The legal limits of decolonizing heritage: Emancipation, the nation-state, and racial capitalism in Brazil

Cultural heritage law and processes, it is widely known, authorize certain forms of identity that are more often than not aligned with a national project (Lowenthal, 1998). What happens, however, when the national project turns away from being one of harmony and continuity with the past (as is still the case in many countries, most notably China, as Bideau and Bugnon show in this collection), and becomes about a break with—or at least renegotiation of—the past? What happens when, in the same breath, heritage becomes part of a project that is not just about recognition but also contains within it at least some elements of redistribution? Can we stretch the limits of the authorizing forces around heritage (Smith, 2006) so that they operate in a register that can deliver on decolonial possibilities and promises? A recent example in Brazil speaks to these questions and suggests that there is potential, albeit limited, for decoloniality through heritage.

In 2018, the Brazilian Supreme Court upheld the constitutionality of legislation that grants land rights to Afro-descendants in Brazil. These populations, known as quilombolas, who live in quilombos, are entitled to their lands partly as a measure of reparation against their historical and ongoing oppression, rooted in slavery. Their land rights are grounded in legal mechanisms that protect cultural heritage in the Brazilian Constitution. I use this context to explore the uneasy relationships between heritage, the law, and racial capitalism. I argue that the authorizing register of legal discourse is, by and large, unable to live up to the aspirations of heritage as a decolonial tool, but it can still be somewhat promising strategically for historically oppressed groups.

Brazil was the last country to abolish the enslavement of African people in the Americas. When it finally did, in 1888, it chose not to compensate former slave owners for the loss of their “property” (as was somewhat common at the time in other countries), nor to compensate formerly enslaved people for what we today would call the expropriation of their labor and bodies (Robinson, 2021). To avoid the former, the Brazilian government burned all the archives recording titles over enslaved persons. This action had significant impacts on the latter, and heritage processes and forms have since sought to correct that gap.

Specifically, 100 years after the abolition of slavery, in 1988, the Brazilian state adopted a new Constitution to mark the end of over two decades of military dictatorship. This constitution was the first to recognize multiculturalism and even acknowledge the existence of Afro-descendants in the country as a separate segment of the population with specific rights claims. Up until then, Brazil had been stuck in the myth of racial democracy, which suggests that it is a harmonious society where no racism exists, because all the distinctive ethnic groups (African Black, native Indigenous, and white European settlers) had melded into one “Brazilian” race (Ribeiro, 2000).

The 1988 Constitution sought to dislodge that myth and issue some form of reparations for Afro-descendants and Indigenous peoples in the form of land rights. To do so, some thought that quilombolas needed to show historical continuity of occupation of the land and ties to enslavement, proof of which was very difficult without the destroyed archives. The Constitution also acknowledged the “contribution” of these groups, alongside the descendants of European colonizers, to national identity (and in this way reinforcing structures inherited from colonialism, as Baracchini and Monney explore in this collection in relation to another context, and a form of “social engineering” through heritage, as Bideau and Bugnon discuss in this collection), safeguarding their tangible and intangible cultural heritage. Land rights and heritage provisions in the new Constitution sought to decolonize the Brazilian legal system. However, they only met with partial success.

Quilombolas are usually thought of today as the descendants of runaway enslaved persons. They have a much more complicated history, however, and the key feature is not having run away from enslavement but rather that quilombos have formed as a form of resistance against the slavery regime and overall oppression on the basis of race. Escaping enslavement was only one such form of resistance; resistance continues to this day, and quilombos can still form today (Figure 1).

These contrasting views between quilombos as tied to the past (which makes them historical artifacts, in a way) or part of the present (which allows them to still emerge) have been reflected over time in academic and legal discourses. The view of quilombos-as-past was, for a long time, the prevailing view, and still has a hold on legal imaginaries (Moura, 2020) in a way that enables heritage disciplines to be weaponized against minority identities by casting them as static artifacts (a discussion Haputhanthri, Juleff, and Thamotharampillai have in relation to Sri Lanka in this collection). But the conversation has been complicated over at least the past four decades with the “rediscovery” of Black resistance in Brazil (Ioruba, de Moraes, and Gomes, 2016). The consequence of the coexistence of these two views is ambiguity in the law whose interpretation and implementation is then subject to an individual judge's or other legal authority's worldviews. Whichever view wins can mean the difference between receiving or being denied land rights.

The 1988 Constitution is the first constitutional text in Brazil to openly discuss Blackness. There is a rich and complicated history of the claims made about race by Black activists and the few Black members of the Constituent Assembly in charge of drafting the next text (Engle and Lixinski, 2021). But, among the few provisions they successfully added to the Constitution is one that recognizes quilombolas’ rights to the lands they occupy (Transitory Provisions, Article 68). Another article mentions quilombos as part of Brazil's national heritage (Article 216). These two provisions were at one point merged in the drafting but ended up separated through maneuvering that sought to eliminate land rights and merge quilombola identity into a (racially harmonious) national heritage.

The provision on land rights, which barely made it into the Constitution, went unimplemented for 15 years. There were multiple drafts of legislation throughout the remainder of the twentieth century, but it was only in 2003 that the (leftist) president signed a decree implementing this provision (Decree 4.887, November 20, 2003). Immediately after adoption, farming and right-wing interests challenged the constitutionality of this legislation.

The constitutionality challenge went straight to the Brazilian Supreme Court and lasted 15 years. It was only in 2018 that the Supreme Court finally decided the case, upholding the decree's constitutionality. In doing so, it brought together the provisions on land rights and heritage that were separated in the text of the Constitution, leveraging heritage for the protection of minority property rights in a way that is familiar in other contexts as well (see Korstanje and CIIVAC in this collection).

Specifically, part of the challenge before the court was whether the provision on land rights allowed for titles held by private parties (many of whom were descendants of slave owners, since quilombolas often established their quilombos within the boundaries of the massive properties on which they had lived) to be expropriated. The decree said so, but the constitutional basis for this authorization was not clear in the Constitution's Transitory Article 68. The court then looked elsewhere in the Constitution and relied on the designation of quilombos as heritage. Specifically, the court's majority said that, since land rights allow for the cultural survival of quilombolas, quilombos were heritage, and expropriation was allowed in the name of heritage safeguarding, then the titles of landowners could be expropriated (with compensation paid) in favor of quilombos.

The judges’ reasoning, partly relying on fairly extensive quotes from Nancy Fraser's (1995) classic article on redistribution and recognition, acknowledged, for the most part, the ongoing nature of quilombola resistance. One dissenting judge insisted on quilombolas only being entitled to the land they already occupied at the time of abolition of slavery (which casts quilombos firmly in the past, in addition to the hurdles I mentioned above in relation to legal evidence and burned archives). For the most part, however, the acknowledgment of ongoing resistance necessitates coming to terms with a present that is not as harmonious as the national foundational myth of racial democracy would have it. In fact, many of the judges spoke explicitly of quilombola land rights as measures of reparation for their oppression.

At the same time, however, the court needed to rely on a heritage provision that casts quilombola heritage as one component of the nation, a provision that reinforces this idea of three ethnic groups coming together to create a unified national identity. Even if the 1988 Constitution was in many ways a new beginning for the country, it was not a total break with the past. On the contrary, buying into, rather than rejecting, a national narrative was the price for the admission of Afro-descendants for the first time in the nation's constitutional texts. And, because the court was bound to check the law against the limits of the Constitution, it also needed to accept its premises. In other words, the law's operation still enabled only a limited engagement with its transformative promises, even if heritage does have potential to support rights claims generally, as Onciul shows in this collection. Once those promises were turned into Constitutional text in 1988, the basic parameters set at the Constituent Assembly were no longer up for questioning.

The court fought valiantly within these constraints, however. It tied the heritage provisions, which called for very limited recognition as heritage, to a redistributive provision on land rights. The connections many of the judges drew between these two provisions created some breathing room for at least acknowledging racial capitalism's ongoing effects, and the importance of its critique in legal institutions and discourse.

The use of heritage in this case also points to some decolonial possibilities. Even though the court was bound by a provision that cast quilombos as part of the national heritage, many of the judges went out of their way to emphasize that it was not quilombos as physical sites, but rather quilombola practices as intangible cultural heritage, that were crucial in the justification for expropriation. The emphasis on intangible cultural heritage as living heritage allows the court, and present and future advocates for quilombola and Afro-descendant rights, to focus on ongoing social practices, including those of resistance, as anchors of legality and pathways for redistribution. In this way, the key to the future of decoloniality through heritage rests with intangible heritage practices couched in resistance, which can themselves recast the usual accounts of national heritage and racial democracy.

While the Brazilian Supreme Court, as most courts and legal institutions around the world, could not fully undo colonization and break with a past of oppression, it sought to use heritage, and particularly living heritage, as a means of retelling the story of the nation. In doing so, it presents an opportunity to shift the roles of the “usual suspects” in heritage, and to use heritage as a tool not only for recognition but also for redistribution. The focus on redistribution can tie the critique and dismantling of racial capitalism more clearly to our conversation about decoloniality and help us imagine a future in which a richer past can be tapped into to pursue forms of justice that fit the strategic aims of historically oppressed groups.