September 22, 2021
During the Brazilian civil-military dictatorship (1964-1985), many indigenous peoples were targeted by the State’s economic development policy and the repression that, through land invasions, forced labor, compulsory displacement and other violations caused death and suffering to numerous communities. According to the Final Report of the National Truth Commission (CNV), at least 8,350 indigenous individuals were killed as a result of the direct action or omission of state agents. However, the Report itself recognizes that the actual number of indigenous deaths in the period must be exponentially higher, as data are scarce.
One of the ethnic groups most affected by the abusive and arbitrary acts of the civil-military dictatorship was the Krenak indigenous people. Its history of violations during this period is one of the most recorded and studied in Brazil; however, more than 50 years after the facts, the repair process is still incomplete.
The last September 13th, on the other hand, was a milestone in the search for reparation: the Union, the National Indigenous Foundation (Funai) and the state of Minas Gerais were judicially condemned for the violations committed against the Krenak people in that period. The defendants must adopt a set of measures, including the completion of the administrative process of demarcation of the Indigenous Land, incorporating the location called Sete Salões, considered sacred by the community, and the holding of a public ceremony for the State to recognize the violations and make a public apology to the Krenak people.
This leads us to think: what were the violations perpetrated against the Krenak? What steps have been taken so far to repair them? What does the conviction represent for transitional justice in Brazil?
Three critical episodes mark the violations suffered by the Krenak during the Brazilian dictatorial period: (i) the creation of the Rural Indigenous Guard (Guarda Rural Indígena); (ii) the installation of a prison called Krenak Reformatory (Reformatório Krenak) and (iii) its forced displacement to the Guarani Farm (Fazenda Guarani).
In 1969, the Indigenous Rural Guard was created, within the scope of Funai, to carry out the ostensible policing of forest areas. The indigenous people were then recruited, trained, dressed in military uniforms and charged with maintaining internal order in their villages, carrying out arbitrary arrests and applying penalties, which even involved torture techniques, against members of the community itself. The implantation of the Indigenous Rural Guard contributed to an extremely violent process of cultural and social disarticulation, aiming at the implantation of the prevailing assimilationist paradigm.
Still in 1969, after the hardening of the military regime in Brazil, especially after the publication of Institutional Act No. 5 of 1968, Funai and the Military Police of Minas Gerais created the Krenak Reformatory. According to the official discourse, it was a center for the re-education of indigenous people considered to be rebels.
In practice, however, the Krenak Reformatory was a prison that held indigenous people from at least 11 other states in degrading conditions. Forced labor, torture and other forms of rape, such as food deprivation and solitary confinement, were common; and there was no due legal process or prior fixing of the length of the sentence.
Furthermore, the Reformatory had a strong impact on the Krenak people and their traditional form of organization. The military control exercised over the community prevented the Krenak people from using their mother tongue, practicing rituals and holding their traditional festivals. This meant the violation of their cultural integrity and spiritual rights.
Due to land conflicts with farmers, the government of the state of Minas Gerais and Funai carried out the forced transfer of the Krenak to the Guarani Farm, in 1972. The objective was to encourage the installation of economic enterprises through the donation of Krenak land. However, the Guarani Farm, 200 kilometers away from the land traditionally occupied by the people in question, had completely different characteristics, with a much colder climate and scarce food. Thus, the Krenak people became isolated from their traditional territory and from the natural elements that make up the Krenak worldview, such as the Doce River, which aggravated the process of cultural disintegration.
Subsequently, the entire repressive apparatus of the Krenak Reformatory was transferred to the Guarani Farm. After suffering immeasurable violations, the Krenak began to flee and return to their traditional lands. They managed to establish themselves in a small area on the left bank of the Doce River, near the municipality of Resplendor (MG), where they currently live.
On March 23, 2015, the Public Prosecutor’s Office (MPF) submitted a collective amnesty request to the Amnesty Commission, an organ responsible for recognizing State oppression during the dictatorship and granting compensation to victims or their families. The MPF expressly requested “the recognition of human rights violations perpetrated against the Krenak indigenous people by the Brazilian State, accompanied by a public apology; and collective economic compensation for the Krenak indigenous people, as the acts of the dictatorship caused their social and cultural collapse”.
In addition to not having been considered up to the present day, this request collides with the Brazilian legislation that conceives amnesty only at the individual level. The procedure is defined as “individual, except in the case of the applicant’s death, when all successors and/or dependents must apply together” (Procedural Rules of the Amnesty Commission, art. 1, §1). Therefore, there is no guarantee that the requirement will be properly interpreted considering the collective legal personality of indigenous peoples.
Legal personality is the legal mechanism that grants citizens the necessary conditions for the full enjoyment of fundamental rights. In the case of indigenous peoples, these rights are exercised collectively, as they organize themselves into groups and maintain traditionally community ways of life.
A second measure adopted was a public civil action also filed by the MPF on December 15th, 2015, against the Union, Funai, the State of Minas Gerais and Manoel dos Santos Pinheiro, known as Capitão Pinheiro, a member of the Armed Forces and responsible for the creation and installation of the Indigenous Rural Guard, administration of the Krenak Reformatory and compulsory transfer of indigenous people to the Guarani Farm.
Almost six years later, on September 13th, 2021, a favorable sentence was handed down condemning the first four. In addition, the existence of a legal relationship between defendant Manoel dos Santos Pinheiro and the Union, Funai and the state of Minas Gerais was recognized, since Captain Pinheiro was a public agent and acted on behalf of public entities convicted of violating the rights of the Krenak people.
Finally, on October 18th, 2019, the MPF filed a criminal action accusing Capitão Pinheiro of the crime of genocide, alleging that the three episodes mentioned above were carried out with the objective of destroying the Krenak ethnic group. The judge in the case ruled on its admissibility; however, it is known that no agent involved in the violations during the dictatorship has been convicted among all 40 criminal actions filed so far.
The Brazilian Judiciary has admitted the thesis that such crimes have expired, that is, it would no longer be possible to punish those responsible. This thesis, endorsed by the Brazilian Amnesty Law, is in opposition to the understanding consolidated in the International Human Rights Law that crimes against humanity are imprescriptible. The Brazilian State has already been convicted twice before the Inter-American Court of Human Rights for failing to fulfill its duty to investigate and punish those responsible for the serious violations of rights committed during the dictatorship. In addition, Captain Pinheiro is 89 years old, a fact that demonstrates, more than ever, the need to invest in measures that go beyond criminal proceedings.
The Brazilian dictatorship did not mean the beginning, much less the end, of human rights violations imposed on indigenous peoples. The Krenak case is just one among several that are still pending repair and, unfortunately, the obstacles to the transitional justice process are added to the current actions and omissions of the Brazilian State, such as the inability to manage the pandemic and the risk to original rights, with the discussion about the time frame thesis, making them even more vulnerable.
In this sense, it is necessary to strengthen the reparation mechanisms with the challenge of incorporating into the pillars of transitional justice the elements of sociocultural diversity that address the reality of victims of serious violations of human rights. It is in this scenario that the court order to conclude the administrative process for the demarcation of the Krenak Indigenous Land represents an interesting attempt to add a collective dimension to the reparations, going beyond the traditional pecuniary compensation measures.
Furthermore, the public apology, when formulated in consultation with the Krenak people and directed to the community, may also represent an advance in the reparatory process, contemplating the collective issue and being constructed in accordance with the principle of victim centrality and with the right to prior consultation of traditional communities. This is a first step in building non-repetition guarantees that achieve the objective of preventing new violations.
By Letícia Soares Peixoto Aleixo  and Sophia Pires Bastos .
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 PhD candidate at the Federal University of Minas Gerais. Co-coordinator at the Human Rights Clinic of the Federal University of Minas Gerais; and a Law Professor at Milton Campos College.
 Master’s in Law Student at the Federal University of Minas Gerais. Researcher at the Transitional Justice Center (CJT/UFMG).