The Multiple Roles of Socio-Anthropological Expert Evidence in Indigenous Land Claims: The Xukuru People Case

ABSTRACT

In 2018, the Inter-American Court delivered the first – and so far, only – judgment against Brazil on Indigenous land rights. This leading decision upheld the state’s failure to comply with human rights obligations due to the non-removal of non-Indigenous individuals from the territory of the Xukuru people. Such an issue, namely, insecure land tenure affects Indigenous peoples worldwide. The decision’s outcome consolidated a critical trend in international law concerning the concept of Indigenous lands: a place where Indigenous peoples have their residence and holistically develop their life, which states must actively protect, according to Article 21 of the American Convention read in conjunction with Article 1.1 and 2 thereof. By analyzing secondary sources (inter alia, ethnographies and court documents), this paper addresses the role of social (or cultural) anthropology regarding expert evidence in the Xukuru land claims. It articulates the Brazilian and Inter-American legal framework on expert evidence and Indigenous land rights with the literature on ‘anthropological expertise’ and ‘cultural expertise’, which includes the branches of forensic social anthropology and expert social anthropology. This analysis underscores the evolving challenges concerning expert evidence in legal-administrative procedures on the national and international levels. It argues that cultural anthropologists acting as experts on these levels need different sets of skills, which should be developed through special training. Thus, this paper amplifies the interdisciplinary dialogue between law and social anthropology on the topical issue of human rights adjudication.

KEYWORDS:

• Indigenous land rights
• Brazil
• Xukuru people case
• expert evidence
• Inter-American System of Human Rights

Acknowledgement

Special thanks to the Max Planck Society for making this research freely available to the public, thereby contributing to open science.

Disclosure Statement

No potential conflict of interest was reported by the author(s).

Notes

1 Information available at: https://osprimeirosbrasileiros.mn.ufrj.br/en/contemporary-world/xucuru/ (last accessed: 12/12/2023). For a subjective account by the Xukuru people on Chief Xikão’s life, see the documentary: https://www.youtube.com/watch?v=-tbVB6zCl6w (last accessed: 12/12/2023).

2 The literature is not uniform with respect to the orthography of the name Xukuru, which can be found under several names, such as ‘Xacuru’, ‘Xucuru’ or ‘Sucuru’. This paper opted for writing it with ‘k’, following the criteria of self-identification and mainstream scholarship.

3 The Brazilian Superior Court of Justice has recently ruled that the judgment against Chief Marcos Xukuru contained several errors and should therefore be considered null and void. The Court explained, for instance, that the witnesses’ testimonies should not have been considered as evidence because the people called as witnesses in the legal proceedings had a vested interest in the criminal conviction of Chief Marcos Xukuru.

4 Free translation by the author from the original in Portuguese to English.

5 Information found on the Brazilian researchers’ database: http://lattes.cnpq.br/3919969920731350 (last accessed 12/12/2023).

6 This paper uses the concepts of Indigenous lands and Indigenous territories as interchangeable, despite the differences under Brazilian law. For an elucidation of the differences, see: (Souza Filho 2013, 20–21; Supreme Federal Court 2009, 233–234).

7 Currently, the indirect consequences of this judgment are still unfolding. The Brazilian Congress is considering a bill that would establish the 1988 timeframe for Indigenous lands.

8 Unfortunately, the national legal framework uses an outdated terminology for the land’s right holders, naming them as ‘Indians’, which is a word regarded as incorrect in the field of social sciences, mainly due to its derogatory connotation. The most adequate term according to the current international law standards is ‘Indigenous peoples’ (International Labour Organization 1989; United Nations 2007), which is also used by many Indigenous individuals to self-identify. Administrative and legislative powers have recently started to use this wording through simple steps, such as Law 14.402 of July 8, 2022, which changed the name of the commemorative date from ‘day of the Indian’ to ‘Indigenous peoples’ day’, or the presidential government of Lula da Silva (Brazil 2023) that created the Ministry of Indigenous Peoples. ‘Indigenous’ comes from the Latin indigena and means in colloquial language someone belonging naturally to a region (Monteiro de Matos 2021, 10:1).

9 The relationship between the concept of sovereignty and Indigenous peoples in Brazil has changed over time. The current Constitution contrasts with previous colonial legislation that recognized Indigenous peoples as sovereign nations (Cunha 2018, 367). Notably, selected Indigenous peoples self-identify as Indigenous nations.

10 There is an absence of consensus in legal scholarship on the definition of collective or group rights. However, the mainstream definition (Wenzel 2011, para. 2) places the difference between individual and group rights in the category of ‘right holder’. Likewise, to be classified as a collective right, the relevant rule should entitle a group (rather than individuals) with a specific right. In light of this understanding, this paper classifies the rights of Indigenous peoples in Brazil, including land rights, as collective ones, which is clearly established by Articles 231 and 232 of the Brazilian Constitution.

11 Article 231 of the Brazilian Constitution reads as it follows:

Indigenous people shall have their social organization, customs, languages, creeds and traditions recognized, as well as their original rights to the lands they traditionally occupy. The Union is responsible for demarcating such lands, protecting and ensuring respect for all of their property. Paragraph 1. Lands traditionally occupied by Indians are those on which they live on a permanent basis, those used for their productive activities, those indispensable to the preservation of the environmental resources necessary for their wellbeing and for their physical and cultural reproduction, according to their habits, customs and traditions. Paragraph 2. The lands traditionally occupied by Indigenous are intended for their permanent possession and they shall have the exclusive usufruct of the riches of the land, the rivers and the lakes existing therein. Paragraph 3. Water resources, including energetic potentials, may only be exploited, and mineral riches in Indigenous land may only be prospected and mined with the authorization of the National Congress, after hearing the communities involved, and the participation in the results of such mining shall be ensured to them, as set forth by law. Paragraph 4. The lands referred to in this Article are inalienable and nontransferable and the rights thereto are not subject to statute of limitation. Paragraph 5. The removal of Indigenous groups from their lands is forbidden, except ad referendum of the National Congress, in case of a catastrophe or an epidemic which represents a risk to their population, or in the interest of the sovereignty of the country, after decision by the National Congress, it being guaranteed that, under any circumstances, the return shall be immediate as soon as the risk ceases. Paragraph 6. Acts with a view to occupation, domain and possession of the lands referred to in this Article or to the exploitation of the natural riches of the land, rivers and lakes existing therein, are null and void, producing no legal effects, except in case of relevant public interest of the Union, as provided by a supplementary law and such nullity shall not create a right to indemnity or to sue the Union, except in what concerns improvements derived from occupation in good faith, in the manner prescribed by law [ … ]. (Brazil 1988)

12 Recent practices in delimitation and demarcation procedures contrast with the passive role of Indigenous peoples that was legally established. For example, in 2014, the Munduruku people autonomously began to demarcate their lands for various reasons, including to expedite the legal-administrative procedure. Such an act exemplifies a phenomenon that is crucial to understanding the Brazilian land rights regime: multinormativity. In addition, it demonstrates the multiple uses of state law (i.e. the legal categories of delimitation and demarcation) by different actors, in different ways, thus, creating a situation of interlegality. For a comprehensive analysis in this regard, see the master’s thesis of the public prosecutor Luís Boaventura (Boaventura 2023).

13 Free translation by the author from the original in Portuguese to English.

14 Fialho wrote her master thesis in Anthropology based on the Xukuru case while working at the Department of Identification and Delimitation of the NIF (Fialho 1992, 1). Her master thesis, which is an ethnographic account of the Xukuru land’s demarcation procedure, is one of the main sources for this section. The author did not have access to the anthropological expert report for the identification and delimitation of the Xukuru land because it is not available to the general public.

15 Free translation by the author from the original in Portuguese to English.

16 On the effects of the 1850 Law on Lands on Indigenous territories in Brazil, see Cunha (2018, 369–375).

17 Free translation by the author from the original in Portuguese to English.

18 Free translation by the author from the original in Portuguese to English.

19 For other anthropological works on Indigenous peoples in Brazil’s Northeast region, see Oliveira (2011b; Oliveira 2004).

20 Free translation by the author from the original in Portuguese to English.

21 Information found on the Brazilian researchers’ database: http://lattes.cnpq.br/3919969920731350 (last accessed: 12/12/2023).

22 The video recording of Teófilo’s expert witnessing is available on: https://vimeo.com/showcase/4489982 (last accessed: 12/12/23).

23 For instance, see: IACtHR, Mayagna (Sumo) Awas Tingni Community v Nicaragua, Judgment, August 31st, 2001, Series C No. 79, pp. 23-26.

24 Article 2, No. 23, IACtHR’s rules of procedure (2009):

The term ‘expert witness’ refers to the person whom, possessing particular scientific, artistic, technical, or practical knowledge or experience, informs the Court about issues in connection in as much as they relate to his or her special area of knowledge or experience.

As proof expertise, experts must provide the IACtHR with their curriculum vitae.

25 Similarly, see Carreira (2005, 242).

26 Free translation by the author from the original in Portuguese to English.

27 Free translation by the author from the original in Portuguese to English.

Additional information

Funding

The author thanks the Brazilian Federal Agency for Support and Evaluation of Graduate Education (known by its Portuguese acronym CAPES, Coordenação de Aperfeiçoamento de Pessoal de Nível Superior) for its generous support of this research (grant number 88887.692557/2022-00).