Updated to version published on Upside Down World
There’s a new law being debated in Brazil that threatens to undermine the rights and livelihoods of all Indigenous people in this South American nation.
Through twisting the letter and intent of International Labour Organisation convention 169, among other International agreements and National legislation, this law proposes that Brazil perform a state-wide intervention campaign to “save” indigenous children from bad treatment, neglect, abuse, exploitation, and infanticide.
While not as comprehensive as the 700 pages of legislation that embodies the “Australian Intervention” this Brazilian equivalent poses an even greater danger. If legislated, it would allow state forces to enter all indigenous communities on a regular basis; and it would force Indigenous people to police themselves by making them legally obligated to denounce any community member who is or who may be harming children.
If they do not denounce such a person, or if someone is suspected to know something but declined to report it, they would then be punished similarly to those who harmed or may have harmed a child. Punishment would range from fines and incarceration to the state taking away the children or just adopting them out—most likely, to non-indigenous people.
Under the Cloak of Benevolence
As is the case with the Australian Intervention—this law, and the intent of those behind it must be called into question. At first glance, there are five main reasons for this:
1 It quite clearly subverts indigenous rights;
2 It blatantly mischaracterizes the facts to justify the alleged need for an ‘intervention;’
3 It’s entirely discriminatory;
4 It grossly criminalizes all indigenous people;
5 It would have an immeasurable impact on their everyday lives.
It’s also important to note how this law would give the state of Brazil a prime, legal opportunity to incarcerate an entire indigenous community—leaving the land completely open for the state to do with it as they please. If this law becomes legislation, all it would take is for one indigenous person to say “everyone knew.” There wouldn’t even have to be any actual abuse - just the accusation would suffice.
As far as the intent goes, some months ago, Rita Laura Segato, from the Dept. of Anthropology, University of Brasilia, gave a presentation arguing against this the law - where she made it abundantly clear:
[A major concern is] with the gradual growth of punitive and criminalizing dimensions of State action in detriment of other kinds of action. Analysts criticize the fact that, while State agencies seem to concentrate more and more of their responsibilities upon punitive measures, they relegate sine-die other and more vital obligations. This law we came here to argue fits in precisely within this trend, endorsing the much lamented and condemned profile of the punitive State, a State that reduces its performance to the acts of force on and against the peoples whom it should protect and promote.
In his last book, The Enemy in Criminal Law2, the influential Argentine jurist Eugenio Raúl Zaffaroni, today Minister of the Supreme Court, examines the contradiction between the principles of Democracy and the punitive State. Zaffaroni unveils the hidden transcript of the punishing State throughout history and, especially, in the contemporary context. What emerges is that penal juridical discourse unavoidably introduces the idea of an enemy, which unfolds from the category of the hostis in ancient Roman law. While Democracy is supposedly for all, criminal legislation speaks always, in either more hidden or more explicit ways, of the figure of an inimical other, for then to enshrine itself in opposition to it. Though the State belongs to all, it projects (and, as a matter of fact, e-jects), by means of Criminal law discourse, the figure of an other people, to then, as part of the same maneuver, claim it as enemy.
In the case of the law we debate, the enemy in Criminal law is each indigenous people, the radical difference they represent and their right to make their own history. This law criminalizes the village and attempts at punishing the other just for being other. The authors do not stand the possibility of existence of a collectivity that is not a part of them.
As for mischaracterizing the facts, this is expressly done in the author’s primary focus, which is on the abolition of the traditional practice of infanticide. While it’s true that some indigenous cultures still practice this, it’s nowhere near as prevalent as the authors suggest. The simple fact is it’s a dying tradition that only a handful of Indigenous Cultures continue to exercise.
However, even if the practice of infanticide was as wide-spread as they claim, this type of legislation would simply not deter it from happening.
From a Judicial standpoint, Rita explains:
In the article “Truths and lies on the Criminal Justice System”3, sociologist Julita Lemgruber not only discloses the scarce effectiveness of the law among us, but also in the most policed countries of the world. Using quantitative research on Public Security in countries where such research is carried on with regularity, Julita states that in England and in the country of Wales, in the year of 1997
[…] of each one hundred crimes committed in that year, 45,2 were communicated to the police, 24 were registered, 5,5 were solved, 2,2 resulted in conviction and 0,3 ended in punishment by confinement. That is, in England, with a police force well more efficient than ours and a Judiciary much more agile, only 2.2% of offenses resulted in conviction of the criminals and only a trifle parcel of 0,3% of them received punishment by confinement.
Analogous study was carried in the United States in 1994, but considering only violent crimes (homicide, aggression, rape, robbery etc.), therefore crimes more important to investigate, solve and punish. However
[…] in a country with such rigorous criminal legislation as the U.S., the System of Criminal Justice acts as a true funnel, capturing parcels progressively smaller of crimes perpetrated in the society: for 3.900.000 cases of violence occurred in that year, only 143.000 (3.7%) resulted in conviction of authors, being 117.000 (3%) punished with confinement.
In the light of these data, the author characterizes as a “First Lie” the statement that the system of criminal justice can be considered an efficient inhibitor of crime.
Finally, this law would also have an immeasurable effect on the lives and cultures of all Indigenous People: the Ache, Amanyé, Awá, Enawene Nawe, Guaraní, Kayapo, Matsés, Quilombolo, Tupi, and Waorani to name a few.
In the least, it would instill a constant state of fear, mistrust and even paranoia; remove all forms of privacy, and fracture and impede regular life. In the extreme, it could become a catalyst for physical and cultural genocide.
Conclusion
Throughout history, some of the greatest atrocities were committed under the cloak of benevolence. I need only turn to America and say “Pox Blankets”, to Canada and say “Residential Schools”, to Australia and say “Protection Board.”
Sadly, such a list could go on forever because it’s a testament to the abhorrent nature of colonialism. The intervention proposed in this law fits in such a horrible accounting.
Overall, the dangers this intervention poses far exceed any of its real and imagined benefits. In the name of the children, it would act like a chainsaw - the sole purpose of which is it to rip apart Brazil’s social, cultural and genetic rainforest.
It therefore must not become legislation.
Further Reading
· Read the proposed law in Spanish (pdf) or English (pdf)
· Read the Presentation by Rita Laura Segato in Spanish (pdf) or English (pdf) note: the English version is roughly translated from Spanish, so can be a bit difficult to read.
You can find more articles by John Schertow at his blog, Intercontinental Cry
I read with interest your article ‘The Australian Intervention Moves to Brazil’. I won’t comment on the references to Brazil as this is the first I have heard of it and you are surely more knowledgable than I am in that country. However, as an Australian, I feel the need to comment on some of your accusations (seeing as you made the comparison).
First of all, the Australian legislation was the result of a comprehensive report titled ‘Little Children Are Sacred’. It detailed the horrendous living conditions in many indigenous communities in the Northern Territory. Inadequate housing, abysmal school attendances, health problems, substance / alcohol abuse, unemployment and child abuse (amongst other things) all highlighted how marginalised many indiginous citizens have become (or have remained). It was a shocking report. More pertinant to your article, however, is the fact that it was widely accepted as accurate by indigenous and non-indigenous Australians alike.
With that in mind, and because you linked the two interventions, I want to address the five reasons you gave as to why the law ‘must be called into question’. I will go through them one by one:
*It would have an immeasureable impact on their everyday lives’.
Well, lets hope so. Health, education, housing, family, opportunity are all things that us lucky ones have in our everyday lives. But perhaps you didn’t actually mean it in a perjorative sense.
‘It grossly criminalizes indigenous people’.
It is true that the Australian Government is sending more police (and the army) to help with the intervention and restor law and order. However, the scope of the legislation is such that it is a weak arguement to suggest that it is ‘gross’. Measures have been taken to prevent crime such as ensuring less alcohol is consumed and that indigenous people have more economic opportunities. Two rather large factors in crime I would think.
‘It blatently mischaractarizes the facts to justify the need for an intervention’.
As I mentioned earlier, the ‘Little Children are Sacred’ report was widely accepted by all Australians black and white.
‘It is entirely discrimatory’.
Well, virtually entirely. This is aimed at specific group of people within a specific demographic (it is only for the Northern Territory, the other states are unaffected). The former Howard government had to bypass the Racial Discrimination Act to get it through which does raise some issues. However, in reality it is a specific group of Australians who need this help. Also, there have been no legal challenges and barely a dissenting voice (and before you think it I want to add that many indigenous leaders have been given the opportunities speak out - not that they need to be ‘given’ an opportunity, they are prominent Australians). The conclusion - Australians on the whole see this as a necessary part of the road to an inclusive and reconciled country. Oh, and I say ‘virtually entirely’ because there are some ‘whitefellas’ who live in these communities and the legislation applies to them also.
‘It quite clearly subverts indigenous rights’.
You are probably referring to the suspension of Native Title which allowed communities to control who came in to their communities and what their land was to be used for (eg. mining). It is important to note that this has been suspended for five years, not taken away completely. This has probably been the most contentious part of the legislation. It is seen as necessary so that the people implementing the legislation on the ground can do so freely. However, some indigenous folk see it as a land grab. In response to these concerns, the new Labor government has indicated this is the most likely aspect of the intervention to be changed when it conducts the scheduled 6 month review soon. You, however, used the plural of right. I’m not sure what other rights have been subverted. Don’t people have the right to health services, decent housing, education, economic opportunities and to be cared for and not abused?
This is not to say that this action has been meekly accepted by the indigenous communities (nor the wider populace). There has been and still is an enormous amount of discussion but there is one constant in every point of view - something has to be done. There is also a bipartisan political approach to these issues. Also, just last month (on the first sitting day of the new government) a formal apology to the ‘Stolen Generations’ (in which the invidious ‘Protection Board’ was heavily involved) was offered. This was long overdue and both welcomed and accepted by the indigenous community.
Perhaps you already knew this, perhaps not. If you did then please don’t misrepresent my country (for better or worse) so egregiously again. If you did not, then perhaps you and your readers might find my little letter useful.
Regards
Matthew Costigan
Greetings Matthew. Thank you for taking the time to comment. When I wrote those five points I wasn’t actually referring to the Australian Intervention, but I think they are completely applicable. That’s not to say I disagree with your words, just that there’s more to the intentions and consequences of the intervention than what you’ve explained. I’ll follow your lead and go through each of those points as I see them applied to Australia
*It would have an immeasureable impact on their everyday lives’.
In In this point I am not so much referring to the social problems that have been caused, for instance, through years of being systematically impoverished and discriminated against (which is a primary reason there is widespread substance abuse). Rather, I am referring to every day activities—from the practice of ceremony to having relationships and conversations, to living a self-determining life that isn’t checked by a glaring and invasive military presence.
For instance, as you may be aware, one of the features of the intervention legislation banned any project dedicated to improving community life - with a provision added that any organization giving money to such efforts (community development) can have their assets seized.
Secondly, for more than twenty years Indigenous communities throughout AU have been crying out for help to resolve the damages caused to community life, particularly those caused as during the stolen generation. Their pleas were met with contempt by every level of government. And then this intervention comes into play and not only does the government avoid every one of the 97 recommendations made in the "little children are sacred report," but they also banned what few efforts communities and NGOs have independently organized.
Now, I’m sure you can agree that in order for any person or community to overcome any form of abuse, it first and foremost requires participation. It requires people taking steps to improve their lives and to address the causes of the problems they are facing. The intervention is disabling people from doing this.
In addition, the legislation made it illegal for communities to have any sort of private meeting. It also quarantined welfare for families unless they send their kids to Anglo school… This is the sort of thing the government did during the stolen generation, Matthew. It’s an act of cultural genocide.
‘It grossly criminalizes indigenous people’.
I see what you’re saying here; but under the AU intervention all people in the 70+ communities are being treated as prospective criminals. Grandmas, Gradmpas, brothers, cousins, victims of abuse. No one is exempt.
‘It blatently mischaractarizes the facts to justify the need for an intervention’.
This is not so much the case in AU, you’re right. The extent of problems are certainly well known. Rather, I would say the facts are being co-opted to justify something that has very little to do with "saving the children." Pat Anderson (coauthor of little children are sacred) pointed that out last year - how "there is no relationship between the Federal response and our recommendations. We feel betrayed and disappointed and hurt and angry and pretty pis*ed off at the same time."
‘It is entirely discrimatory’.
The point also does not so much apply to the AU intervention, because of the point you make.However, I must point out that there has been a great deal of opposition to the intervention–there has just been a media a blackout about it. There have been numerous protests , and gatherings since the intervention was first proposed. Lots of opposition has also been expressed by indigenous and non-indigenous people alike. See http://www.womenforwik.org, and federalintervention.info, nationalaboriginalalliance.org, for examples.
‘It quite clearly subverts indigenous rights’.
In this point, I was referring to Indigenous Rights on the whole; eg, those defined in the United Nations Declaration on the Rights of Indigenous Peoples. These include: the right to unrestricted self-determination; the inalienable collective right to the ownership, use and control of lands and natural resources; the right to maintain and develop their own political, religious, economic, cultural and educational institutions; the protection of their cultural and intellectual property; and the right to free, prior and informed consent.
While Australia has yet to ratify the UN declaration, these rights are generally accepted by indigenous People (throughout the world) as being self-evident. In a manner of speaking, they also take priority over State Rights. So then, while indigenous people certainly have the right to health services, etc., the "enjoyment" of these rights should not violate or nullify the rights of indigenous People.
The Intervention legislation certainly violates these rights, while doing very little in practice to alleviate poverty or to end any form of abuse… in the short term, or while the intervention is in effect, perhaps. But it can’t do it in the long term.
It would be a different story if, say, the government was giving communities money to start healing centers and other social programs tailored to the specific needs of each individual and community; and, of course, if it was applying any of the recommendations in little children are sacred which communities have been asking for longer than you or I have been alive.
Hello Ahni. Thank you for your quick and expansive response. I have not had, nor do I think I will have, an apostasy, however I will read from the various links provided. I’m not sure about the ‘media black-out’ (although I must admit I forgot about the protest outside Parliament before the apology. It wasn’t ignored by the media but it did kind of get swamped) but I have faith that our leaders read and research more widely than the general public. I also believe that the political capital is there for these issues now. Indigenous Australians have been dispossessed, then killed, then stolen, then ‘assimilated’, then ignored but I think that now they are being acknowledged. It’s a start and recently the rhetoric has been promising. There is, of course, always the fear, despite the current bi-partisanship, that it will become a political football. I guess that will be the true test of how far Australia has come.
Regards,
Matt Costigan