint challenging the decree's constitutionality on several grounds. It argued that the decree: (1) violated separation of powers because it was enacted by the executive, rather than the legislative, branch; (2) violated the constitutional right to property by creating an unconstitutional mode of expropriation of private land for quilombo communities; (3) improperly broadened the category of quil[upsilon]mbo beyond that recognized in the Constitution by allowing for self-identification as a primary indicator of quilombo status; and (4) violated the due process rights of private property owners with competing title by subordinating their rights to those of quilombos. (8)

It took fifteen years for the majority of the ministers (justices) of the court to reject the challenge. The minister who was initially assigned the role of relator only issued his (oral) opinion after eight years. (9) He accepted the DEM's challenge, ruling that the decree was unconstitutional. Over the subsequent six years, ministers sequentially issued their opinions, ultimately upholding the decree. Once the decision was finalized, it took another year for the court to publish all its decisions, which it did in February 2019. After publication, organizations that had filed amicus briefs on behalf of quilombolas sought clarification of an important aspect of the decision that would affect which quilombos would be legally recognized for the purposes of title. In December 2019, the court rejected the request, and the judgment became final. (10)

Had the court struck down the decree, it could have meant the end of any titling of quilombo lands for a significant period. The result therefore brought a sigh of relief from quilombolas and their allies. At the same time, the court arguably simply left in place the status quo. Particularly given the current political climate--with President Jair Bolsonaro having promised that "not one centimeter of land will be demarcated for Indigenous reserves or quilombolas" (11)--few believe that titling is likely to increase any time soon.

Perhaps for this reason, few have written in detail about the constitutional court's decision. (12) Yet, the case and the various opinions of the ministers are ripe for analysis, particularly for the light they shed on significant and ongoing struggles over rights regarding race, property, and heritage. The ministers' attempted mediations of the tensions among these rights also provide insights into the ongoing impact of racial capitalism, including on rights adjudication, in and beyond Brazil.

Specifically regarding Brazil, the enduring myth of racial democracy underlies the DEM's challenge. Assertions of racial democracy deny the existence of racism in Brazil, insisting instead that--partly due to miscegenation--Indigenous, Black, (13) and white European people(s) have together created a homogenous Brazilian racial and cultural identity. (14) In this view, those who identify as quilombolas would have no greater claim to land than anyone else, especially those to whom it might already be titled. In its rejection of the DEM's challenge, the court largely rejected the racial democracy myth, if implicitly. Most notably, the opinion--written by the first minister to vote to uphold the decree--borrows heavily from US political theorist Nancy Fraser to justify quilombo land title as both recognition and redistribution.

This Article, while supportive of much of the decision, contends that it nevertheless falls short of the transformative potential that the use of Fraser's work evokes. Any transformative vision would require a different understanding of three concepts that circulate through the court's decision: resistance, expropriation, and heritage. In short, resistance should be understood as historical and ongoing, as well as promoting an alternative political economy not only for quilombolas but for the country (if not the world) more generally. Expropriation should be centered on the original and ongoing expropriation of labor and property of enslaved and formerly enslaved Africans and their descendants. Finally, heritage should focus on the economic, as well as the cultural, contributions to the national patrimony of formerly enslaved Africans and their descendants.

To make this argument, the Article proceeds as follows. Part II describes Decree 4.887 in the context of its historical background. Part III provides an overall description of the decision, with a focus on its discussion of recognition and redistribution. Part IV, which forms the bulk of the Article, critically analyzes the decision for its understandings of resistance, exploitation, and heritage. Relying on critiques of racial capitalism and the work of a number of Afro-Brazilian thinkers and activists, the Article aims to offer the contours of a more transformative justification for a robust titling scheme for a broad range of self-identified quilombo communities.

  1. FROM THE CONSTITUTION TO THE CHALLENGED DECREE

    In 1988, Brazil ratified its most recent constitution, which was the first in a wave of new democratic constitutions in Latin America. It did so one hundred years after Brazil became the last country in the Americas to abolish slavery. (15) Not only did the Constitution mark the transition from military rule to democracy, it was the first Brazilian constitution to prohibit racial discrimination and to recognize explicitly Indigenous and Afro-Brazilian rights to land and culture. (16) Given significant repression of the Brazilian Black movement (17) during the dictatorship, the Constitution's democratic and multicultural aims were not unrelated. (18)

    Partly building on the hundredth anniversary of the abolition of slavery, Brazilian Black activists, including some quilombolas, made a list of demands for the 1988 Constitution, which would be drafted by a specially elected Constituent Assembly. As discussed below, Black activists played both direct and indirect roles in the drafting process. Although they failed to achieve many of their aims for the document, they considered ADCT 68 to be a significant victory. Because ADCT 68 was transitory, however, it arguably required some type of governmental action to give it effect.

    Seven years after the Constitution's passage, in 1995, the newly emerging quilombola movement used the three hundredth anniversary of the execution of iconic quilombo leader Zumbi to push for increased titling under ADCT 68. After the National Congress failed to enact a proposed law that would set forth procedures for enforcing the provision, (19) quilombolas gathered in Brasilia in November 1995 for the first Encontro Nacional de Comunidades Negras Rurais Quilombolas (National Meeting of Quilombola Rural Black Communities). The meeting, on "Land, Production and Citizenship for Quilombolas," resulted in a declaration of demands by over four hundred quilombola communities and a rally of thirty thousand quilombolas to support those demands. Quilombo leaders sent the declaration to the Brazilian government, calling for the creation of public policies to carry out the promises made by ADCT 68. (20) Shortly thereafter, the Instituto Nacional de Colonizacao e Reforma Agraria (INCRA, or National Institute of Colonization and Agrarian Reform) published an administrative rule that laid out a legal framework for the titling of quilombo lands. (21) The rule only extended to quilombos situated on federal public lands, however. In 1999, the federal government transferred competence for titling to another agency, Fundacdo Cultural Palmares (FCP, or Palmares Foundation), which did grant collective title to some quilombos on privately titled land. (22)

    Titling became more difficult in 2001. President Fernando...

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