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WORLDWIDE FOREST/BIODIVERSITY CAMPAIGN NEWS

ACTION ALERT-->Brazilian Indigenous Land Rights Under Assault

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Forest Networking a Project of Ecological Enterprises

June 11, 1995

OVERVIEW & SOURCE

Following you will find an urgent appeal from COMIN, a Brazilian

indigenous organization, asking for international pressure to

press the Brazilian government to stop dragging their feet on the

demarcation of Indigenous Territory (abbreviated herein as TI).

Specifically, the Rights of Indigenous Peoples, guaranteed by the

Federal Constitution of 1988, are being abridged through a

proposed decree to allow increased judicial appeals for invaders

of indigenous lands. These lands have long been known to belong

to indigenous peoples; and this legal ploy is more aimed at

halting, or greatly reducing the extent of, a more rigourous legal

demarcation of indigenous territory. Amazingly, this new appeals

process is to be enacted retroactively, threatening the size

and/or existence of 189 indigenous territories that have already

been demarcated in Brazil. There are two excellent sample letters

at the end which we appeal to you to take the time to expand upon

and send. This item was posted in econet's env.letters

conference.

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/* Written 8:22 PM Jun 11, 1995 by gn:earthrite in

igc:env.letters */

/* ---------- "Land Rights URGENT need to write." ---------- */

Subject: Campaign in favor of the rights of indigenouspeoples

Sao Leopoldo, June 7th, 1995

**Campaign of political pressure/lobbying in favor of the Rights

of Indigenous Peoples**

Dear Friends!

Enclosed you will find a Report by the Judicial Counceling

Committee of COMIN and a proposal of two model letters, inviting

you to join the campaign in favor of Indigenous Rights which we

are forwarding to the Federal Government.

The two model letters were discussed and approved unanimously by

COMIN's Council, in a meeting on the 2nd and 3rd of June, 1995.

We plead you to participate in this campaign by inviting other

entities and people to voice themselves, as soon as possible, in

favor of the maintenance of Decree 22/91, by mailing letters, fax,

etc., to the addressees and addresses enclosed or to the

Brazilian's embassy in your land. In order to engage in our

campaign, you may use our model letters.

The Rights of Indigenous Peoples, guaranteed by the Federal

Constitution of 1988, are being seriously threatened through a

malicious and interested interpretation of the Constitution. If it

is the pressure/lobbying of political interests what lead to this

sort of interpretation, let us pressure governmental officials to

favor those who hardly have representatives in the National House

of Congress.

Fraternally,

Arteno I. Spellmeier

REPORT BY THE JUDICIAL COUNSELING COMMITTEE OF COMIN

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Fellow Friends,

Last March we have sent you a letter analyzing the political

agenda of Indigenous Affairs by the Brazilian State (Executive,

Legislative and Judiciary) and calling attention to the mounting

dangers against the Indigenous Peoples in the horizon of our new

government. Currently the situation has worsened even more.

Through its Secretary of Justice, Nelson Jobim, Fernando Henrique

Cardoso's (FHC) Government is imposing, not to say "shoveling down

the throat" of Indigenous Peoples and its agencies of support, a

great deal of changes in precisely those laws that guarantee the

Indians their minimum rights. The government does not want to stop

the process of inserting a CONTRADITORIO (a Counter Decree), that

is, an amendment to Decree 22/91. This decree determines and

supervises the demarcation of Indigenous land-TI (Indigenous

Territory) in Brazil. Jobim says that this decree is

unconstitutional, since it does not give the invaders/squatters

their lawful right to defend and contest the demarcation of the

TIs.

In addition to not having demarcated any TI up to this point and

not having taken any measures to obstruct or impede new invasions

of these lands, FHC wants to guarantee, by means of this Counter

Decree, further rights to the invaders/squatters. Those invaders,

if the government is able to impose such alterations in the

legislation, will now have ample possibilities of contesting the

Indians' right to their land. Not even during the dictatorship

have military governments acted this way. FHC and Jobim have

been giving in to the pressures of economical and political

groups, notably those of PFL (a right wing party), which overtly

preaches the decrease of TIs and the restriction of the Indians

constitutional rights. Parliamentary representatives of the Amazon

Region, which are part of the "bancada amazonica", want to assure

the drastic decrease of TIs, especially of the Yanomami, and the

prohibition of TI demarcation along the boarders, and they are

lobbying strongly with the government. FHC is willing to

introduce, by means of Decree, the following alterations/

changes in Decree 22:

1- Anyone interested in TI (squatters, farmers, landowners,

lumberyard owners, miners, state and municipal governments), will

have 90 days in order to file any complaints and/or contest the

demarcation of a TI. In order to file such complaints, it will be

necessary that they present FUNAI (Official Organ responsible for

Indigenous Affairs), with reports, proofs, witnesses, to argue

that they have right over such land, or to affirm and prove that

such land is not even considered Indigenous Territory.

2- FUNAI will then analyze these contestatory complaints and will

send the process over to the Secretary of Justice, who will then

decide whether the land will stay as it is, if it will be cut down

in size, or if the given portion of land is in fact not a TI; in

such case it will not be demarcated.

3- The worst, however, will be that the government wants to extend

this procedure to all TIs, which have already been demarcated and

approved by the Presiddent of Brazil--i.e., 189 TIs. The only TIs

which will not be revised are those which have already been

notarized officicially at the Service for patrimony of the Union.

This will create a real chaos and will allow that any TI, even

those which have been demarcated long ago, to be decreased in

size, in case the squatters and invaders are able to convince

Secretary Jobim. This will not be difficult, since this is

precisely what these new amendments/counter decrees are meant to

do. The government and the invaders want, and will now guarantee,

a legal way of dimishing legal Indian Territory. These are laws

that favor the powerful and go against the rights of the

Indigenous Peoples.

What worsens the situation even further is the fact that the

Supreme Court of Justice (STF) is ruling whether Decree 22 is

constitutional or not, based on the same presupposition that TI

invaders have not had the right to a Counter Decree, to ample

defense, and that they have lost "their goods/properties" without

a right to appeal, all of which is likewise guaranteed by the

Federal Constitution of 1988, Article 5, LIV and LV. This is the

same fallacy which is being used by Secretary Jobim.

But Decree 22 is not unconstitutional. What is taking place is a

malicious distortion of facts. Brazilian laws have always

recognized the original right of Indians over their land. TIs

belong to Indians even when the land has not yet been recognized

and/or demarcated by the State. Decree 22 does not give or create

the rights Indians have over their land. This is an innate right,

a right of origin, and it is a right that precedes the formation

of the Brazilian Nation State. This decree only determines how the

State should demarcate the TIs and how it should remove its

invaders. It strictly obeys what is stated on Constitution of

1988 (CF/88), on article 231, and what, for centuries, other laws

and Brazilian Constitutions have established. Therefore, Decree 22

also does not wave the right of anyone contesting TI land, because

in front of such original Rights, it is not possible for any

other right to exist. The understanding of CF/88 is correct when

it states that any title (any right) that coincides with a TI is

NULL, and that the contestant only has rights to compensation of

property and material improvement built on the property when

whenever done in good fatih, that is, whenever something was built

when the person did not know it was TI. Therefore, Dec.22 is

constitutional. UNCONSTITUTIONAL is in fact what FHC, Jobim, and

STF are willing to accomplish.

It is against this additional blow against Indigenous Rights that

we have to protest and fight. Indigenous communities and

organizations have already stated that they do not accept any

changes in those laws. It is necessary that we all urgently write

to the government of FHC and to the Secretary of Justice,

requiring the maintenace of Dec. 22 so that the demarcation of TIs

and the expulsion of land invaders resume immediately.

Below are suggestions of letters and addresses to forward our

protest.

SUPREMO TRIBUNAL FEDERAL

Ministro Sepulveda Pertence

Praca dos Tres Poderes

BRASILIA - DF - BRAZIL

FAX 0055 61 2264797

Dear Secretary,

The original rights of Indigenous Peoples to their lands not only

were destroyed and deferred by the violence of invasions and

property spoliation. They were also imposed by immoral laws and

court decisions that rather favor the invaders' interests.

The decision to rule Decree 22/91 to be unconstitutional will

certainly be one among many such acts of violence which our

History records against Indigenous poeples in Brazil. To amend a

Counter Decree (Contraditorio) in the administrative proceedings

of Indigenous land demarcation is - besides being an

unconstitutional - an act of delay and immorality, which will give

more rights to secular invaders and destroyers of Indigenous lands

and peoples.

In addition, it is worth noting that the Brazilian Nation State

was unable to meet, twice already, the pre-established dates of

Indigenous land demarcation as foreseen by Law 6.001/73 and by the

Federal Constitution of 1988. The failure on the part of the

government only signals its alignment and connivance with such

acts of destruction.

We hereby appeal to this Court for the restoration of such Right,

in the ruling for the maintenance of Decree 22/91 and for

determining that the Executive power may meet its obligations in

guaranteeing the Indigenous Rights.

Exmo. Sr. Exmo. Sr.

Presidente da Repzblica Ministro da Justica

Fernando Henrique Cardoso Nelson Jobim

Palacio do Planalto Esplanada dos Ministerios

BRASILIA - DF - BRAZIL BRASILIA - DF - BRAZIL

FAX 0055 61 226 7566 FAX 0055 61 224 2448

Mr. President!

Secretary of Justice!

We hereby plead your Excellency to take urgent and concrete

measures to guarantee the constitutional rights of the Indigenous

Communities in Brazil.

In spite of an official plan of land demarcation and the expulsion

of land invaders, nothing in this respect has been done up to the

moment.

On the contrary, closely following the political agenda in regards

to Indigenous Affairs, we have noticed that your government is

rather hindering the fulfillment of such rights and decrees. The

alteration of Decree 22/91 will represent a serious obstruction to

the demarcation of Indigenous land.

Once again it is noticeable that what is really being pursued is

the right of the land invaders, squatters, farmers, miners as well

as municipal and state governments, and lumberyard owners. The

insertion of a Counter Decree in the administrative process of

land demarcation, besides being unconstitutional, is also an

immoral and obstructive act, which will give further rights to

invaders and destroyers of the lands that rightfully belong to the

Indigenous Peoples of Brazil. This will entail horrid consequences

and stain the image of Brazil before the International Community.

It is therefore imperative that Decree 22/91 be followed as has

been established by this government, without allowing any

alterations, as the only possible way to guarantee the rights of

the Indians to their lands, in order to cease the aggression to

which these Indigenous Communities are still being submitted.

Campaign of political pressure/lobbying in favor of the Rights of

Indigenous

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You are encouraged to utilize this information for personal

campaign use; including writing letters, organizing campaigns and

forwarding. All efforts are made to provide accurate, timely

pieces; though ultimate responsibility for verifying all

information rests with the reader. Check out our Gaia Forest

Conservation Archives at URL=

http://forests.lic.wisc.edu/forests/gaia.html

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Email (best way to contact)-> gbarry@forests.org

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