The Performance of the Judiciary in Conflicts in Indigenous Lands in Bahia: A Study of the Possessory Actions against Indigenous Communities in Bahia, Brazil

Abstract

The maintenance of the phenomenon of “land injustice” was widely studied in its genesis in Brazil in a contradictory process. The action (or inaction) of justice resulted in disrespect for the communal traditions of the original peoples, consecrating private property as an absolute right. The purpose of this article is to understand how the Judiciary, after the Constitution (1988), has been active in conflicts involving indigenous lands. There are presumptions as stratagems of judicial ideology that confirm the argument of in dubio pro “owner.” It operates with the presumption of historical non-existence (of indigenous people) and clandestinity when indigenous people are considered as capitis diminutio – outside the law, even if they can be represented as subjects of law in the judicial space. The study was developed through a documentary research in 212 lawsuits with the indigenous peoples Pataxós and Tupinambás in the judicial proceedings (possessory actions, Sub-sections of Ilhéus, Federal Justice/Bahia). The discourse analysis procedure allowed us to dismantle the idea that the judiciary would be “the place where justice is done” or “the law applies,” at least where “the law is said” or where “conflicts are measured.” We affirm that this power is a space where in doubt it is decided in favor of “owners.”