Amnesty must not be weaponised against indigenous peoples

More than forty years after Brazil’s historic amnesty campaign of the late 1970s, the issue is once again at the center of national political debate. In a strict legal sense, amnesty is defined as the government pardoning of individuals who have committed certain crimes, mainly of a political nature. Historically, the call for amnesty propelled a broad international movement in the 1960s and 1970s that sought the freedom of political dissidents who had been imprisoned and sometimes tortured by authoritarian regimes. These dissidents came to be known as “prisoners of conscience,” an expression coined by British attorney Peter Benenson, who founded Amnesty International in 1961.

In the Brazilian context, following enactment of the infamous AI-5—a law that doubled down on political repression—amnesty for political prisoners and exiles became a central rallying cry in the resistance against the business-military regime (1964-1985). The movement led to the Amnesty Law of August 1979, a watershed moment in the dictatorship’s slow process of loosening the reins of authoritarianism. Enforced as part of this tightly controlled “safe and gradual transition” to democracy, the law incorporated a dangerous quid pro quo: amnesty for crimes carried out by the state’s forces of repression and its agents. Born out of a demand for the return to the democratic rule of law, Brazil’s amnesty of 1979 ended up serving as an instrument for absolving those responsible for the grave violence done.

Following another coup attempt in Brazil, the discussion of amnesty and its historical meaning is back on the table. On the one hand, today’s Amnesty Bill, championed by far-right political forces, would pardon the masterminds and other participants in the coup-mongering acts of January 8, 2023. Reviving the discourse about “pacifying” the country once used to justify the pardoning of dictatorship crimes, this movement wants to absolve the political and military organization that conspired to assassinate a democratically elected president and establish a new dictatorship in Brazil.

At the same time, the proposed second amnesty law has backfired somewhat, reopening the debate over the impunity granted state agents for crimes committed during the 21 years of business-military dictatorship. After years of reluctance, Brazil’s Supreme Court has agreed to consider whether the Amnesty Law of 1979 applies to serious human rights violations such as forced disappearance, torture, and the concealment of bodies. The ruling will be based on the widely known case of deputy Rubens Paiva, murdered by the military in 1971. Paiva’s story is the subject of a book by his son, Marcelo Rubens Paiva, recently adapted for the screen in the highly acclaimed film I’m Still Here, directed by Walter Salles. The movie has won several awards, including this year’s Oscar for best foreign picture.

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Drawing less media attention is an additional debate now being waged in the halls of government regarding amnesty for other crimes perpetrated by the military regime. In this instance, however, the conversation isn’t framed as one about amnesty but as a technical, legal discussion that has nothing to do with the dictatorship’s history of violence and human rights violations. We are referring to Law 14.701/2023, known as the Historical Cut-off Point Law. According to this thesis, Indigenous peoples have a right only to the lands they were occupying on October 5, 1988, the date the new Constitution was enacted. But as it happens, most of the original peoples who are claiming lands they weren’t occupying on that date had been forced to abandon their territories by acts of violence.

According to the National Truth Commission’s report, state agents forced many Indigenous communities off their lands to make way for settlement projects and infrastructure works as part of the military regime’s national development plans. This was the case of the Parakanã, in the state of Pará. From 1971 to 1977, to make space for the Greater Carajás mining project, this people was displaced at least five times by Brazil’s Indigenous affairs agency Funai, once known as the National Indian Foundation but renamed the National Indigenous Peoples Foundation in 2023.

The study Memory of the Land, published by the federal Public Prosecutor’s Office in 2020, shows that the Xavante of Marãiwatsédé were victims of systematic attacks meant to drive them from their villages, culminating with their deportation as an entire group by the Brazilian Air Force in 1966. Executed in tune with a detailed plan registered in maps and reports that obliterated any trace of an Indigenous presence, construction of the Itaipu hydroelectric dam in Paraná state involved the deportation and forced transfer of countless Avá-Guarani villages.

Many Indigenous peoples were subjected to deportation, removal, and displacement by the dictatorship, including the Krenak, Guarani-Kaiowá, Nambikwara, Kinja, Tapayuna, and Avá-Canoeiro. The National Truth Commission concluded that this constituted a veritable “policy to deport Indigenous peoples from their territories, carried out by the Brazilian state.”

Implemented by government forces of violence and repression, this “deportation policy” was in many ways even more brutal than the clandestine torture facilities located in Brazil’s urban areas, where the dictatorship eliminated political dissidents like Rubens Paiva. Published in 1967, the Figueiredo Report investigated the practices of the now-defunct Indian Protection Service and documented cases of beatings and sexual abuse, kidnapping of children, extrajudicial killings, collective enslavement, and the widespread use of torture by government agents at agency outposts.

With the international community accusing it of genocide, the military government felt pressured to abolish the service, replacing it with the Indigenous affairs agency Funai in December 1967. Despite promises of reform, Funai adopted an aggressive, militarized Indigenous policy aligned with the era’s National Security Doctrine in the wake of fiercer repression following passage of AI-5 in 1968. Emblematic examples of post-AI-5 Indigenous policy include the 1969 opening of the Krenak Reformatory, a penal concentration camp where dissident Indigenous leaders from different peoples and regions were imprisoned, tortured, and sometimes disappeared.

Another notorious example were the Funai and Army operations to remove the Kinja people from the region of the Balbina hydroplant and BR-174 highway, north of Manaus. In what was practically a military campaign against insurgents, the Kinja were victims of successive forced displacements and massacres, some involving war tactics like aerial bombardments. As a result, this Indigenous population was all but exterminated.

Under the dictatorship, Indigenous policy was often ethnocidal and genocidal. Concomitantly, the Indigenous agency Funai was transformed into an extension of the National Information Service. While the government was repeatedly accused of practicing human rights violations, the military continuously monitored and persecuted the Indigenous movement, its leaders, and the civil organizations that supported them. These atrocities had everything to do with the process of dispossessing Indigenous peoples of their ancestral lands.

By establishing 1988 as the date for claiming Indigenous territory, the historical cut-off thesis ignores—better put, expunges—the fact that these lands were not occupied by Indigenous people at that point in time because of the violent invasions and forced displacements stemming from state policy. Accordingly, the historical cut-off argument is not only a threat to the integrity of Indigenous territories; it also erases from history the acts of violence and human rights violations practiced by the Brazilian state. The thesis is a way to grant another major amnesty for crimes perpetrated by the dictatorship while denying Indigenous peoples their right to truth, memory, and justice.

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Apparently, besides captivating members of the motion picture academy, the film I’m Still Here also influenced Brazil’s Supreme Court decision to reopen the Rubens Paiva case and review the Amnesty Law. Illuminating the shadow cast over the country by a new coup attempt, the film’s success has spurred public reflection on the impunity of the military regime and its consequences today. In the same vein, the Supreme Court should take inspiration from the story of I’m Still Here and also review the case of Indigenous peoples, considering the Historical Cut-off Law in the context of the right of Indigenous peoples to be recognized as the political victims of the dictatorship.

Eunice Paiva, widow of Rubens Paiva, made a career as a human rights activist and prominent defender of Indigenous causes, fighting for their territories. She clearly saw the two struggles as one and the same, with parallels between the murder of political opponents and the expropriation of Indigenous lands. Viewed through Eunice’s eyes, the body of Rubens Paiva evokes the bodies of thousands of Indigenous people who were disappeared and executed by the dictatorship. The National Truth Commission reported that at least 8,300 Indigenous people were killed as a consequence of state policy, a figure no doubt greatly underestimated, according to the commission itself.

As the demographic and cultural group hardest hit by the business-military regime, both demographically and culturally, Indigenous peoples are still invisibilized as political victims. Their bodies and stories, like Rubens Paiva’s, cannot remain disappeared, neither in narratives about the dictatorship nor within the justice system. Coming to terms with one of the most violent periods in recent Brazilian history means not only achieving justice for the prisoners of conscience who were tortured and disappeared in the military’s urban facilities but also implementing a policy of reparation for original peoples, which, fundamentally, requires the restitution of their lands.

In rethinking the amnesty granted to the torturers of Rubens Paiva and other dissidents, the Supreme Court, mainstream media, and Brazilian society in general cannot permit another amnesty for crimes by the dictatorship, this time camouflaged as the “historical cut-off point.”