ENVIRONMENTAL DEFENSE FUND INSTITUTO SOCIOAMBIENTAL
(EDF) (ISA)
1875 Connecticut Ave. NW, 10th Fl. SHIS QI II, Bloco K, sala 65
Washington, D.C. 20009 USA Brasilia-DF-CEP 716250 - Brazil
Tel . : (202) 387-3500 Tel.: (55-61) 248.2439 or 5412
Fax: (202) 234-6049 Fax (55-61 248 6420
steves@edf.org dfsocioamb@ax.apc.org
Brasilia -- April 9, 1996
Indian Land Rights Jeopardized in Brazil; Forces of Deforestation Seize New
Opportunities
Brazilian ranchers, loggers, and local and state governments and squatters
all rushed in by yesterday's deadline to file claims against Indian land
rights in Brazil. They were given their opportunity by a federal decree
that, on January 8, gave anyone who thought they had the grounds to
challenge Indian reserves created up to that point 90 days to file a
complaint with the Indian agency (FUNAI). Over a thousand complaints
relating to some seventy different Indian areas have now been filed,
demonstrating a widespread awareness of the issue and an eagerness on the
part of large landowners and state governments--as well as the federal
environmental protection agency, IBAMA-- to take advantage of the law.
State governments in the Amazonian states of Rondonia and Para challenged
all of the Indian lands open to contest within their boundaries. Rondonia
state, recipient of $167 million from the World Bank for land use zoning and
Indian land protection, has called for the reduction of four of its Indian
areas. IBAMA (the Brazilian Environmental Institute), challenged more areas
(18), covering more land than any other single claimant.
Most environmentalists in Brazil hold that tropical forest is better
protected in Indian areas than conservation units in frontier areas of the
Amazon, since IBAMA has approximately 1 guard for every 6,000 square
kilometers of reserves. (Informed in Washington DC of the agency's action,
IBAMA president Raul Jungman ordered the challenges withdrawn.) The area in
question is, taken in its totality, immense, and critical. Brazilian land
reserved for Indian use accounts for 11 percent of all land in Brazil--an
area twice the size of California, 98% of which is in the Amazon. This is
more impressive still, given than Indians make up only .02 percent of the
national population. This discrepancy has fueled objections from Amazon
politicians, development interests and the military, who argue that this is
too much land for not enough Indians. But advocates of Indian reserves,
including ISA, respond that the 1988 Constitution reserves 'lands
traditionally occupied' by Indians for their exclusive use precisely in
order to prevent the extermination or forced assimilation of the indigenous
minority. Indian land also, argue advocates, constitute important forest
reserves in areas of rapid deforestation.
"The claims against Indian land lack all legal merit" said Marcio Santilli,
former President of Brazil's National Indian Foundation (FUNAI) and
executive secretary of ISA."The only reason for the Indians to lose even an
inch of land in this process is political pressure," he added. He believes
the land claims will not hold water because none have presented the factual
proof based in anthropological field studies required to show that the areas
in question were not occupied by Indians when first identified by FUNAI.
"This is an issue where those concerned with human rights, environmental
protection, and sustainable development find common ground", said Steve
Schwartzman, staff anthropologist for EDF and visiting researcher at ISA.
"Wherever Indians have maintained control over their land, even where they
have not had formal recognition, the forest has been preserved and
opportunities for sustainable use of rainforest resources still remain."
The 946,000 square kilometers of Indian land in Brazil is nearly all in the
Amazon region and is an area more than 3 times greater than all other types
of protected areas (parks, national forests, extractive reserves) put
together. This is a reflection of the Indians' ability to force government
action, and in many cases, to control access to their land. Even where
indigenous groups have made deals with loggers and miners, as have the
Kayapo of Para state, they have kept their areas forested, turning back
ranchers and colonists. There are 215 indigenous groups identified in
Brazil, and there is evidence of perhaps 50 more still uncontacted. They
speak some 170 languages. Brazilian Indians exhibit a remarkable range of
cultural diversity and experience of contact. On one extreme are the 11
Canoe and Mequens Indians of Rondonia state, survivors of larger groups in
all probability massacred by surrounding ranchers over the last decade, who
were contacted by the government last year. On the other are the more than
20,000 Tikuna in the Upper Solimoes river, who manage their own bilingual
education and community development programs and have in some cases
demarcated their own lands. But most are small groups (under 1,000 people)
with growing populations, for whom land rights are the central issue for the
future of their cultures.
The Ministry of Justice created an international controversy by changing the
rules for Indian land demarcation with the new decree, 1775. The decree
allows private claimants and state and local governments to contest the
creation of Indian areas (or "demarcation") by the federal government, by
furnishing proof that the area contested is not land traditionally occupied
by Indians as defined in Article 231 of the Constitution of 1988. The decree
applied retroactively to all Indian lands with federal recognition (some 160
areas), except those fully officially registered. The new decree was
denounced by indigenous and Indian rights organizations as a maneuver to
roll back land rights won over the last thirty years. The Justice Ministry
maintains that the decree was necessary to guarantee private claimants and
state and local governments due process, and that previous regulations were
unconstitutional. This is the opening volley in the controversial process.
FUNAI will have 60 days to prepare responses to the 1,000-plus challenges,
after which the Ministry will have 30 days to decide on the disputed areas.
But the Minister of Justice Nelson Jobim can then take a further 90 days
before taking a final decision to gather new information if he deems it
necessary. The process could become a legal tangle, and even one area
reduced, or indemnification paid could result in an explosive precedent.
Although the intent of the decree, according to Minister Jobim, was to make
the demarcation process transparent and immune to constitutional challenge,
the effect could be the opposite. The numerous requests for indemnification
seek compensation for land, prohibited by the Constitution (which only
allows compensation for improvements made "in good faith" on land later
declared indigenous). Approving payment for land, or agreeing to reduce
already recognized Indian lands could invite an avalanche of lawsuits,
paralyzing the demarcation process in the courts indefinitely. The final
90-day period for the Minister to seek further information could become a
pretext to carry out new surveys that reduce existing Indian lands. Since
indigenous land is legally public property (to which the Indians have
permanent use rights), this could have long term implications for public
lands of all types in Brazil. "Rather than rationalizing the creation of
Indian areas, the decree has thrown the process into pandemonium," said
Marcio Santilli of ISA. "The government has no arguments left to delay the
demarcation of the areas not contested, and should act on these
immediately."
For further information contact: Steve Schwartzman
ISA/EDF 55-61-248-2439, 248-5412, fax-55-61-248-6420
dfsocioamb@ax.apc.org