INSS: Justice decides on death pension for indigenous people – 06/03/2023 – Mônica Bergamo

The 5th Federal Civil Court of the Judicial Section of Pará decided that the INSS (National Institute of Social Security) must accept declarations made by Funai (National Foundation of Indigenous Peoples) as proof of marriage or stable union between indigenous people. The decision, which has national coverage, will include those who seek to receive the death pension.

The decision was made in response to a lawsuit filed by the Federal Public Defender’s Office (DPU). The agency reported to the court cases of indigenous people who were unable to obtain the benefit left by their spouses because they had not sealed their marriage or union in accordance with the Civil Code.

Documents such as a declaration of stable union and a joint bank account can also be used as material evidence – but they are not always accessible to native peoples, pointed out the DPU, who are governed by their own customs and traditions.

“It is disrespectful to expect indigenous peoples to establish a stable union along the lines of the way the non-indigenous population knows and, above all, to expect them to provide documentary evidence, bearing in mind the unique situation of each community, based on local traditions,” said Judge Mariana Garcia Cunha, from the Federal Court of the 1st Region.

The magistrate also highlighted that indigenous people have different realities, from those who live in urban centers and have access to documents provided for by the INSS regiment to those who inhabit more isolated regions. And she stated that Funai’s collaboration, which follows the groups closely, should be more valued.

“Funai represents the State itself in the bridge between the indigenous peoples and the public power and has the capacity to document what happens in the family nucleus”, said the judge.

“Funai’s declaration of stable union, issued at any time, must be accepted as proof or, at least, in the understanding of the civil servant analyzing the demand —if the declaration is very succinct—, as the beginning of material proof, to be completed by testimonial evidence”, he also said, determining that the INSS change its procedures within 180 days. The decision can be appealed.

When contesting the action, the autarchy stated that the legislation does not authorize the granting of a death pension based solely on a Funai certificate and that the social security regime can be extended to indigenous people provided that “under equal conditions”, with compliance with the requirements imposed on everyone.

The INSS also said, according to the decision, that “the preservation of indigenous culture is something voluntary, not imposed, and is guided by a non-monetary economy, where money does not circulate, which is why it would not make sense to grant indigenous people a pecuniary benefit” .

The decision of the 5th Federal Civil Court of the Judiciary Section of Pará accepted the argument presented by the DPU that the requirement that indigenous peoples conform to parameters of civil legislation violates the Federal Constitution and a convention of the International Labor Organization.

“The Constitution of the Republic of 1988 expressly enshrines the recognition of the way of life of indigenous people, guaranteeing them adequate treatment according to their particularities”, said regional human rights defender Raphael de Souza Lage Santoro Soares, when presenting the action.

Santoro reported cases of indigenous people who went to the INSS to request a pension for death and took with them their birth certificate, RG and CPF, and that of their dead spouse, in addition to a death certificate. The body, however, understood that it was not possible to prove the status of dependent and beneficiary.

“The INSS limited itself to rejecting the administrative requests, without observing the particularities of the case”, said the regional defender.

When asked to comment, the Federal Public Prosecutor’s Office also took a position in favor of the certificate issued by Funai being considered sufficient to prove the status of a dependent in the event of a death pension.

_{with BIANKA VIEIRA, KARINA MATIAS It is MANOELLA SMITH}

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