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WORLDWIDE FOREST/BIODIVERSITY CAMPAIGN NEWS
ACTION ALERT-->Brazilian Indigenous Land Rights Under Assault
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Forest Networking a Project of Ecological Enterprises
June 11, 1995
OVERVIEW & SOURCE
Following you will find an urgent appeal from COMIN, a Brazilian
indigenous organization, asking for international pressure to
press the Brazilian government to stop dragging their feet on the
demarcation of Indigenous Territory (abbreviated herein as TI).
Specifically, the Rights of Indigenous Peoples, guaranteed by the
Federal Constitution of 1988, are being abridged through a
proposed decree to allow increased judicial appeals for invaders
of indigenous lands. These lands have long been known to belong
to indigenous peoples; and this legal ploy is more aimed at
halting, or greatly reducing the extent of, a more rigourous legal
demarcation of indigenous territory. Amazingly, this new appeals
process is to be enacted retroactively, threatening the size
and/or existence of 189 indigenous territories that have already
been demarcated in Brazil. There are two excellent sample letters
at the end which we appeal to you to take the time to expand upon
and send. This item was posted in econet's env.letters
conference.
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/* Written 8:22 PM Jun 11, 1995 by gn:earthrite in
igc:env.letters */
/* ---------- "Land Rights URGENT need to write." ---------- */
Subject: Campaign in favor of the rights of indigenouspeoples
Sao Leopoldo, June 7th, 1995
**Campaign of political pressure/lobbying in favor of the Rights
of Indigenous Peoples**
Dear Friends!
Enclosed you will find a Report by the Judicial Counceling
Committee of COMIN and a proposal of two model letters, inviting
you to join the campaign in favor of Indigenous Rights which we
are forwarding to the Federal Government.
The two model letters were discussed and approved unanimously by
COMIN's Council, in a meeting on the 2nd and 3rd of June, 1995.
We plead you to participate in this campaign by inviting other
entities and people to voice themselves, as soon as possible, in
favor of the maintenance of Decree 22/91, by mailing letters, fax,
etc., to the addressees and addresses enclosed or to the
Brazilian's embassy in your land. In order to engage in our
campaign, you may use our model letters.
The Rights of Indigenous Peoples, guaranteed by the Federal
Constitution of 1988, are being seriously threatened through a
malicious and interested interpretation of the Constitution. If it
is the pressure/lobbying of political interests what lead to this
sort of interpretation, let us pressure governmental officials to
favor those who hardly have representatives in the National House
of Congress.
Fraternally,
Arteno I. Spellmeier
REPORT BY THE JUDICIAL COUNSELING COMMITTEE OF COMIN
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Fellow Friends,
Last March we have sent you a letter analyzing the political
agenda of Indigenous Affairs by the Brazilian State (Executive,
Legislative and Judiciary) and calling attention to the mounting
dangers against the Indigenous Peoples in the horizon of our new
government. Currently the situation has worsened even more.
Through its Secretary of Justice, Nelson Jobim, Fernando Henrique
Cardoso's (FHC) Government is imposing, not to say "shoveling down
the throat" of Indigenous Peoples and its agencies of support, a
great deal of changes in precisely those laws that guarantee the
Indians their minimum rights. The government does not want to stop
the process of inserting a CONTRADITORIO (a Counter Decree), that
is, an amendment to Decree 22/91. This decree determines and
supervises the demarcation of Indigenous land-TI (Indigenous
Territory) in Brazil. Jobim says that this decree is
unconstitutional, since it does not give the invaders/squatters
their lawful right to defend and contest the demarcation of the
TIs.
In addition to not having demarcated any TI up to this point and
not having taken any measures to obstruct or impede new invasions
of these lands, FHC wants to guarantee, by means of this Counter
Decree, further rights to the invaders/squatters. Those invaders,
if the government is able to impose such alterations in the
legislation, will now have ample possibilities of contesting the
Indians' right to their land. Not even during the dictatorship
have military governments acted this way. FHC and Jobim have
been giving in to the pressures of economical and political
groups, notably those of PFL (a right wing party), which overtly
preaches the decrease of TIs and the restriction of the Indians
constitutional rights. Parliamentary representatives of the Amazon
Region, which are part of the "bancada amazonica", want to assure
the drastic decrease of TIs, especially of the Yanomami, and the
prohibition of TI demarcation along the boarders, and they are
lobbying strongly with the government. FHC is willing to
introduce, by means of Decree, the following alterations/
changes in Decree 22:
1- Anyone interested in TI (squatters, farmers, landowners,
lumberyard owners, miners, state and municipal governments), will
have 90 days in order to file any complaints and/or contest the
demarcation of a TI. In order to file such complaints, it will be
necessary that they present FUNAI (Official Organ responsible for
Indigenous Affairs), with reports, proofs, witnesses, to argue
that they have right over such land, or to affirm and prove that
such land is not even considered Indigenous Territory.
2- FUNAI will then analyze these contestatory complaints and will
send the process over to the Secretary of Justice, who will then
decide whether the land will stay as it is, if it will be cut down
in size, or if the given portion of land is in fact not a TI; in
such case it will not be demarcated.
3- The worst, however, will be that the government wants to extend
this procedure to all TIs, which have already been demarcated and
approved by the Presiddent of Brazil--i.e., 189 TIs. The only TIs
which will not be revised are those which have already been
notarized officicially at the Service for patrimony of the Union.
This will create a real chaos and will allow that any TI, even
those which have been demarcated long ago, to be decreased in
size, in case the squatters and invaders are able to convince
Secretary Jobim. This will not be difficult, since this is
precisely what these new amendments/counter decrees are meant to
do. The government and the invaders want, and will now guarantee,
a legal way of dimishing legal Indian Territory. These are laws
that favor the powerful and go against the rights of the
Indigenous Peoples.
What worsens the situation even further is the fact that the
Supreme Court of Justice (STF) is ruling whether Decree 22 is
constitutional or not, based on the same presupposition that TI
invaders have not had the right to a Counter Decree, to ample
defense, and that they have lost "their goods/properties" without
a right to appeal, all of which is likewise guaranteed by the
Federal Constitution of 1988, Article 5, LIV and LV. This is the
same fallacy which is being used by Secretary Jobim.
But Decree 22 is not unconstitutional. What is taking place is a
malicious distortion of facts. Brazilian laws have always
recognized the original right of Indians over their land. TIs
belong to Indians even when the land has not yet been recognized
and/or demarcated by the State. Decree 22 does not give or create
the rights Indians have over their land. This is an innate right,
a right of origin, and it is a right that precedes the formation
of the Brazilian Nation State. This decree only determines how the
State should demarcate the TIs and how it should remove its
invaders. It strictly obeys what is stated on Constitution of
1988 (CF/88), on article 231, and what, for centuries, other laws
and Brazilian Constitutions have established. Therefore, Decree 22
also does not wave the right of anyone contesting TI land, because
in front of such original Rights, it is not possible for any
other right to exist. The understanding of CF/88 is correct when
it states that any title (any right) that coincides with a TI is
NULL, and that the contestant only has rights to compensation of
property and material improvement built on the property when
whenever done in good fatih, that is, whenever something was built
when the person did not know it was TI. Therefore, Dec.22 is
constitutional. UNCONSTITUTIONAL is in fact what FHC, Jobim, and
STF are willing to accomplish.
It is against this additional blow against Indigenous Rights that
we have to protest and fight. Indigenous communities and
organizations have already stated that they do not accept any
changes in those laws. It is necessary that we all urgently write
to the government of FHC and to the Secretary of Justice,
requiring the maintenace of Dec. 22 so that the demarcation of TIs
and the expulsion of land invaders resume immediately.
Below are suggestions of letters and addresses to forward our
protest.
SUPREMO TRIBUNAL FEDERAL
Ministro Sepulveda Pertence
Praca dos Tres Poderes
BRASILIA - DF - BRAZIL
FAX 0055 61 2264797
Dear Secretary,
The original rights of Indigenous Peoples to their lands not only
were destroyed and deferred by the violence of invasions and
property spoliation. They were also imposed by immoral laws and
court decisions that rather favor the invaders' interests.
The decision to rule Decree 22/91 to be unconstitutional will
certainly be one among many such acts of violence which our
History records against Indigenous poeples in Brazil. To amend a
Counter Decree (Contraditorio) in the administrative proceedings
of Indigenous land demarcation is - besides being an
unconstitutional - an act of delay and immorality, which will give
more rights to secular invaders and destroyers of Indigenous lands
and peoples.
In addition, it is worth noting that the Brazilian Nation State
was unable to meet, twice already, the pre-established dates of
Indigenous land demarcation as foreseen by Law 6.001/73 and by the
Federal Constitution of 1988. The failure on the part of the
government only signals its alignment and connivance with such
acts of destruction.
We hereby appeal to this Court for the restoration of such Right,
in the ruling for the maintenance of Decree 22/91 and for
determining that the Executive power may meet its obligations in
guaranteeing the Indigenous Rights.
Exmo. Sr. Exmo. Sr.
Presidente da Repzblica Ministro da Justica
Fernando Henrique Cardoso Nelson Jobim
Palacio do Planalto Esplanada dos Ministerios
BRASILIA - DF - BRAZIL BRASILIA - DF - BRAZIL
FAX 0055 61 226 7566 FAX 0055 61 224 2448
Mr. President!
Secretary of Justice!
We hereby plead your Excellency to take urgent and concrete
measures to guarantee the constitutional rights of the Indigenous
Communities in Brazil.
In spite of an official plan of land demarcation and the expulsion
of land invaders, nothing in this respect has been done up to the
moment.
On the contrary, closely following the political agenda in regards
to Indigenous Affairs, we have noticed that your government is
rather hindering the fulfillment of such rights and decrees. The
alteration of Decree 22/91 will represent a serious obstruction to
the demarcation of Indigenous land.
Once again it is noticeable that what is really being pursued is
the right of the land invaders, squatters, farmers, miners as well
as municipal and state governments, and lumberyard owners. The
insertion of a Counter Decree in the administrative process of
land demarcation, besides being unconstitutional, is also an
immoral and obstructive act, which will give further rights to
invaders and destroyers of the lands that rightfully belong to the
Indigenous Peoples of Brazil. This will entail horrid consequences
and stain the image of Brazil before the International Community.
It is therefore imperative that Decree 22/91 be followed as has
been established by this government, without allowing any
alterations, as the only possible way to guarantee the rights of
the Indians to their lands, in order to cease the aggression to
which these Indigenous Communities are still being submitted.
Campaign of political pressure/lobbying in favor of the Rights of
Indigenous
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You are encouraged to utilize this information for personal
campaign use; including writing letters, organizing campaigns and
forwarding. All efforts are made to provide accurate, timely
pieces; though ultimate responsibility for verifying all
information rests with the reader. Check out our Forest Archives
at URL= http://gaia1.ies.wisc.edu/research/pngfores/
Networked by:
Ecological Enterprises 2701 University Ave., B-368 Madison, WI
53705 USA; Phone- (608) 233-2194 Fax- (608) 233-2193 Emails-
gbarry@macc.wisc.edu or switpi@igc.apc.org