Indigenous Rights in Brazil: Stagnation to Political Impasse
by Beto Borges and Gilles Combrisson (*)
On October 5, 1988 Brazil wrote a new Constitution which replaced that of 1967, starting a new chapter in the history of this country after 20 years of military dictatorship. The new Constitution gave special emphasis to human rights and instituted very positive policies, such as the guarantee of indigenous people's rights. Article 231, specially, recognized both the cultural and territorial rights of indigenous peoples based on their traditional heritage. It acknowledged and established their right to permanently live on their traditional territories, including the exclusive use of the natural resources necessary for securing their cultural integrity and welfare. The formal protection against the invasion of their territories was also inscribed in the new Constitution.
To the enthusiasm of indigenous peoples and sectors of Brazilian society in solidarity with their cause, article 67 of the new Constitution ordered the demarcation of all indigenous territories in Brazil within the following 5 years. Brazil was applauded internationally and it was hoped that its historic debt to the indigenous peoples living within its national borders was going to be resolved. Five years later, however, less than half of all indigenous territories had been demarcated. The Brazilian government failed to uphold its constitutional decision: demarcate all indigenous territories by October, 1993.
Today, almost ten years after the 1988 constitutional revision, 291 indigenous territories out of the total 559 still await formal demarcation. Brazil has had four presidents in these past ten years. Ironically, most demarcations occurred under President Collor who was impeached in 1992. In only two years of government, Collor delineated the boundaries of 58 territories and finalized the demarcation of another 112, including the Yanomami territory, totaling more than 125 million acres. President Itamar Franco legalized 55 territories in two years of government. A general optimism followed the victory of President Fernando Henrique Cardoso given his political history and academic profile. Nevertheless, his government has so far fallen short from that of Collor's achievement, having delineated the boundaries of 30 territories and finalized the demarcation of another 46, about 46.5 million acres. Almost ten years and four presidents after the Constitution of 1988, 52 % of the indigenous territories still need to be demarcated and article 67 has yet to be achieved.
This slow progress in demarcating indigenous lands was further aggravated in January1996 when President Cardoso signed Decree #1775 into law. Written and proposed by Minister of Justice, Nelson Jobim, the decree introduced the so called principle of contradictory within the administrative procedure for demarcating indigenous lands. It provides a legal mechanism for those who also claimed access to indigenous lands to appeal against their demarcation, giving a chance for commercial interests, such as ranchers, miners, and loggers, to present their case. Despite strong opposition both in Brazil and abroad, Nelson Jobim defended the decree as necessary to adjust and expedite the demarcation process and Fernando Henrique Cardoso guaranteed that no reduction of indigenous lands was going to take place. In a speech before the United Nations Commission on Human Rights, Jobim announced that the government's intent was to implement "without obstacles our objective of regularizing all indigenous lands in Brazil." He acknowledged the financial support from the World Bank Rainforest Trust Fund and the G-7 countries, but has been incapable of utilizing these funds because of the obstacles he created.
Contrary to expediting the demarcation of indigenous territories, the introduction of Decree 1775 has delayed it even further. According to FUNAI (The National Indian Foundation), there were 531 contestations against 83 different indigenous areas. Nelson Jobim dismissed most of these, except for 8 areas on which he ordered further evaluation by FUNAI, including the controversial case of the Raposa/Serra do Sol territory in Roraima. Adding the number of indigenous areas that were not contested to those contested but rejected by Jobim gives a total of 148 indigenous areas that technically should be ready for final demarcation. However, the document that outlines the administrative steps to execute Decree 1775 (Portaria #14) requires a lot of extra documentation in the process of identifying areas traditionally inhabited by indigenous peoples. This has created a serious obstacle within the demarcation process and opened a dangerous potential for the reduction of indigenous territories throughout the country. Since Decree 1775 was implemented, no new indigenous area has been identified or demarcated.
Last December 24, the situation deteriorated even further when Nelson Jobim ordered the reduction of the Raposa/Serra do Sol indigenous territory. His decision favored the interests of local ranchers and miners who have illegally invaded this indigenous area. It sets a very dangerous precedent by allowing commercial interests to invade indigenous lands that have been guaranteed under Article 231 of the Brazilian Constitution. If his decision goes into effect, it may lead to the reduction of other indigenous areas in Brazil. After the end of the military dictatorship, this is the first time that the government orders an indigenous territory to be reduced.
This overall stagnation and potential for the reduction of indigenous lands only accentuates the already pitiful reality of indigenous peoples in Brazil. Invasions of indigenous lands continue to increase, causing the destruction and pollution of the natural resource base on which they rely for physical and cultural survival. Invasions also continue to spread infectious diseases and generate violence. In 1994 and 1995 alone, there were 75 reported cases of indigenous people murdered, mostly as a result of land conflicts. The federal government has done little to curtail these invasions and FUNAI is incapable of delivering much needed assistance for indigenous communities. Currently, several indigenous groups face serious threats.
Guarani-Kaiowa: Despair and Suicide
Perhaps the starkest example of the crisis of Indian lands in Brazil is the case of the Guarani-Kaiowa territory in the southern state of Mato Grosso do Sul, where over the past decade, over 300 Indians have taken their own lives in despair. Poverty, expulsion from traditional territories in recurrent disputes with wealthy ranchers, and the overpopulation of the remaining lands are the main factors leading this unique people to slow extinction. Today, over 22,500 Guarani-Kaiowas are pressed into a fraction of their original territory-22 recognized areas near Dourados, a city on the Paraguayan border. In one village called Bororo, 3,700 are packed into 3,600 hectares, a veritable death sentence for a people accustomed to utilizing vast expanses of land for their sustenance.
Several areas of the Guarani-Kaiowa territory have been the site of intense and at times lethal struggles for land. The area of Sete Cerros, for example, was heavily contested by an agro-industrial company by the name of Sattin Agropecuaria S.A, which has made full use of Decree 1775 and sued the state, claiming title to the land. As a result, Minister of Justice Jobim has targeted the area for revision, along with seven other Indigenous areas.
In another village known as Jarara, the Guarani-Kaiowa reoccupied their lands in March 1996, stating that "We are returning to our Jarara village because we Indians cannot live anymore on the periphery of the city because we cannot even practice our cultural traditions." The 247 Guarani-Kaiowa-Nandeva people had seen their 590 hectare reserve officially legalized under Brazilian law. But, in 1993, Miguel Subtil de Oliveira, a rancher who also claimed the area, succeeded in having a judge issue a restraining order forbidding the Indians from occupying their own land. After a campaign of support from Brazilian entities and international NGOs combined with the threat of more suicides, Judge Theotonio Costa, of the Regional Federal Court in Sao Paulo, revoked his previous ruling authorizing the eviction of Jarara's inhabitants.
Recently, in another village known as Sucuriy, 53 Guarani-Kaiowa were illegally evicted by armed civilians. The 14 Guarani-Kaiowa families are now camped on the roadside about two kilometers outside Maracaju, and awaiting a judicial decision that would allow them to return to the area, which ironically has already been demarcated.
Yanomami: Renewed Invasions, Government Inaction
Brazil's government suspended its helicopter surveillance operation of the Yanomami area on March 6, 1996, and as a result, thousands of gold prospectors have reinvaded Yanomami territory in Northern Brazil. Thirty five clandestine airstrips have been chopped out of the forest. There is fear that at any moment, Venezuela will also expel several thousand more Brazilian gold miners who crossed the border as the result of earlier operations; many would simply resettle in Yanomami territory in Brazil.
On June 5, 1996, frustrated with government inaction towards the invasion of his people's territory, Yanomami leader Davi Kopenawa sent a letter across the world opening with: "We Yanomami send a message to you. We are very worried that our Yanomami area is being again invaded by gold miners...." At the time he wrote his letter, there were a total of 7,000 illegal gold miners in Yanomami territory; 3,000 in Brazil and 4,000 in Venezuela.
The dimension of the problem caused by the illegal presence of prospectors in Yanomami lands can be better understood from Indigenous people's perspective: the mere presence of a single foreigner can mean the spread of plague, and widespread death. For the Yanomami, the lack of immunity to ailments introduced by miners, the rise in cases of malaria, and their dependence on natural resources poisoned by mining activities has predictably resulted in numerous deaths. In April 1996 alone, 12 Yanomami died from malaria. In addition, the lawless atmosphere of the mining camps has been characterized by prostitution and gun violence. In November of 1996, three Yanomami and one miner died following a conflict in Erico village, in Roraima state. In this case, the information got out. Many more conflicts end in death and are never investigated.
The Commissao Pro-Yanomami, a Brazilian NGO that works closely with the Yanomami, had managed to achieve good results in improving health through its work in the area throughout the last two decades. These good results will be completely undermined if the invasion is allowed to continue. In other areas, various NGOs and government programs are running into similar difficulties.
Following a public reading of Kopenawa's letter the same month it was sent, Jobim pledged to allocate a sum of US$ 5 million to resume the Free Jungle Operation, aimed at removing miners from indigenous areas. At this point, however, it would be accurate to say that the Yanomami and indigenist forces internationally are losing faith in government promises. What is needed is concrete action.
Nambikwara: Loggers and Miners Attack
In Mato Grosso state, the Nambikwara people are under attack. In November, a group of miners and loggers ambushed, tied up, and beat at least 14 people. This occurred inside the Sarare Indigenous area. The village was looted, money was taken, even the school was ransacked. People who support the Nambikwara have received death threats. As a further example of government non-compliance, a clause in the 1992 Loan Agreement for the Mato Grosso Natural Resource Management Project between Brazil and the World Bank conditioned release of $200 million in Bank funds on removal of illegal miners in the same area.
The Nambikwara people became known internationally when Brazil's military government decided to build a road (BR 364) from Cuiaba to the western outpost of Porto Velho in the heavily colonized state of Rondonia. Yet again, uncontrolled colonization brought epidemics, violence and death, this time upon the Nambikwara. They were relocated, and decimated. The few that remained fought to return to their traditional territory, and in 1990, the government finally registered 67,420 hectares as the Sarare Indigenous area.
Removing invaders from Indigenous lands in Brazil is a lesson in bureaucracy, and at times even corruption. The Nambikwara are a case in point. In 1991 the Nucleus for Indigenous Rights (NDI), a Brazilian NGO, sued the government on behalf of the Nambikwara for failing to remove 6,000 illegal gold miners working in the Sarare area. They had wrought devastation to the riverine environment by practicing placer mining-illegal in Brazil as provided by article 231 of the Brazilian constitution. In addition, the mining camps had spread venereal diseases and malaria throughout the area. On December 18, 1991, a federal judge in Brasilia ordered FUNAI and the Brazilian Environmental Institute (IBAMA) to dislodge the miners.
By April, nothing had been done. The NDI and various other Brazilian NGOs notified the World Bank of this, since it followed a policy of Indigenous land protection as part of the development project it planned to lend out money for in Mato Grosso. It then became clear that state governor Jaime Campos had made an illegal deal with the miners to the effect that they should maintain their invasion until the date of the loan approval. The World Bank then conditioned its loan on the removal of miners and the environmental clean up, and pushed back the date of effectiveness to 1992. In 1996, even though invasions were still continuing, the Bank disbursed half of its loan to the state of Mato Grosso.
Macuxi: A Quarter Century of Struggle Ends in Disappointment
Twenty five years ago, Jacir Jose Macuxi and a few other prominent Macuxi initiated the struggle to demarcate their 1.6 million hectare territory (Raposa/Serra do Sol) in northern Brazil, on the torrid savannas of the Venezuelan border area in the state of Roraima. There too, gold miners and ranchers had taken hold and were spreading Falciparum malaria, a deadly strain of the disease that was steadily killing off the people.
"Many people fell sick," says de Souza. "My wife was one of them, and she died."
In 1995, the government even proposed to build a dam inside the area. Then, backed by state government leaders, the invaders of Raposa Serra do Sol voted to form a new municipality inside the Indigenous area.
After the passing of Decree 1775, Raposa/Serra do Sol became one of the most heavily contested instances of Indian land. It's location on the Venezuelan border makes it strategic land for the Brazilian military, always fearful of foreign encroachments on its territory. "Nationalizing" the border regions, or sponsoring the settlement of "Brazilians" as opposed to Indigenous people-who lie outside the national project-has for a long time been a policy of the Brazilian state.
Knowing the dangerous changes instituted by Decree 1775, the world waited anxiously for a final decision from Jobim on this key area which would set a precedent for others. On December 24th, the decision fell like an ax: Jobim, in a decision taken with President Fernando Henrique Cardoso, ordered FUNAI to cut a chunk out of Raposa Serra do Sol the size of Rhode Island (200,000 hectares of Indian land) for some 14 ranchers to whom the National Institute for Colonization and Agrarian Reform (INCRA) has been issuing titles since 1982. It also calls for creating enclaves of non-Indian land in the middle of the indigenous reserve for five decaying gold boom towns-a blatant invitation to violence. This decision sends a clear message across the Brazilian frontier: Never mind the constitutional right Indigenous peoples in Brazil have to their traditional territories; it's open season on Indian lands.
The Mahogany Battle: Parakana on the Front Lines
Indian territories in the Amazon are often the last repositories of precious woods and other natural resources. Knowing this, illegal loggers do much of their work on Indian lands. For the Parakana people, who inhabit the Apyterewa Indigenous area in southern Para state, particularly for youths, contact with loggers has translated into dependency, alcoholism, and exploitation as the result of the illegal smuggling of mahogany.
Six months ago, the Brazilian state issued a federal decree that imposed strict restrictions on the logging of Mahogany. But the Amazon is big, and the enforcement of such legislation daunting.
The situation of the Parakana was denounced by the O Globo Brazilian newspaper. Dwellers of the municipality of Sao Felix do Xingu spoke with reporters. In the exploitation scheme, the Parakana get food and alcoholic beverages to locate stands of Mahogany. Some have used firearms provided by the woodcutters to drive away FUNAI officials and other persons who may try to stop the smuggling. It is estimated that at least 15% of the 980,000-hectare indigenous area was invaded by woodcutters, miners, farmers, and settlers. The sawmills that process the smuggled Mahogany are only 100 meters away from the airport of Sao Felix do Xingu. FUNAI doesn't have the staff or resources necessary to do anything about the situation.
The Parakana Indians, however, have organized to help federal agencies in the task of curbing invasions and preventing the exploitation of the hardwood. In 1993, they destroyed machines and other tools of the Perachi timber company as a means to intimidate invaders. This timber company, one of the largest in the region, defied the public powers by illegally exporting mahogany and, in the process, devastated 5,000 hectares of indigenous territory to open pasture areas.
The longer it takes for all indigenous territories to be demarcated, the situation of indigenous communities deteriorates and Brazil gets farther away from upholding its Constitution. The delay in securing the human and traditional rights of indigenous peoples aggravates their problems and continue to encourage the pillage of their territories by the usual bunch of criminal cartels that operate throughout the country. Controversial policies like Decree 1775 intensify a political impasse which discredits the federal government and may cost the reduction of indigenous territories not yet demarcated. As time goes by, the violation of indigenous rights increases this gap between apathy and justice, giving way to sad statistics which seem to perpetuate the historic debt towards the first inhabitants of Brazil. Beyond chapters of a constitution, we need to arrive at a reality where indigenous rights are indeed secured and their cultural wealth considered a contribution instead of an obstacle.
Sources: Instituto Socioambiental, Comissao Pro-Yanomami, CIMI, CAPOIB, and Amazon Coalition.
(*) Beto Borges is the Director of the Brazil Program at Rainforest Action Network in San Francisco
Gilles Combrisson is the Journal Coordinator for the South and Meso American Indian Rights Center (SAIIC)
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