After decades of struggle for recognition, indigenous peoples’ in Brazil achieved in 1988 what seemed impossible—the guarantee of their rights in the country’s constitution. When the indigenous rights movement gained greater international recognition in 1994 with the declaration of the International Decade of the World’s Indigenous People, many of Brazil's indigenous peoples hoped that the rights guaranteed in this constitution—rights to land and cultural security—would be enforced through legislation. While the constitutional recognition served as a model for indigenous movements around the world, the indigenous peoples of Brazil have been sorely disappointed.
Legislation that contradicts the constitution has never been revised, and new legislation to enforce these constitutional rights has not passed. In fact, in the last 10 years multiple pieces of legislation that undermine indigenous peoples rights have been passed—particularly in the area of land demarcation.
Brazil has a complex history of oppressing its indigenous population. When the Portuguese arrived on April 22, 1500, there were an estimated 3 million to 5 million indigenous people in Brazil, comprising approximately 1,000 different tribes. Today there are 350,000 people left in 217 tribes representing about 0.2 percent of the population of Brazil. Indigenous peoples occupy 614 territories covering about 106 million hectares, or roughly 12 percent of Brazil’s landmass. Yet only 344 of these territories are fully registered as protected by the government, having gone through the complex and lengthy demarcation process of registration. Even those that are protected are subject to miners, loggers, and poachers who illegally enter and deplete the area of natural resources.
Today, indigenous groups are seeking protection for their land and cultures in a turbulent climate. Populist President Luiz Inácio Lula da Silva came to office in January 2003 with overwhelming foreign debt and pressures from the International Monetary Fund and World Bank to cut social services. Meanwhile, he has been trying to deliver on his campaign pledge to reduce the poverty of the 50 million poor people in Brazil. Amid these competing demands, indigenous groups have been overlooked.
The 1988 Constitution and the Indian Statute of 1973
Under Article 231 of the 1988 constitution, the Brazilian government acknowledges that indigenous peoples are the original inhabitants of Brazil, and therefore have the right to pursue their own cultural lifestyle without pressure to assimilate. In the last decade, however, it became evident that pressures from elite businesses and land owners would prevent indigenous rights from materializing through policy and legal change.
Government policy and legislation to enact rights given in the 1988 constitution has been less than proactive. The Brazilian Constitution functions only as a framework for overarching principles and rights, relying on other pieces of legislation enacted by the government to lay out the finer details of implementing these rights. But these pieces of legislation have not been enacted. Following the 1988 constitutional guarantees, the government has had a noticeable hands-off policy regarding the implementation of indigenous rights—leaving indigenous peoples to struggle for changes in policy and centuries-old patterns of discrimination within society and government.
The most offensive of these policies and laws is the notion of tutelage upheld and outlined by the Indian Statute of 1973 (Law 6001/73). This statute, which defines the details of indigenous policy, contradicts the rights given to indigenous peoples in the 1988 constitution. But, because it has never been replaced or revised, it has become the fallback for indigenous policy.
Tutelage, or guardianship, considers indigenous peoples to be incompetent and needy of the government's protection for their survival. While the 1988 constitution recognizes indigenous peoples as the original inhabitants of Brazil and recognizes their cultural and land rights, the Indian Statute of 1973, which dictates the organizational structure of the federal indigenous protection agency FUNAI and other aspects of indigenous policy, treats indigenous peoples as wards of the state who cannot fend for themselves.
According to the statute, tribes must get permission from FUNAI for everything from constructing roads, to selling mahogany seeds gathered in the forest, to importing cattle onto their land. Funds from the sales of forest produce or development project reimbursements are kept in accounts controlled by FUNAI. In almost every aspect of the policy, indigenous people are treated as if they are incapable of making choices to determine their own future.
The constitution itself is a lengthy document with internal contradictions regarding land use by indigenous groups. In addition, by defining indigenous policy in terms of “rights” without supporting legislation to implement those rights, the 1988 Constitution is a weak document for the protection of indigenous peoples of Brazil, giving a surface vaneer of empowerment without real content. This legal vacuum has created space for argument and jeopardizes indigenous control of their territories, their identities, and their futures.
Elite Pressures and Decree 1775
While land security is vital to indigenous peoples in Brazil, it is also of great interest to businesses and prospectors. Article 20 of the constitution gives the Brazilian government charge over indigenous lands in order to protect indigenous interests. The government is therefore required by the constitution to make the territorial boundaries of these lands known, to defend the boundaries, and to uphold the cultures of the indigenous groups who live within them. The 1988 constitution calls for the federal government and FUNAI, to have demarcated indigenous territories by 1993. This goal has still not been reached.
Perhaps one of the greatest controversies in Brazil surrounding constitutionally guaranteed indigenous rights was the 1996 passage of Presidential Decree 1775. Article 5 of the constitution guarantees that the courts grant due process to any party concerning "judiciary or administrative procedures," including indigenous territorial demarcation. Elite groups within Brazil, such as multinational corporations, local landowners, ranchers, mining and logging corporations, and other powerful market groups, have been the largest competitors for indigenous land. In the mid-1990s several cases came before the Supreme Court questioning the legality of indigenous land demarcation without due process. The claimant parties—cattle ranchers and other landowners—argued that the demarcations should be annulled because they were not given the opportunity to defend their interests in the land before a court. In 1996 the government answered this question with Decree 1775, stating that any party wishing to contest the demarcation of indigenous lands could to do so up to 90 days after that territory had been reviewed by FUNAI and published in the Union's Official Journal. The decree was retroactive to all lands that had been reviewed previously but were not yet through the full demarcation process.
The decree put 125 million acres of undemarcated land at risk, and ultimately led to more than 1,000 retroactive claims by corporations, landowners, and government entities such as the Brazilian Environmental Protection Agency and the government of the state of Rondonia. Most of the retroactive claims were dismissed as invalid but a few led to lengthy court proceedings in which indigenous peoples had little voice.
The demarcation process as dictated by Decree 1775 is a time-consuming commitment and is fraught with opportunities for non-indigenous parties with competing claims to derail the demarcation. The process involves several Brazilian ministries and departments, and requires hundreds of hours of labor by staff of the underfunded and understaffed FUNAI in the isolated jungles to review border claims.
The entire demarcation process only includes indigenous input in the first of the six steps, when indigenous peoples make claims to the FUNAI border reviewers stating how and why an area of land is their native territory. Furthermore, indigenous peoples are not invited to court hearings in which landowners or corporations protest indigenous land borders under Decree 1775. This bias further demonstrates the harm of the tutelage concept, which sees indigenous peoples as incapable of participating in the legal system.
Decree 1775 also makes FUNAI subject to partisan politics and pressures. With the passage of Decree 1775, former President Fernando Henrique Cordoso demonstrated the government's vulnerability to elite landowners and corporate interests. In addition, the decree put FUNAI under the control of the Brazilian Ministry of Justice, a government branch that historically has supported business interests.
The Future of Brazil's Indigenous Movement
The neglect of the 1988 constitutional rights as a result of the unrevised Indian Statute and laws such as Decree 1775 has been a great letdown from the hope Brazil’s indigenous peoples held 10 years ago.
The most pressing need for revised legislation is a new law to replace the Indian Statute. Deputy Luciano Pizzato proposed such a law in 1991 (Law Project 2057/91), but due to political pressures it was never reviewed by Congress. When it was reintroduced in 1994 its passage was blocked once more and the proposal died.
In April 2001 a proposed Statute of Indian Societies was submitted to the national Congress with more than 90,000 signatures from indigenous peoples and their supporters from around the world. This proposal is similar to Law Project 2057/91, with a few important changes. From 1994 to 2001 many indigenous groups were given a chance to review and comment on the proposed statute, with the help of advocacy groups and political allies. These formal and information review sessions, organized by indigenous organizations and advocacy groups such as the Pro-Yanomami Commission and the Missionary Indigenist Council, and government agencies such as FUNAI, allowed indigenous peoples to comment on the statute's proposals and offer their advice for amendments. These review sessions were essential in creating large-scale indigenous buy-in and support for the proposed law.
Despite this increased consultation with indigenous groups, Congress has yet to review the proposed law. Various advocacy groups are currently proposing further reforms to try and take advantage of the new administration under da Silva. In a meeting in January 2003 with da Silva and the Brazilian Ministry of Justice, the Missionary Indigenist Council proposed the creation of an Indigenous Political Council and a Conference of Indigenous Peoples as provisory measures until FUNAI is reformed. While this suggestion was received well by officials from the president's administration, there is little evidence of action toward creating such a council. Despite the president's sympathy toward the plight of indigenous peoples, his administration has become mired in the economic chaos of Brazil and pressures from unions and 50 million impoverished people.
While the neglect of indigenous issues has frustrated the indigenous movement in some ways it has also stimulated new coalitions and indigenous-led organizations and efforts, leading to the development of indigenous leaders within the movement.
A new body was created in June to push indigenous issues more to the forefront of the political arena to take advantage of the progressive da Silva administration, including the pressing issues of health, land demarcation, and mining of indigenous lands. This body—the Forum for the Defense of Indigenous Rights—is composed of several coalitions and indigenous-led groups including the Coordination of the Indigenous Organizations of the Brazilian Amazonia, the Brazilian Anthropology Association, the Pro-Yanomami Commission, the Center of Indigenist Work, the Missionary Indigenist Council, and the Instituto Socioambiental (ISA). Several government bodies and individuals have also been involved in the creation of the forum, including Federal Prosecutor of the Republic Cláudio Fonteles, Assistant Federal Prosecutor of the Republic and coordinator of the Federal Prosecutor's Office's 6th Chamber of Coordination and Revision of Indigenous Communities and Minorities Débora Duprat, and Representative Eduardo Valverde, of the Parliamentary Front for the Defense of Indigenous Rights.
"ISA's expectation regarding the forum is that it will open a consistent channel for a dialogue with the current administration, which, after a year and a half, still does not have an Indian policy," pointed out Márcio Santilli, a member of the Instituto Socioambiental's board of directors, in an article on the organization’s website.
Pressures from elitist groups, global economic forces, and the overwhelming presence of poverty throughout the country have put indigenous rights on the backburner of Brazilian political life, yet the last decade has seen advances. The constitutional guarantees have given indigenous peoples a platform for their demands in policy and legislative change. While the government's hands-off policy toward indigenous issues may seem like a negative development, it has increased cooperation among indigenous groups and organizations, leading to a more cohesive indigenous movement and the creation of forums such as the one recently formed. All of these components are necessary for real change and the empowerment of indigenous peoples. And while constitutional rights have only taken Brazil's indigenous peoples through the first step—legal recognition of their right to existence—the unity built during the past decade has equipped the indigenous movement of Brazil to demand further legislation to implement these constitutional rights and guarantee the cultural and land security of their future.
The International Decade did see the fruition of indigenous rights guaranteed on paper. But the end of the decade should not signify the end of indigenous advocacy. Perhaps the next decade should be termed the "Decade of Implementing Indigenous Rights." After all, rights mean little without legislative implementation and institutional policy change.
Sara Johnson-Steffey, a former Cultural Survival staff member, has a master’s degree in sustainable international development from the Heller School at Brandeis University and has spent several years studying the rights of indigenous peoples in Brazil. She is currently developing a legislative drafting training institute to assist groups like the Jarawara in contributing to legislative change.
