The Constitution of Brazil is extremely generous in all it says about indigenous rights. They include, for instance, not only the protection of indigenous culture but also the right of Indians to determine the use of their lands.
According to the Inter-American Commission on Human Rights, “The Chapter [on indigenous rights] of the Brazilian Constitution is devoted to one of the most advanced normative positions in comparative legislation.
“Its provisions relate directly to the Indians’ rights, surpassing the doctrine of ‘natural assimilation’, and grant permanent recognition to the inherent original rights of the indigenous people, predicated on their status as the initial historical and permanent occupants of their lands”.(1)
Indigenous lands are characterized by the Brazilian Constitution as those traditionally occupied by indigenous people on a permanent basis, as well as “those used for their productive activities, those indispensable to the preservation of the environmental resources necessary for their well-being and for their physical and cultural reproduction, according to their uses, customs and traditions”.
Thus an eminent constitutional lawyer, Manoel G. Ferreira Filho, argues that such description of ‘lands traditionally occupied by Indians’ is so broad that it would be easier to explain which lands the non-Indians can occupy.
The 400 thousand Indians who live in Brazil have the legal right to occupy 946 thousand square kilometres. In other words, less than 5% of the Brazilian population holds impressive 12% of the national territory, a fact that makes of the indigenous community the biggest landowner in this country.
This also means that the quantity of lands classified as indigenous reserve is much bigger than the territory of any European country, except for the Russian Federation. In France, for instance, about 59 million people share a territory which is less than 544 thousand square kilometres.
Indigenous lands are the permanent possession of the indigenous people, who have the exclusive usufruct over the riches of the soil, the rivers, and the lakes existing therein.
In addition, the Supreme Court (STF) has decided that any statute or contract that can result in the reduction or alienation of indigenous lands is unconstitutional.
Only the elected members of National Congress can authorize the exploitation of hydric resources and/or mineral riches in the indigenous lands. If so, a share of the profit has to be ensured for the Indians.
They can not be removed from their lands except by the approval of congressmen in cases of catastrophe and/or epidemic. Even so, they have the right to return to their lands as soon as the risk ceases, for the land rights of Indians are considered inalienable and not subject to limitation.
Brazil has established a special federal agency only to uphold the cultural values and background of the indigenous community. The National Indian Foundation (Funai) is a federal agency charged with promoting the rights of Indians, including the basic right of every indigenous person to education, heath care, and legal assistance.
Regardless of all these rights (and lands), half of the Brazilian Indians rely on a federal program of basic food baskets to survive. Indians are facing problems of poverty, diseases, and poor health care.
For example, the medical department of Funai estimates that 60% of the indigenous population suffer from chronic diseases such as tuberculosis, malaria, or hepatitis.
And Funai also acknowledges that non-indigenous people have illegally exploited the indigenous reserves for mining, logging, and agriculture.
A notorious example of disregard for basic rights of the Indians occurred in 1997, when a federal judge dismissed manslaughter charges against four youngsters who doused an indigenous person with gasoline and set fire on him.
They argued as legal defence that they did not want to hurt an Indian, as they thought the victim was ‘just’ a beggar. It is important to consider in this case that one of the defendants was the son of another federal judge.
On May 9, 2004, the Amnesty International (AI) released a document suggesting that the situation of the Indians has ‘deteriorated’ since President Lula took office in 2003. The AI informed for instance that 27 Indians were murdered in 2003, three times more than in 2002.
The Indigenous Missionary Council (Cimi), one of the NGOs responsible for the data produced by AI, suggests however that the correct number could be 31 deaths. Its vice-president, Saulo Feitosa, argues that the Cimi backed the AI report only because some Indians were still missing, and, therefore, could not be classified as dead.
The Brazilian law espouses a paternal approach towards the indigenous person, particularly in relation to criminal law. The Statute of the Indian, in its Article 56, declares that sentences shall be attenuated in cases of conviction of an Indian.
In 1980, Chief Raoni of the Txucarramãe Indians ordered the massacre of 30 peasants at the Xingu National Reserve. Raoni was not even charged for the killings which he proudly confessed to have ordered.
In 1988, Sting, a British rock-singer, served as Raoni’s patron during his ‘official visit’ as indigenous leader to European countries. On that occasion, Pope John Paul II, France’s President François Mitterrand, and Spain’s King Juan Carlos, received Raoni with all the honours of state leader.
In 1989, Sting raised US$ 1,5 million for the Caiapó Indians. He probably did not know that Chief Paiakan of Caiapó Indians had already become a millionaire by illegally exporting mahogany to Europe.
In 1993, after federal police arrested many loggers operating illegally in the Caiapó reserve, Chief Paiakan and other Indians, “who had made a deal with the lumber dealers, protested vehemently against the actions of the police as an improper intrusion in their business”.(2)
In May 1992, Chief Paiakan brutally raped and tortured an 18-year-old student called Sílvia Ferreira. He confessed the crime but warned that a ‘white blood roll’ would be carried out if police tried to execute the order for his arrest.
Although Paiakan was judicially sentenced to six-year jail, the order was never executed because police officers were too afraid to arrest him. Then, a few months later, a visibly scared judge absolved Chief Paiakan during a trial in which the indigenous leader appeared at the courthouse backed by hundreds of Indians armed with clubs.
More recently, approximately 350 Guarani Indians decided in February 2004 to invade productive farms in the state of Mato Grosso do Sul. They stole cattle and burned all the buildings.
Not satisfied with the size of their lands, they claimed that attacked farms also belonged to them, because those lands had been ‘stolen’ from their ancestors four centuries ago.
In March 2004, the chief of the Cintas-Larga Indians ordered the assassination of 29 prospectors in northern Brazil. It seems that prospectors had not given him the amount of money requested for the illegal mining in his reserve.
Chief Pio declared that those killings were ‘just a warning’ for those who dared to mine in his land without consent. As anyone who really knows this country would expect, no charges were raised against him.
Actually, Funai’s President Mécio Gomes considered the massacre of prospectors a ‘normal thing’ because those Indians would have, in his opinion, the right to kill people who invade their property.
Although the Lula da Silva administration enacted in 2004 a statute which prohibits law-abiding citizens to possess firearm, the press has displayed photos of Cinta-Larga Indians proudly carrying their potent rifles.
While they seem to have a ‘special license’ from the Workers’ Party (PT) government to disrespect the legislation, gun-control has been rigorously enforced on ranchers who dare to protect their property against the violent invasions of a radical movement called MST (Landless Movement).
One needs to remind in this case that the congressman who drafted and proposed the gun-control legislation, PT Deputy Luiz Eduardo Greenhalg, is also a lawyer for the MST.
On May 28, 2004, the President of the Prospectors Union in Rondônia, in northern Brazil, appeared before the Chamber of Deputies to report the missing of 350 colleagues in the Cintas-Larga reserve.
A court judge, Leonel Pereira da Rocha, was also invited and let the federal deputies fully informed that Cintas-Larga Indians were heavily armed and had already assassinated at least 65 people between January 2001 and May 2004.
According to him, there was even a clandestine cemetery in that indigenous reserve, where not less than 100 corpses are buried. Finally, the judge revealed that local courts are facing problems to execute warrants and interrogate criminal suspects, because, as he put it, “the National Indian Foundation (Funai) has gotten in the way of investigations”.(3)
(1) Organization of American States; Report on the Situation of Human Rights in Brazil. Organization of American States, 1997. http://www.cidh.oas.org/countryrep/brazil-eng/index%20-%20brazil.htm
(2) Valenta, Lisa; Disconnect: The 1988 Brazilian Constitution, Customary International Law, and Indigenous Land Rights in Northern Brazil. 38 Texas International Law 643, 2003, p.657.
(3) Vasconcelos, Luciana; Brazil and Amnesty Clash. Brazzil, Human Rights, May 2004. https://www.brazzil.com/content/view/1827/59/
Augusto Zimmermann is a Brazilian Law Professor and PhD candidate for Monash University – Faculty of Law, in Australia. The topic of his research is the (un)rule of law and legal culture in Brazil. He holds a LL.B and a LL.M (Hons.) from the Pontifical Catholic University of Rio de Janeiro, and is the author of two well-known law books (“Teoria Geral do Federalismo Democrático” and “Curso de Direito Constitucional”). His e-mail is: email@example.com