Excerpted From: Karen Engle and Lucas Lixinski, Quilombo Land Rights, Brazilian Constitutionalism, and Racial Capitalism, 54 Vanderbilt Journal of Transnational Law 831 (October, 2021) (178 Footnotes) (Full Document)


EngleLixinskiOn 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. This order, Decree 4.887, issued by President Luiz Inácio (Lula) da Silva in 2003, implemented Article 68 of the Transitional Constitutional Provisions Act (ADCT 68) of the 1988 Brazilian Constitution. ADCT 68 recoizes the land rights of quilombos, or communities of quilombolas, who are mostly descendants of formerly enslaved Africans, many of whom had escaped slavery. 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.”

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. While not all quilombos seek title, in 2020, quilombola communities were awaiting the outcome of over 1,800 applications.

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) 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 quilombo 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.

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. 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.

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” 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. 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, and white European people(s) have together created a homogenous Brazilian racial and cultural identity. In this view, those who identify as 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.

[. . .]

Notwithstanding its doctrinal sophistication and transformative aims, the Brazilian constitutional court's reasoning ultimately assumes many of the logics that Brazilian Black activists, including quilombolas, have long sought to undo. This Article, in its analysis of the various opinions in the court's decision to uphold Decree 4.887, has consulted archival materials from the constitutional and legislative drafting processes with the hope of using the past to begin to imagine different futures unbounded by current constitutional understandings of resistance, expropriation, and heritage. In this way, the Article seeks to make productive use of the limitations, inconsistencies, and fissures in the various opinions to highlight the urgency of acknowledging, critiquing, and undoing racial capitalism, which can be normalized and entrenched by well-meaning but ultimately incomplete engagements with racial justice. Taking transformation seriously will require a more direct engagement with historical and ongoing expropriation of both the labor and land of quilombolas, as well as their resistance to that expropriation.

Minerva House Drysdale Regents Chair in Law, University of Texas School of Law; Founder and Co-Director, Bernard and Audre Rapoport Center for Human Rights and Justice.

Professor, Faculty of Law & Justice, UNSW Sydney. .