Beto Ricardo, Carlos Maris
After maintaining a holding pattern for a long time, the administration of
President Fernando Henrique Cardoso has started off its indigenous policy
with a package of measures whose flagship is the controversial Decree 1775,
a Trojan horse that may wreck the gains made through the 1988 Constitution.
By changing the procedures for demarcation of indigenous land and intro-
ducing the possibility that States, municipalities and other interested
parties that are opposed to it may express themselves in order to demand
indemnization or show errors in the identification and delimitation of
indigenous land, President FHC opens the season for retaliation against
indigenous areas.
If it is not cancelled by court decision or by federal government review,
the new decree will creat an enormous bureaucratic and political entangle-
ment. The damage to indigenous rights will be, in the short term, invasions
and the reopening or sharpening of conflicts. Within three months, there
will be an avalanche of demands by those opposed to identification, current
demarcation work and even registration of ratified land. For six months,
decisions taken by the Minister of Justice and President FHC on the first
lot of contested land will be closely observed. In the long run, new demar-
cations will be hostage to indemnities that the federal government can
rarely come to a decision on, as has been the case with environment
conservation units.
Opponents have always had the right to defend their interests in court
against any damages and obviously that will continue to be the case. Now,
with the same long legal deadlines, they will also clog up administrative
channels. And, worse still, according to the new decree, all demarcation
under way is subject to this kind of questioning, as long as the ratifying
decree has not been registered in a deeds office or the Secretariat of
Federal Property. What makes matters worse is that a large amount of land is
immediately affected by the measure. The Federal Indigenous Affairs Agency,
responsible for processing the expected avalanche of opposition, Funai, is
known to be run down. Although the decree provides in general terms for the
participation of indians in all phases, it does not include procedures by
which indigenous communities can defend their rights.
Based on questionable legal principles, the new decrees did not surprise
anyone. It had been announced at the beginning of the FHC administration
and drafted before Marcio Santilli took office as president of Funai in
September of 1995. Nelson Jobim, the Minister of Justice, who is a lawyer
and former federal deputy (PMDB from Rio Grande do Sul), has long been
obsessed with the idea that Decree 22, that has regulated the demarcation of
indigenous land since February 4, 1992, is unconstitutional because it does
not provide for the right of contesting. In spite of the fact that the Bar
Association has rules against such activity, Jobim acted as a lawyer against
the government in September 1993 while still a deputy; he signed a legal
opinion commissioned by the then governor of the state of Para, Senator
Jader Barbalho (PMDB-Para), who was bothered by the dimensions of indigenous
land in his state, in support of a Direct Suit of unconstitutionality of
Decree 22. With this precedent, Jobims arguments on the matter are subject
to question on ethical grounds.
Although the Federal Supreme Court ruled against it, on December 17, 1993,
the idea was revived by Agropecuaria Sattin S.A. in an injunction to cancel
the demarcation of Guarani of Sete Cerros in Mato Grosso do Sul. Jobim
sustained and drafted the decree signed by FHC with the argument that, if
the Supreme Court changes its mind and rules Decree 22 unconstitutional, all
demarcations carried out under its shield would be cancelled with with a
single stroke of a pen; the decree would resolve the [alleged] original
distortion of Decree 22.
However, the governments new measure stimulates anti-indigenous interest to
question even the land that has already been ratified and registered and
that, theoretically, would be protected by the new decree. This is certainly
the most irresponsible aspect of the FHCs supposed solution.
With the support or eminent jurists and a dossie of documents prepared by
ISA, indigenous and indigenist organizations have claimed that the ministers
reasons for proposing the new decree were unfounded and that the introduc-
tion of legal opposition, especially retroactively, is actually a mechanism
for reviewing and cutting down indigenous land. The suspicion is sustained
by experience; historically, every time the State has revised the limits of
indigenous land, it has taken some away. This historical curve of progres-
sively pushing the indians back to the frontiersand confining those remain-
ing on shrinking land began to be reversed in the last 25 years, and has
coincided with the surprising demographic recovery of the indians, their
struggle for land, their emergence on the political scene and the approval
of a chapter on special rights in the Constitution of 1988. Although the
Constitution set a five-year deadline for demarcation (Art.67 of the
provisions for transition), it was never conclued.
Did FHC wanted to send a signal of consolidation of indigenous rights by
signing a package of ratifications of demarcated land at the same time as
the decree? This will only become clear later, after he has taken decisions
on the impugning of land rights made easier by Decree 1775. Until then, the
accusation that the ratifications were windowdressing holds.
Although the new decree is being celebrated by anti-indigenous sectors, it
does not create a new law. The Constitution of 1988 is still valid. Article
231 defines indigenous land and reaffirms the collective rights of indians
to the land they have traditionally occupied. These rights prevail over
other rights and the State itself, so that any deeds and documents held by
interested parties are null and void.
Beto Ricardo is an anthropologist and Executive Secretary of ISA - Instituto
Socioambiental. Carlos Maris is a lawyer and President of ISA - Instituto
Socioambiental. This article will be published in PARABSLICAS 14 (in press),
a periodical of the Instituto Socioambiental (phone: +55-11-825-5544,
fax: 825-7861). Reprinting is authorized as long as the source is cited.