1. CHAPTER 1: REVIEWING THE LITERATURE: FOUR CONTEXTUAL
2.2. Brazil’s demarcation of traditionally occupied lands policy
Indigenous lands (Terras Indígenas or “Tis”, following its acronym in Portuguese) are portions of the national territory owned by the Union and inhabited by one or more indigenous groups. They use them for the development of their activities and cultural, material, symbolic and religious reproduction according to their uses, customs, and traditions.
In accordance with the Indian Statute, the TIs are classified in the following ways: 1) Traditionally Occupied Indigenous Lands; 2) Indigenous Reserves; 3) Domain Lands; 4) Restricted Areas. The Conselho Indigenista Missionário (2012) has monitored the process of regularization of Indigenous land tenure in Brazil since 1990, accounting for a total of 1045 of these territories (whether they are in a regular situation, in the process of regularization or simply claimed by Indigenous peoples, without any action being taken as the date of the report).
With regard to the absolute number and the average number of homologation of these territories in the post-dictatorial presidential mandates, the data available are: José Sarney homologated 67 Indigenous lands, with an average of 13 per mandate year; Fernando Collor de Melo 112, with an average of 56; Itamar Franco 18, with an average of 9; Fernando Henrique Cardoso 145, with an average of 18;
Luiz Inácio Lula da Silva homologated 79 lands, with an average of 10; Dilma Rousseff, finally, approved in 2011-2012 a total of 10 lands, with an average of 05
per year. According to the mentioned report, 644 lands are awaiting the beginning or the end of the land regularization process.
The Figures 17 and 18 below shows respectively the number of demarcations per year between 1983 and 2013 and the size of the areas demarcated during the period following FUNAI’s official data76. It is beyond the scope of this dissertation to explain the reasons that may explain the two big “cycles of demarcation” in Brazil in 1992 and 1998 and the decreasing number and size of recognized lands over the period. However, some conclusions may be worth drawing from the Figures.
First, the overall progression of the demarcations over time can be fairly described as being constantly low over time, a pattern broken by few moments where the government is more active. The outlier is the Collor government, when he demarcated not the greatest number of Tis ever, but also the largest ones. Except for this aberrant period, the Brazilian Indigenous Land Claims Policy has been effective, although inefficient.
Figure 17: Number of Indigenous Lands Demarcations in Brazil per year between 1981-2013. Source : FUNAI, elaborated by the author.
76 This data was requested and obtained through the Lei de Acesso à Informação ( Information Access Act, in a free translation).
3 17
7 4 2 6 10 1 6 8
102
9 123 8 37
22 39
0 11
21
0 2422
7 106 1 8
3 3 6 1 0
20 40 60 80 100 120
1975 1980 1985 1990 1995 2000 2005 2010 2015
Figure 18: Size of demarcated Indigenous Lands in Brazil between 1981- 2013. Source: FUNAI, elaborated by the author
Second, one of the reasons that may explain the low level of demarcations before 1991 is the relative dispersion of the legislation regarding the land claims process. Remember that the Federal Law 6001/1973 affirmed the existence of the Indigenous Lands in many categories and ruled that Indigenous groups were entitled to their traditional lands after the due process carried out by the FUNAI. This provision was only regulated by the Decree 76.999/1976. Subsequent legislation – notably the Decrees 88.118/1983 and 94.945/1987 were enacted to restrain the demarcation process, adding more stages to it and including more institutional actors with veto powers in the chain of events needed to conclude the demarcations.
The Decree 22/1991 brought clarity to the demarcation process, compiled the previous legislation, further described some legal dispositive and eliminated the existence of the “Grupão”, considered an heritage of the military rule. Unsurprisingly, the number of demarcations after this enactment has risen enormously.
This general legal framework has slightly changed since 1991. A new decree, nº1775, was enacted in 1996 and has amalgamated all the rules in previous decrees into one single decree. An administrative act of the Ministry of Justice in 1996 has set out a clear guideline for the report elaboration by the workgroup. Without any revolutionary policy innovation or institutional device, both legislations kept all the
18,417,337.2636
15,975,664.0152
9,928,682.8574
6,316,173.7494
5,121,311.1700
0.0000 2,000,000.0000 4,000,000.0000 6,000,000.0000 8,000,000.0000 10,000,000.0000 12,000,000.0000 14,000,000.0000 16,000,000.0000 18,000,000.0000 20,000,000.0000
1975 1980 1985 1990 1995 2000 2005 2010 2015
main provisions of the Decree 22/1991. The Table 6 and 7 below show respectively the legislation regarding land demarcations before and after 1991.
Table 6: Brazilian Land claims recognition process legislation before 1991 Decree 76.999
1976
Rules the administrative process of land claims recognition
Decree 88.118 1983
Introduces a Working group composed of several ministries and agencies in the
administrative process of land claims recognition
Decree 94.945 1987
Rules the administrative process of land claims recognition including the possibility of
re-examination of native lands, the recognition of lands on international borders
and the inclusion of the National Security Council on the Workgroup
Source: Elaborated by the author
Table 7: Contemporary Brazilian land claims recognition process legislation after 1991
Decree 22 1991
Rules the administrative process of land claims recognition stating, for the first time, the requirement of
Indigenous participation in all its stages Decree 1775/
1996 Rules the process of land claims recognition Administrative Act of the
Ministry of Justice nº 14 1996
Rules the formulation of the final report of the land claims recognition process
Source: Elaborated by the author
In the next session, we will understand how the legislation and its successive modifications over time have framed the stages of the Administrative Land Claim Process in Brazil over the last four decades.
Stages of the Administrative Land Claims Process in Brazil
The stages of the administrative native land claim demarcation in Brazil has not changed very much over the last four decades. It is composed basically of four steps77, described below:
a) The working group formation: this provision, first introduced by decree nº 76.999/1976 and ratified by the following decrees, states that the FUNAI’s president may start up the process by establishing a workgroup composed of “experts”, comprising of an anthropologist and an engineer surveyor, but later, after the Decree 94.945/1987, opened to allow other officials to participate, mainly officials of state agencies related to land issues, if the FUNAI considered it necessary. According to this legislation, an official representing the General-Secretary of the National Security Council would be part of the working group if the land to be demarcated is situated near international borders, a provision inexistent on the 1991 legislation. After the latter, the group could invite other members of the scientific community to contribute to the report.
This group is in charge of ensuring the antiquity of the Indigenous occupation in a particular area, collecting evidence from archaeological and anthropological research;
b) The field work and report writing: once in the field, the working group proceeds to gather as much information as possible about the Indigenous group. Description of the burial grounds, religious ceremonies, the number of men, women, elders and children, information about the economic activities and political structures, among others. In sum, the report must contain substantial information about the Indigenous group claimant. This report is the “technical” base upon which decision-makers will eventually rely on to make judgments and to push the process forward. The centrality of the “expert report” is a constant in Indigenous legislation since 1976 and is still in effect today;
77 The legal process actually consists of seven stages, as Baines (2014) notes, but we have opted to present them in a more concise fashion.
c) Report submission: the report made by the working group was supposed to be submitted only to the FUNAI’s president in the decree nº 76.999/1976.After his approval, it would go directly for presidential approval. This lack of “intermediates” was “solved” by the provision introduced by the Decree 88.118/1983, when the report should be submitted to a workgroup composed of officials of the Ministry of Interior, Extraordinary Ministry for Land Regularization and the FUNAI itself. Only after approval by this group, the president could further analyze the process78. This control by a strong bureaucracy was further entrenched by the Decree 94.945/1987. This working group was composed of two representatives of the Ministry of Interior, one of which would be the group coordinator; and one representative of the Ministries of Agrarian Reform and Development, General-Secretary of the National Security Council, FUNAI, National Institute of Colonization and Agrarian Reform and state-level agencies related to the issue.
Other members of government agencies could be invited to participate in a specific process. After the 1991’s legislation, the aforementioned councils are no longer in effect, and the submission of the report is made first to the FUNAI’s president, who then presents it to the Ministry of Justice.
d) Approval of the demarcation and homologation by presidential decree:
the 1976’s decree was clear in stating that, after the approval of the report by the FUNAI’s president, the republic’s president would confirm this fact through a homologation decree. Following this, there would be the registering of the land at the Union’s Secretary of the Patrimony.
This provision has not been changed by the decree of 1983.
Notwithstanding, the 1987’s decree has introduced the possibility of redrafting the expert report and thus starting off the process from the very beginning. The 1991’s legislation kept this possibility but presented the possibility the re-examining the area to be demarcated to assure
78 The establishment of this Work Group, also known as “Grupão” (big group), was considered a disaster regarding the effectivity of the demarcation of Indigenous lands during the period of its existence. Oliveira Filho and Almeida (1984) are incisive on their judgement that it should be simply extinguished.
that it is enough for the social and economic reproduction of the Indigenous groups. The point is that the final stage of the land claims demarcation policy is the ratification of the entire process by the president and requires the appropriate administrative measures to register it.
The land claims recognition policy in Brazil has developed over the last thirty years without major shifts of course. Even though one could easily see the progressive complexification of the claims in a bureaucratic environment as more and more hostile, the general guidelines of this policy were somehow constant over time.
Not surprisingly, the policy has accumulated a substantial number of critics derived from the general perception that, although being able to accomplish some important goals, it is far from being satisfactory, for Indigenous groups, activists, national citizens and even for government agents.
Conclusion: The general trend of the Indigenous policy in Brazil
Although systematically disrespected, the legal provision of Indigenous rights over traditional lands appears in the Brazilian juridical landscape at least since 1609.
The right of inalienable possession of lands is constitutionally protected since 1934 and repeatedly reinforced in all following constitutions (CUNHA, 2009).
We agree with Perrone-Moisés’s (1992) perspective that it is important to overcome an interpretation of the colonial era as a period purely driven by colonizers, without considering the role played by Indigenous groups. The history of the strategies of resistance and adaptation to a new and hostile environment is yet to be told, considering that different Indigenous groups had different forms of interaction, and, consequently, reacted differently to the challenges they faced across the centuries. In other words, it is important to consider the active role of native groups during the process of colonization, without losing sight that, at the end of the day, the balance of power was undoubtedly pending towards the settler society or the colonizer.
One could straightforwardly say that there is a consensus among scholars that the tutelary power is at the core of the Indigenous policy in Brazil, meaning that despite the constitutional progress of the last thirty years, Indigenous peoples in
Brazil are still considered, in practice, wards of the state. In this sense, as Ramos (2012a, p.31, translated by the author) says,
[…] the Indigenous question, as a powerful spotlight, exposes the imperfections of the Brazilian ethos intimacy without the generosity of any makeup. If it is there any softness in the tutelary way the State treats citizens in general, it disappears when the subjects are Indigenous. The Indians are the prototype of the tutelary object by the State and by the nation.
The implications for this are that the debate about political autonomy and self- governance is blocked at the level of the Brazilian public sphere. The very fact that Indigenous groups in Brazil have opted to call themselves “peoples” – the major Brazilian Indigenous organizations is the Articulação dos Povos Indígenas do Brasil (Brazilian Indigenous Peoples Articulation) - instead of “nations” is telling about the complexities around the Indigenous issue in this country. Fears of separatism or the eventual “manipulation” of Indigenous groups by foreign powers to facilitate taking over the Amazonian forest are common sense during the twentieth century and beginning of the twenty-first (RAMOS, 1993; MARCHINI, 2011).
As we will see, the tutelary form of dealing with Indigenous groups is not a prerogative of the Brazilian state but, rather, seems to be a historical constant across distinct cultural and political contexts.