HUMAN RIGHTS OF THE INDIGENOUS PEOPLES IN BRAZIL
A. LEGAL AND HISTORICAL BACKGROUND
1. Approximately 330,000 native Brazilian citizens(1) belong to the 206 peoples who were the original occupants of territory in the Union. Their organizations, life styles and human rights' situations vary. Some of them maintain a self-sufficient forest culture that has minimal contact with the outside world, while others have established close ties with the nonindigenous world through agriculture and other forms of production.
2. The indigenous peoples claim legal rights to 11% of the national territory and have obtained significant recognition of that claim. By far most (approximately 95%) of the indigenous land lies in the Amazon region, where it occupies roughly 18% of the area. About 50% of the Brazilian Indians live there. In contrast, the other 50% of the indigenous peoples live in parts of southern Brazil, on an area that accounts for less than 2% of all indigenous territories.
3. Over the past thirty years, the participation of Brazil's indigenous peoples in political life has increased, --and, as a result, the general recognition of their rights--. Paradoxically, a seminal factor in this process was expansion of the modern economic infrastructure in the interior of Brazil, starting at the end of the Second World War and accelerating in the sixties and seventies under military governments. The response to that expansion, which extended into their ancestral lands, marked the start of widespread mobilization of the indigenous peoples and the organizations which defended them and promoted their rights.(2)
4. As of 1987, the Calha Norte Plan, based on the principle of territorial occupation based on military security precepts, sought to reduce the large and continuous indigenous territories in an attempt to exclude them from a security zone measuring 62 km from the borders; and to emphasize the classification of indigenous into silvicola (forest people) and "acculturated" categories, with different rights specified for each category. The State's obligations with respect to the acculturated class either disappeared or were sharply reduced.
5. Faced with this situation, many Brazilian and international groups supported the Indians' claims, as was evident at the Constitutional Assembly of 1988, in which the discussion shifted from the state forums, where local interests prevailed, to the national level, where the defense of indigenous rights was supported by other large social sectors. Chapter VIII of the Brazilian Constitution of 1988 is devoted to one of the most advanced normative positions in comparative legislation. Its provisions relate directly to the Indians' rights, surpassing the formerly ruling doctrine of "natural assimilation," and grant permanent recognition to the inherent original rights of the indigenous peoples, predicated on their status as the initial historical and permanent occupants of their lands.
6. In its Chapter on Indigenous Rights, the Constitution states that:
Article 231. Recognition is hereby granted to the Indians' social organization, customs, languages, beliefs and traditions and their original rights to the land which they originally occupied, and it shall be the purview of the Union to demarcate those lands and to protect and ensure respect for all of the Indians' possessions.
11 The lands traditionally occupied by the Indians are those on which they have established a permanent residence; those utilized for their productive activities; those essential for preservation of the environmental resources necessary for their well-being, and those needed for their physical and cultural reproduction in accordance with their usages, customs and traditions.
21 The lands traditional occupied by the Indians are earmarked for their permanent possession, and they are entitled to the exclusive usufruct of the resources of the soil, the rivers and the lakes existing on such lands.
31 Utilization of the water resources--including the energy potential, the search for and extraction of mineral resources on indigenous lands--shall be made effective only when authorized by the National Congress, after hearing the communities affected, and those communities shall be assured of participation in the results of such exploitation, in the manner established by law.
41 The lands to which this Article refers are inalienable and not subject to disposal, and the rights to such lands are imprescriptible.
51 The removal of indigenous groups from their lands is prohibited, except by referendum of the National Congress in the event of a catastrophe or epidemic which places their population at risk, or in the interest of the country's sovereignty following the deliberation of the National Congress, and guaranteeing, in any case, the immediate return [of such groups] when the risk is no longer present.
61 Any acts having as a purpose the occupation or domain and possession of the lands referred to in this Article, and the exploitation of the natural resources of the soil, the rivers or lakes existing on such lands shall be null and void and shall produce no juridical effects, except in the relevant public interest of the Union as provided in the complementary law; and such nullity and extinguishment shall not generate a right to indemnification or action against the Union, except in accordance with the law and with respect to the benefits derived from the occupancy [thereof] in good faith.
71 The provisions of Article 174, paragraphs 3 and 4 shall not apply to the indigenous lands.(3)
Article 232. The Indians, their communities and organizations are legitimate parties to action in defense of their rights and interests, and the Office of the Attorney General shall intervene in all phases of the process.
Chapter IX. In regard to general constitutional provisions.
Article 67. The Union shall complete the demarcation of the indigenous lands within a period of five years from the date this Constitution is promulgated. (October 5, 1988)
7. In considering indigenous rights to be "original" rights, the Constitutional Assembly accepted the principle that the Indians were the original owners of the lands and that, as a result, their rights precede any other administrative act carried out by the government. Moreover, the Constitution established that the Office of the Attorney General of the Nation must defend the rights of the indigenous peoples in the courts, and that indigenous groups are themselves entitled to institute judicial action.
8. In principle, it is the federal jurisdiction that adjudicates the rights of the Indians or their communities. Even though the Constitution provides that the federal justice system settles disputes involving Indian interests, a number of interpretations exists with respect to sentencing matters. Accordingly, the state judges retain jurisdiction in cases where the victim or perpetrator is an Indian. Territorial disputes are often confused with criminal acts, and questions of jurisdiction tend to trigger indefinite postponement of decisions. A special unit of the Federal Attorney General's Office--the Agency for Coordination of the Defense of the Rights and Interests of the Indigenous Populations--is given the task of defending these communities. The task of legislating on indigenous rights is the purview of the National Congress, and this includes such sensitive decisions as the authorization to exploit natural resources in indigenous areas; although in many instances, decisions of the state parliaments--for instance, in regard to the creation of new municipalities that are placed within such areas--conflict with that jurisdiction and erode the exclusive federal purview established by the Constitution.
The Regulation of Indigenous Rights
9. Many of these rights stem from regulatory legislation. One that is still in effect is the Statute of the Indian (Law 6,001 of 1973)--which is modeled on the integrationist precepts of ILO Convention 107 and the Brazilian Civil Code of 1916, in addition to other specific legal instruments, such as the law and decree on the demarcation of indigenous lands.
10. Article 3 of the Indian Statute establishes that "any individual of pre-Colombian origin and ancestry who identifies himself and is identified as belonging to an ethnic group whose cultural characteristics distinguish him from the national society is an Indian or a 'Silvicola'" (a denizen of the forest).
11. Indigenous peoples are classified by the Brazilian Civil Code, depending on the extent to which the primitive culture has been modified by a more advanced one, as "silvicolas" or "acculturated." rated procedures. The former (i.e., the forest people) are included in the category of "relative incapacity," along with those in the group of persons 16 to 21 years of age. (Article 6 of the BCC). According to the principle used for such classification, this relative incapacity is a protection, not a restriction. Such legal incapacity does not impede the possession of common rights of ownership, association, transit and the like; and they are protected by a legal presumption. The incapacity is progressively extinguished as the indigenous "forest people" become adapted to the "civilization of the country."
12. The Indian Statute which regulates this incapacity (Law 6,001 of 1973) considers that the Indians are "integrated when they have been incorporated into the national community and are recognized as being entitled to the full exercise of civil rights, even when they retain the practices, customs and traditions characteristic of their culture." In such cases, the relative incapacity befitting a forest people ceases to exist.
13. In turn, Article 4 of the Statute subdivides the indigenous persons into categories: "isolated," "undergoing the process of integration," and "integrated." All of the Indians--be it as individually, as communities or as organizations--may be parties to suits in defense of their rights and interests, and the Attorney General's Office is charged with intervening in all cases in a tutelary capacity. The FUNAI is by law the tutelary representative of the forest people.
14. The Indian Statute includes provisions designed to ensure respect for indigenous values, practices and customs. As an example, it indicates that the formal education of children should be arranged, insofar as possible, without separating them from their families or tribal surroundings. It also establishes that it is a crime against the indigenous culture to utilize the Indian or the indigenous community as an object of tourism advertising, or to exhibit them for purposes of profit (Article 58.1 of the I.S.).
15. During the process of the Indians' integration into the national community, it is up to the Union, the federal states and the municipalities--along with other organs--to respect the cohesion of indigenous communities and their cultural values, traditions, practices and customs (Indian Statute, Art. 2.vi). A provision is made that the Indians should be guaranteed permanent residence in their own habitat, should they choose to remain there, along with the resources for their development and progress (Art.2.v). It is also a crime against the indigenous culture to ridicule a ceremony, rite, practice, custom or traditional indigenous culture, or to vilify and in any way interfere with the practice thereof (Art. 58.1).
16. The Indian Statute of 1973, however, as it stands, contradicts many of the provisions of the 1988 Constitutions. The major difference is that today the integrationist approach that was the spirit behind the 1973 Statute no longer holds. For the Indians and the organizations that supported them, it was a great conquest that the 1988 Constituion did away with the idea of cultural assimilation of Indians. The National Congress now has before it a bill called the Statute of Indigenous Societies that regulates relations between the Indians and the national society as set out in the Constitution.
B. FEDERAL INTERVENTION IN REGARD TO INDIGENOUS PEOPLES. FUNAI
17. The Brazilian State conducts numerous activities to defend and promote the Indians and their rights. The main agency for this purpose is the National Foundation for the Indigenous (FUNAI), which has tutelary jurisdiction over the Indian areas, maintains educational and health care facilities in those areas, and takes part in any legal proceeding in which an Indian or an indigenous community is involved.
18. FUNAI is also the central technical organ involved in the process of demarcating Indian lands and in the mobilization of other organs to carry out the responsibilities of the Brazilian State vis-à-vis the indigenous peoples.
19. In 1996, the Federal Administration launched an important educational initiative in order to dispel preconceived ideas and racism and to ensure that the history and culture of the indigenous peoples would be properly addressed and presented. With the support of the Ministry of Education and Culture, through the Committee on Indigenous Education in Schools, a program to promote and distribute pedagogical teaching material has now been put into effect at the elementary, intermediate and higher levels. It seeks to develop suitable valuation techniques and clarify the knowledge available with respect to Brazil's indigenous peoples for the benefit of every Brazilian student at those school levels.
C. SOCIOECONOMIC AND CULTURAL RIGHTS OF BRAZIL'S INDIGENOUS PEOPLES
20. Brazil's Indians are experiencing a crucial period in their ties with the modern world and the global economic system. In addition to the legal, political and land tenure problems they must face, they are forced to cope with a distinct deficit in terms of sanitation and nutrition.
21. In November of 1995 the "Map of Hunger Among the Indigenous Peoples" that had been jointly produced by the Institute of Socioeconomic Studies, the National Museum in Bahia and the Bank of the Northeast was presented at a public hearing before authorities in the Chamber of Deputies. The study was based on a survey of 297 indigenous areas covering a population of 311,000 Indians. Among other areas in the states of Rondonia, Maranhao and Southern Pará, it included the sphere of influence of the TransAmazonic Railway, the Tucurui Hydroelectric Plant and the "Grande Carajas" Project.
22. According to that study, the situation of the indigenous communities in regard to health care, food, education and, in particular, land property is extremely serious. Problems of food supply were observed in 198 of the 297 areas examined. Of those 198, 102 areas were legally established; 15 had been approved; 30 were defined; and 25 were identified. Almost all of them were experiencing problems of invasion by squatters or intruders; destruction of the environment by such means as pollution from mercury in the waste matter discarded by the "garimpeiros" (prospectors for gold, diamonds, etc.); illegal exploitation of lumber and agriculture; and the inadequate size of their land, which did not suffice for sustenance purposes.(4)
23. Life expectancy for Brazil's Indians is 45.6 years--less than that for the average population.(5) This represents a decline from the rate for 1993, which was 48.3; it also reflects an upturn in epidemiological disease. In the State of Matto Grosso, average life expectancy drops even more, plummeting to 38 years. A FUNAI report cited in this study shows that the principal cause of death over the 1993-94 period was the lack of medical care (22.3%) for cases of preventable and curable diseases--particularly in children.
24. There are still some isolated groups of Indians in Brazil who have not been contacted. In September of 1995, an expert working in the preparation of a major international loan for "the development of natural resources" in Rondonia told government officials that there were no indigenous groups which had not been contacted in Rondonia. Two days later, a FUNAI official made contact with eleven survivors in two villages of the Canoe and Mequens tribes. According to information from the site, ranchers in the region had eliminated most of the members of both groups and destroyed their natural sources of survival in the selva in order to open up the land for cattleraising purposes. There exists evidence pointing to some 22 indigenous groups that are still isolated in Brazil. While most of them live in places that have already been declared indigenous areas, others appear to be in a situation similar to that of the Canoe and Mequens groups cited above.
D. THE INDIGENOUS LANDS
Legal System: Status of Indigenous Rights over Their Lands
25. The indigenous areas in Brazil are the property of the Union, as expressly stated in the Political Constitution (PC Art. 20, XI). As a result, they are subject to federal jurisdiction. At the same time, the Constitution itself recognizes the concept of "original domain" in the rights of the indigenous peoples to the land which they traditionally occupy. In other words, those rights do not stem from an act or grant of the State, but from the historical status of occupancy and ancestral utilization of that land. It also recognizes their permanent possession and exclusive usufruct of the soil, rivers and lakes, plus a share in the benefits received from exploitation of the water and energy resources of the subsoil, but the ownership correspond to the Union.
26. The indigenous areas may be classified as those which are usufructuary ("occupied" areas and "reserved" areas) and those which are truly proprietary, the ones that are fully owned by the individual Indian or the indigenous community.
27. The Indian Statute (I.S. Art. 17) lists the following indigenous areas: l. the lands occupied or inhabited by the aborigines; 2. the reserved areas; and 3. the areas that are the domain of the indigenous communities or aborigines.
The Process of Land Reclamation. Historical Background
28. The soaring demographic and economic expansion to occupy the central territory and Amazon region of Brazil--which started in the 50s and accelerated in the 60s and 70s--had two major effects on the life of the Indians. On the one hand, it gave rise to an effort to clarify the legal situation of lands in the interior, a status that was confused or ambiguous. Spurred by the juridical security required for a modern agricultural economy, that effort helped to accelerate the process of demarcation and titling of indigenous areas. At the same time, it led to the introduction of new and nonindigenous population groups in those areas, destroying the former ecology in order to establish agriculture, stockraising or other exploitations. As a result, the habitat was devastated and, in some cases, so was the very life of many indigenous communities.
The Present Situation
29. The 94,600,000 square hectares (946,000 square kilometers) of indigenous lands in Brazil--most of which are located in the Amazon region--cover an area three times the size of all other classes of nonindigenous protected lands (parks, national forests and extractive reserves).
30. At present, 205 indigenous areas are registered as such in the general or special cadastres (Service of the Union's Patrimony) and they cover some 30 million square hectares (106 million acres) on which the property rights are fully recognized by the law. Another 261 areas, encompassing an additional area of about 32 million hectares (114 million acres), enjoy a certain degree of legal recognition. This is indicative of significant juridical and administrative progress toward such recognition, for when FUNAI was founded in 1967, a bare 10% of those lands were covered by some degree of recognition of indigenous area.
31. Today in July 1997, some 123 indigenous area are in the process of demarcation, which consists of: identification of the area by FUNAI; establishment of its borders by a decree of the Ministry of Justice; physical demarcation; ratification by presidential edict; and registry in the real property cadastral office.(6) The demarcation process for these lands is almost complete, since the only portion remaining without minimal recognition amounts to a only one tenth of the areas that have already been recognized--i.e., demarcation is in progress or has been completed there, or they have already been registered.
32. Between 1990 and 1995, the expanse of indigenous land on which legal documentation had been completed quadrupled, a situation that is indicative not only of the growing political capability of the political organizations working on behalf of the Indians, but also the State's genuine willingness to recognize those rights.
33. But demarcation and legal registry of the indigenous lands is in fact only the first step in the establishment and real defense of those areas. The Indians' ownership and effective possession is constantly being threatened, usurped or eroded by various acts--in particular, by invasion and unlawful intrusion for the purpose of lumbering, mining, or agricultural operations, or for nonindigenous settlements; and also by judicial and political attacks on the permanent status of rights that have already been established, or the consolidation of those in process; and finally, by decisions to establish infrastructure in the form of roads, public works or energy, without the due consent of the indigenous populations affected thereby.
34. Starting in 1993, the courts--especially in the South and in the Northeast--began to issue judgments contrary to the rights of the indigenous peoples. The first verdict of this type was in connection with lands of the Jacares at Sao Domingo in the State of Paraiba, which were adjudicated to a nonindigenous owner who presented titles that had been registered in the early years of the century. A similar case occurred with respect to lands of the Guaranis in the South, which were subject to a suit brought by owners holding titles issued in this century.
35. The legal strategy of the third-party occupants was to attack Decree 22/91--which established the procedures for demarcation and registry of indigenous lands--on the grounds that it did not grant the right of defense to possible occupants or holders of rights in the face of administrative acts of the Government that had recognized the indigenous rights. The right of revision of the administrative acts of a State is set forth in the Brazilian Constitution.
36. To avoid the possibility of such legal challenge, the Government issued Decree 1775/96, which establishes a relatively summary procedure to avoid this putative judicial threat to the juridical clarity of indigenous titles. The decree added a further remedy to the rules that establish the Indians' rights to their lands. This recourse enabled private individuals and local or state government officials to contest the creation or demarcation of indigenous areas by submitting evidence which repudiated the claim of prior occupancy by the Indians, or attested to the rights of third parties over these lands. That decree is applied to all lands, including those recognized by the federation and even demarcated--except for the ones registered as indigenous areas approved by presidential edict(7), except those already registered as Union=s land at the Lands Registry.
37. The decree cited above (No. 1775 of 1996) was denounced as an attack on the inherent rights of the Indians, who had been struggling for decades to have those rights recognized--and in many cases had succeeded in doing so. For its part, the Ministry of Justice maintained that this recourse was necessary to guarantee due process to third parties and government agencies, so that any subsequent recognition of indigenous territories would be immune to unconstitutional remedies; and that this would imbue the process with transparency. The Ministry said that if the Supreme Court found the procedure in Decree 22/91 unconstitutional, the cases presented to its jurisdiction (such as the case of the Jarare Indians), and all of the land that had been demarcated but not registered would be subject to that recourse. Government sources defended the decree, explaining that its merit lay in legitimizing the demarcated areas ratified by that process, thus safeguarding them from future claims from third parties alleging that such demarcation had been unconstitutional, because the right to defend their alleged rights of possession had not been ensured.(8)
38. More than 545 claims to 45 indigenous territories were submitted on time, prior to April 1996 under Decree 1775, and they affected roughly 35% of the lands that had been demarcated or were in the process of demarcation. The greatest number of land claims from nonindigenous persons under Decree 1775 occurred in the State of Roraima. The ones about land in the Indian area of San Marcos alone were the subject of 573 claims. The Legislative Assembly of Roraima itself offered free legal advice to the claimants, and presented its own claim to indigenous lands.
39. In July of 1996, FUNAI finished examining the claims and deciding on the merits thereof. It determined that the claims referred to 42 different indigenous areas and sent its opinion (which rejected the great majority of the claims from other than indigenous persons) to the Ministry of Justice for its decision. The Ministry accepted FUNAI's decisions on 34 of the 42 areas subject to claims and sent back for further analysis those referring to eight areas--including those of the Macuxi in Roraima.
E. DIFFICULTIES IN RECOGNITION AND CONSOLIDATION OF THE INDIGENOUS AREAS
40. The obstacles which thwart firm application of the constitutional and legal precepts regarding indigenous lands appear in various forms.
41. In addition to those noted previously, there are others which deserve mention: a) the establishment of municipalities in indigenous areas as a result of decisions by states; b) the legal difficulties of recovering lands that are illegally occupied by third parties; and c) the introduction of infrastructure (roads, dams, etc.) that destroys and threatens the physical and cultural integrity of the indigenous areas.
The splintering of indigenous lands by new municipalities
42. A new problem which superimposes itself on the lack of demarcation and the invasions of indigenous lands is the creation of the administrative center of the municipalities that lie in part or in their entirety within the lands claimed and/or demarcated as indigenous areas. This results in the establishment of a new jurisdiction, which not only erodes the limited indigenous sovereignty recognized by the Constitution, but also becomes a source of friction between the indigenous authorities and the municipal officials, since the latter are dependent on the state political system. An example of this plight is the creation of two municipalities headquarters in the Raposa/Serra do Sol and San Marcos district within indigenous areas of the Macuxi.
43. The creation of new municipalities in fact serves as a tool for dividing the local indigenous peoples, since it provides a means of attracting or bribing some local leader to take part in the municipal government ignoring the internal structure of the indigenous government, and thus provoking the excision thereof. At the same time, the municipality's structure and its power relations tend to favor the settlement of nonindigenous persons--along with public services and authorities which compete with the ones already provided by or accepted by the indigenous authorities--in those areas.(9)
The legal difficulties met in ousting intrusive occupants
44. Squatters have moved into most of the indigenous areas, be it to grow crops or to raise livestock or to exploit the mineral resources. Such encroachment takes place with the support and connivance of the local civil authorities; and in addition to occupying and using the land unlawfully, the intruders are a source of conflict and armed confrontation.
45. A typical case is that of the Xucurus at Oruguba, in the Pesqueira municipality of the State of Pernambuco, 220 km from Recife. According to the local tradition, its members agreed to fight as members of the Brazilian Army in the Paraguayan War, in exchange for having their lands recognized--which it turned out did not take place. It wasn't until 1992 that President Itamar Franco signed the resolution acknowledging the FUNAI study which found the Xucurús entitled to 26,980 hectares as ancestral land--an area equivalent to one fifth of what they had before the conquest. But in fact, the Indians occupy only 12% of those 26,980 ha. The rest is owned by 281 ranchers and lumbermen, most of whom in turn hire Indian laborers. There are approximately six thousand Xucurús. At present, the land is being demarcated by FUNAI in a climate of general insecurity and with minimal funding.(10)
46. Another typical case of the legal difficulties entailed in guaranteeing indigenous ownership is that of the Guarani-Kiowah people. Their 26,000 members are organized into two large communities in the State of Mato Grosso do Sul. The state has recognized 22 indigenous areas encompassing some 40,000 hectares as belonging to the Guaranis. The areas are heavily overpopulated, and there has been an ongoing series of suicides which in 1995 rose to twice the number of those reported for the preceding year, which in proportion is 30 times greater to the average suicide rate for Brazil's population.(11) A seminal factor in those suicides has been the string of claims from private citizens who obtain judicial support in their quest for title to these lands, despite the fact that the Constitution of 1988 provides that "any other title to indigenous lands must be considered null and void." The lack of legal security triggered by this situation is aggravated by the violent evictions that take place when the Indians reoccupy the lands which have been recognized as belonging to them.
The introduction of physical infrastructure
47. During its visit, the Commission received persistent claims about the entry and passage of local, national and international roadways in indigenous areas.(12) The main complaint is that the construction and presence of these roads bring disease into the region and make it easier for intruders to move into indigenous areas, thereby wreaking adverse effects on their cultural and physical survival. During the Commission's stay in Brazil, it was told of a dispute that arose when Highway BR-174 was being built in the State of Amazonas. The engineering and construction team that was paving the road halted work on the section that crosses a 47 km strip of the Waimiri Atroari Indian reserve until an agreement could be reached between the Indians, FUNAI and the Government of Amazonas.
F. SITUATION OF THE MACUXI PEOPLE IN RORAIMA
48. The Commission had occasion to visit the communities in the Raposa/Serra do Sol area in the northern part of the State of Roraima. Those communities have a total population of about 12,000 persons who live in 97 villages scattered over an area of 1,678,000 hectares which reaches as far as the border with Guyana and Venezuela. The Macuxí leaders claim that in recent years, the efforts made by those communities to have their lands demarcated, plus their opposition to the entry of nonindigenous people, resulted in a campaign of terror against them, allegedly perpetrated by the local ranchers with the support of police and state authorities. The attacks denounced include not only unlawful and violent eviction of Indians from the lands of their ancestors, but also murder, rape, torture and punishment which is generally neither investigated nor made subject to trial.(13) The ancestral lands of the Macuxi, Ingarico, Wapixana, Taurepang and Patamona peoples were identified by FUNAI in May of 1993 (Bulletin No. 9, published in the Official Gazette of the Union on May 21, 1993). That description tallies with the tale told by a consensus of the Indians in regard to the land they occupy.
49. Despite having taken part in the FUNAI identification group, the Government of Roraima presented a protest against that project to the Ministry of Justice. Both the Office of the Attorney General and the FUNAI considered the protest and decided to maintain the demarcation as performed.
50. The demarcation protest was also sent to the Chief of Staff of the Armed Forces, who sided against it because he had understood that "the inhabitants of those border areas must have an even greater civic awareness that other Brazilians, in addition to more deeply rooted patriotic feelings." (Report No. 03157-EMFA). This odd reason for his opposition establishes a grading system in regard to freedom of thought which violates the equality of all citizens, since it is not required of the inhabitants of other nonindigenous border zones as evidence of their entitlement to ownership.
51. The opinion pronounced by the Armed Forces' Chief led the Minister of Justice to turn the matter over to the Federal Attorney General's Office, which in turn decided that it should be sent on to the Military and Foreign Affairs Ministers and the Planning Secretariat. After two years of administrative proceedings, the Ministry of Justice still had not signed Edict of Demarcation. At present, that work is scheduled to be performed along with other items contemplated in the new decree 1775/95 regarding claims of alleged nonindigenous occupants. A total of 46 responses have come from farm owners, a mining company and ther state government. In Decmeber 1996, yielding to pressures from politicians in the state of Roraima, the Ministry of Justice instructed FUNAI to reduce the size of the Indian land. It did not recognize that Indians had permanent possession of five prospecting areas, land estates whose titles had been issued by INCRA (a federal land organ) since 1980 and the roads that cut through the Indian lands, thereby removing approoximately 20% of the area and affecting 20 villages directly. This decision provoked several protests, confirmed the fears of those who opposed Decree 1775/96 who maintained that the decree made it possible to demarcate the Indian land on the basis of political criteria and not technical ones. The matter is not completely over since the Notice of Demarcation has not been signed yet.
52. According to information that was given to the IACHR, some of the area identified as belonging to the Macuxí Indians is occupied by approximately 1,500 garimpeiros (small-scale extractive prospectors) and about a hundred hacienda owners--some of whom have been there since the early years of this century. The conflicts generally arise over disputes between Indians and non-Indians over the use of natural resources--such as rivers, lakes, grazing land, "igarapes" (narrow waterways, used by canoes), "buritizais" (areas covered with wine mauritia or burity palm trees) and others. Over the last seven years, twelve Indians in the Raposa and Serra do Sol area have been killed as a result of such fights.
53. According to a document containing the signatures of 450 members of these communities who had gathered at a General Assembly in Matucura on December 3, 1995 and handed that day to the visiting IACHR delegation, the intruders presented themselves in the guise of friends of the Indians, saying originally that all they wanted was to raise cattle. But then they began to attack the Indians and to keep them from raising livestock, or fishing and hunting in the places where their ancestors had done so. The newcomers also demolished the homes and crops of the indigenous residents. At the same time, the extractive workers brought disease, alcoholism, prostitution, environmental destruction and pollution of the rivers to the indigenous areas.(14)
54. As of 1993, with the intensified activities of FUNAI and the indigenous communities, 62 of the nonindigenous haciendas on land that had been demarcated as indigenous were abandoned by their nonindigenous possessors. The number of indigenous villages in the area experienced a proportional increase, rising from 85 to 95.
55. In August of 1993, residents of the village of Maturuca, with the help of others from the mountainous region, organized a blockade to prevent the access of vehicles carrying fuel and food for the illegal extractive works along the Maun River, located three kilometers from the village. The blockade lasted more than a month and was completely successful, since it managed to persuade 240 garimpeiros--who had been causing extensive damage to the people of Maturuca--to abandon the locale. Some of them, however, continued to work at other sites.
56. In March 1994, indian communities blockaded a road to call public attention to illegal Agarimpo@near Rivers Miau, Cingo and Guino, in the Raposa do Sol area, but were not able to expel the Agarimpeiros@.
57. There are at least 31 claims on the books, relative to Indians who were murdered in Roraima between 1988 and 1994. In the Raposa and Serra do Sol area, there were 12 homicides of Macuxi Indians during that period, but only one person was held for trial. He was absolved for supposedly having acted in self-defense, despite proof that he had shot one of the Indians in the back of the neck. The Indigenous Council of Roraima estimates that between 1991 and 1994 there had been at least six attempted homicides of Macuxis; eight rapes; fifteen cases of assault and battery and seven Indians who received death threats. Police agents were implicated in ten of those crimes. Two Indians died in police custody--one as a result of mistreatment, the other when a police officer shot him in the head.(15)
58. In 1988 a Macuxi Indian named Donaldo William was shot to death when the Canawapai indigenous area was invaded. In 1990, two Indians--Damiao Mendes and Mario Davis--were killed in an invasion of the Santa Cruz indigenous area, and the homicide was absolved. In the suit against various police officers over the death of a Macuxi youngster, Ovelario Tames, who was killed in 1989, the instruction phase is still continuing six years later. The principal subject of accusation was not called to trial until five years after the incident occurred. The members of the juries which decide on the outcome of such cases are not Indians, and as a rule they declare the innocence of persons accused of killing Indians.(16)
59. At the end of 1994, the State Government started work on a hydroelectric plant in the center of the indigenous area. A number of Macuxi communities were evicted by the police with such violence that extensive public attention was aroused. As a result, the (federal) Department of Waters and Electric Energy withdrew permission for the works until they had been authorized by the National Congress, as required by the Constitution in the case of indigenous land.
60. It should be pointed out that 140,000 of the total of 215,000 inhabitants of the State of Roraima (IBGE, 1991) live in the capital city, Boa Vista. Approximately half of the remaining 75,000 are Indians. The State covers an expanse of 23 million hectares, and 42% of that area is occupied by indigenous populations.(17)
61. The indigenous communities of Raposa and Serra do Sol are raising crops that are suitable for the land they possess. They are also breeding and raising ten thousand head of cattle. There are indigenous teachers in almost all of the area's 95 villages, some of which are supported by the State Ministry of Education.(18) The Assembly of Leaders told the IACHR of their need for education, health care and transportation services, as well as their interest in building up their communities and taking an active part in overall development of the State of Roraima.
62. The Commission was also informed of the unanimous will of the Macuxi and other towns in the Raposa and Serra do Sol area that the demarcation of their lands should be completed, although some of them would like to have this done in the form of separate blocks, rather than in continuous stretches. This would mean that those indigenous "islands" would be surrounded by nonindigenous clusters. The result would be a sharp reduction of their total area, thus breaking up the physical and cultural continuity of the Indian people. The position favoring the recognition of smaller and discontinuous areas was presented to the IACHR delegation by the Governor of Roraima, and it coincides with the opinion of the leader of a Contao village and the president of the Indigenous Society of Northern Roraima in the statement he delivered to a committee from the Chamber of Deputies.(19) The Assembly of Leaders and the Roraima Indigenous Council, however, believe that these statements are part of an attempt to divide the indigenous leadership by misleading them and bribing them with material presents.
G. THE YANOMAMI: THE FRAGILITY OF THEIR CULTURE AND CONDITIONS FOR PHYSICAL AND CULTURAL SURVIVAL
63. The Yanomami and their struggle for survival as individuals and as a people provide an example of the problems faced by indigenous residents of the tropical forests in the national and international defense of their rights. The Yanomami who have lived for at least two thousand years around the Orinoco River in the region that has now become Venezuela and Brazil now account for an estimated 10,000 inhabitants of Brazil who live in groups in 150 communities.(20) The communities are independent of each other and do not have a single government structure, but they maintain relatively stable self-sufficient economies and relationships with their environment. At the same time, the growing intercommunication between the indigenous villages and the traditional uses of land have permitted the physical and cultural survival of the Yanomami along with protection of the ecology. That stability is now being threatened by the successive encroachment of outsiders, some of whom--such as the prospectors for gold and other items (garimpeiros)--are engaged in unlawful activities that cause damage to the lives and survival of these Indians and their culture and environment.
64. The Yanomami occupy an indigenous area containing 9.4 million hectares (36,367 square miles) of lush tropical forests in the Brazilian States of Roraima and Amazonas--an area that has been demarcated and given final approval.
65. To understand the delicate situation of the Yanomamis human rights, it is important to recall relatively recent phenomena that have resulted in quantitatively significant loss of lives. The years between 1974 and 1976 saw the start of construction work on the Northern Perimeter Highway built mostly for the hauling of minerals. By the time it had covered a distance of 225 kilometers in Yanomami territory--and because the construction company workers had not been vaccinated (nor had vaccines been provided for the natives there)--the Yanomami population of thirteen villages along the first several kilometers of construction was besieged by epidemics that resulted in the death of one out of every four Indians. At the same time, the incidence of conflicts between immigrants and indigenous escalated, resulting in untold numbers of deaths.
66. The successive discoveries of valuable minerals and attempts at exploitation--in particular, by "garimpeiros" (small-scale prospectors of gold and precious minerals) who were in turn financed, supplied and given political support by well-endowed groups which also had political clout in the region--brought in their wake new diseases, including malaria, tuberculosis, smallpox and other germs against which the natives had not developed any genetic defenses. In 1976, the Ministry of the Interior ordered the miners to be evicted. It is estimated that 15% of the Yanomami population (i.e., some 1,500 of them) died in that period as a result of diseases introduced by the miners. One of those newly arrived scourges--malaria--is found in 40% of the population today.
67. In December of 1980, the Commission received a complaint(21) denouncing acts such as the construction of highways, the issuance of mining permits, the lack of vaccination for the natives and the attempts to reduce their right to their lands by means of government measures, all of which would violate the Indians' rights that are guaranteed by the American Convention. After various procedural tasks--including hearings with experts and governmental representatives--the Commission issued a judgment on March 5, 1985, pointing out that serious violations of human rights had been committed against the Yanomami, especially at the time when a work was begun on construction of the Northern Perimeter Highway. The judgment also acknowledged the important measures adopted by the Government of Brazil in the last several years, especially since 1983, to protect the life, security and health of the Yanomami Indians. In addition, it recommended that the preventive and curative measures be continued there; that the borders of the Yanomami Park be demarcated; and that competent scientific, medical and anthropological personnel be consulted with a view to designing assistance programs for these Indians. (See the IACHR Annual Report for 1985, pages 24-34.)
68. Between 1987 and 1990, in the context of the Calha Norte project's execution, the ancestral Amazonian territory of the Yanomami--which had consisted of 23.5 Million acres--was reduced by 70% and divided into 19 isolated areas. Two thirds of the original territory was opened up to mining exploitation--especially gold. Thousands of "garimpeiros" penetrated their land in search of gold and precious metals. In 1987 their number was estimated as roughly 45,000.
69. Starting in 1988, the federal courts decided on various occasions in favor of the Yanomami=s rights. To begin with, they annulled the break-up of their continuous area into separate "reserves," forming a sort of archipelago. At the same time, the courts ruled in defense of the right of this group and others, to the effect that their territories would no longer be subject to usurpation by unlawful mining and lumbering operations and specified measures that would be used to oust them.
70. When the indigenous rights were set forth in the 1988 constitution, the federal agencies began to cut down on the invasion of this area and reduced the number thereof to a few thousand by the early 90s.
71. In subsequent years, the commission received information that the recommendations it had issued in 1985 had been implemented and that the demarcation and definitive titling of the Yanomani area had been completed. During their visit, its members were able to confirm the existence of health care posts and the establishment of federal inspection stations in the indigenous area, along with the efficient service being provided at that time by the federal national police force in protection the territory and defending it against the stealthy incursion of garimpeiros.
72. During its visit in December of 1995, the Commission obtained coinciding accounts from different sources--including state agents--placing the number of garimpeiros at less that three hundred in Brazilian territory, plus an undetermined number in the Yanomami area in Venezuela: most of the latter group were Brazilian and received their supplies from the Brazilian State of Roraima.
73. But the vigilance performed by FUNAI and federal agencies in the Yanomami was plagued by a series of ongoing changes. Early in March 1996, the helicopter watch performed by the Federal Police was suspended. As a result, a new shipment of garimpeiros and machinery was brought into the area by plane. It is estimated that some 2,000 garimpeiros have now settled there, and that 24 secret landing strips resulted from that operation. At the end of March, officials of the Justice Ministry announced that they would conduct a renewed campaign of expulsion and vigilance(22). The campaign has not been reinstated, nor had the intruders been evicted at the time this report was written.
Status of health in the Yanomami area. Incidence of malaria
74. The introduction of malaria and other diseases, in particular by the garimpeiros, has had adverse effects on the general situation of the Yanomami=s health. The most widely prevalent is malaria which, together with pulmonary disorders, has virtually decimated the Yanomami population and continues to exist on an epidemic scale today. According to official figures, the incidence of malaria among the Yanomami rose by 44% during 1995. That number is consistent with the upturn of malaria in the general population of the State of Roraima, which reached 52% in that year.
75. But in the Yanomami area where a project supported by the Pro Yanomami Commission, a nongovernmental agency, was conducted, the incidence of malaria declined by 14% in 1995. Over the last four years, the population has increased by 10.3% in the Yanomami communities where that project is being carried out.
76. The Commission has witnessed the interest displayed by the Yanomani communities it visited in preserving their cultural values and life style, at the same time respecting their ties to the Brazilian community, with which they are willing to share their knowledge and examples. It also received heard frequent statements of fear at the introduction of elements from the outside world without due care to protect the fragility of Yanomami culture and proper attention to their health.
77. In particular, the leaders cite the continuous pressure exercised by the garimpeiros with their sequelae of sickness, friction and the poisoning of streams. But they also refer to the access roads to the Yanomami area being built on their lands, which in their experience serves only to introduce disease, intruders (the garimpeiros and other sorts) and the unlawful exploitation of the timber resources or customs which disorganize community life.
78. These dangers have been brought closer with suspension of the Federal Police action using helicopters to protect the Yanomami area, as of March 1996.
H. VIOLENCE AGAINST THE INDIGENOUS PEOPLES, AND IMPUNITY
79. According to the CIMI figures, there were forty-three murders of Indians in 1993, and 32 of them were committed by nonindigenous persons. Eight were committed by gold miners; seven were triggered by disputes over land; three by lumbermen; one was motivated by revenge; and the cause of three others was not known. By June of 1994, there had been only one arrest in all those cases and seven police investigations had been opened. In addition, 85 attempted killings, seven rape cases, 29 beatings and 18 illegal arrests were reported.(23)
80. Among the Yanomami natives, various persons were killed in 1993 by a group of garimpeiros in Haximu. In December 1996, five garimperios were convicted of genocide, but only one is now in prison.(24)
81. The Commission was able to verify that in the states where there are indigenous groups, the persons who defend them are continuously exposed to threats and that the Government is aware of the danger in those cases. Word was received in this respect that Paolino Baldasarri, a member of the Order of Servants of Mary and defender of indigenous rights was allegedly threatened by lumbermen in the Rio Branco region of Acre; and that the Government had provided him with protection. In the State of Para, on the other hand, Humberto Mattle, a defender of indigenous and other groups, had been murdered on October 10, 1995 in Xingú, Altamira, Pará. According to newspaper reports, the murderers confessed when they were arrested, but said that they had mistaken the target, since they had intended to kill Padre Federico, another active defender of indigenous peoples. Shortly before the middle of 1995, Bishop Erwin Krautler, a former president of the CIM had been attacked and threatened.(25)
J. CONCLUSIONS AND RECOMMENDATIONS
82. Based on the foregoing, the Commission concluded that:
a. Over the past decade, the Indian peoples of Brazil have made major strides, insofar as their rights --including the demarcation and ownership of their lands--are concerned. Their cultural and physical integrity, as well as the integrity of their lands are, however, under constant threat and attack by both individuals and private groups who disrupt their lives and usurp their possessions. What is more, there have been attempts by the authorities of several States to erode their political, civil and economic rights. Although the National Human Rights Plan includes positive measures to combat this situation, reports received in early 1997 show that these measures have not yet been implemented to any significant extent;
b. The situation of the Indian peoples of Brazil in the areas of health, nutrition, and access to public services is worrying. Indicators demonstrate clearly discriminatory conditions as compared with standards and services for the general population;
c. Security guarantees that every state should provide for its inhabitants and which, in the case of the Indian peoples of Brazil, require special protective measures, are insufficient in terms of preventing and finding a solution to the ever-continuing usurpation of their possessions and rights;
d. Significant progress has been made in recognizing, demarcating, and granting territorial lands to the Indian peoples. Nonetheless, there are some cases, especially in the State of Roraima, where the Commission was able to confirm that action had been taken by the state to erode the human rights of the Indian population;
e. The procrastination and difficulties encountered in recognizing the integrity of the Macuxi people and full ownership of their lands, as well as the establishment of municipalities superimposed on their lands, thus weakening their traditional leadership and structure, are evidence of the inability of the Brazilian state to protect these peoples from invasion and abuse from third parties, and to militate against political pressures as well as pressures from the police intended to erode their full security and enjoyment of their rights;
f. The Yanomami people have obtained full recognition of their right to ownership of their land. Their integrity as a people and as individuals is under constant attack by both invading prospectors and the environmental pollution they create. State protection against these constant pressures and invasions is irregular and feeble, so that they are constantly in danger and their environment is suffering constant deterioration.
The Commission therefore makes the following recommendations:
a. To expedite and reinforce achievement of the short- and medium-term objectives established in the National Human Rights Plan. To establish procedures to promote compensatory measures in the areas of education and health, with the full participation and control of the Indian peoples concerned, in accordance with their own traditions and leadership.
b. To provide FUNAI with all types of resources to enable it to carry out its functions as regards completing the demarcation of lands as well as providing advisory services and legal advice to the Indian peoples.
c. To suspend all decisions on municipalization that have an effect on Indian lands, including those for which demarcation and official sanction are underway; and to establish procedures aimed at maintaining their integrity and autonomy in conformity with the constitutional provisions in force.
d. To demarcate and give legal sanction to ownership of the lands of the Macuxi people in the State of Roraima, with full respect for their property and ancestral institutions and customs.
e. To institute federal protection measures with regard to Indian lands threatened by invaders, with particular attention to those of the Yanomami, and in Amazônia in general, including an increase in controlling, prosecuting and imposing severe punishment on the actual perpetrators and architects of such crimes, as well as the state agents who are active or passive accomplices.
1. This figure represents about 0.2% of Brazil's total population, people who live in 546 areas and speak 270 languages. After a continuous decline which reached its nadir in the 1970s, the number began to rise again. In 1990, the figures of the special census indicated that there were 230,000, thus pointing to a sharp upturn over the five-year period until the 330,000 mark was reached in 1995.
2. The first indigenous national organization, UNI, was established in 1970. Others were established since then and internationally recognized indigenous leaders, such as Alton Krenak, Paulo Paiakan and Davi Yanomami came into the picture. Since then, the action of various indigenous and non-indigenous groups relative to their survival, rights and development has mounted. The year 1967 marked the creation of the government agency designed to put indigenous policies into practice--FUNAI, which continues to play a central role in the status of the indigenous peoples' human rights.
3. Clauses 3 and 4 of Article 174 refer to the activity of prospecting and extracting gold and precious metals on a small scale (garimpagem), and its text reads as follows:
Article 174...3. The state shall promote the organization of the prospecting activity in cooperatives, taking into account protection of the environment and socioeconomic promotion of the prospectors.
Article 174...4. The cooperatives to which the preceding paragraph refers shall have priority in the authorization or concession for research and working of resources and deposits of prospectable minerals in the areas where they are working and in accordance with Article 21, XXV, pursuant to law [Competence of the Federal Government].
4. A Critica newspaper, Manaus, November 19, 1995.
5. Studied by the Manaus Institute of Tropical Medicine, 1995.
6. Of these, 13 are identified and are now awaiting official declaration; 83 are surveyed, and awaiting physical marking; 13 are marked, awaiting description; and 14 are described and awaiting recording. Another 254 pieces of land are recorded. Another 179 cases remain to be identified.
7. The 307 Indian reservations in Brazil (out of a total of 554) which are still in the laborious legal process of identification, marking, approval and recording are still the subjects of claims by owners, lumbermen, mining companies and political groups that support them.
8. Julio Gaiger, former president of FUNAI. Mentioned in CCPY Update, May 1996.
9. Interview with the Governor of Roraima; Presentation of the Assembly of Leaders; Interviews with FUNAI officials and authorities of the Federal Police, Roraima Delegation (December 1995).
10. CIMI, published in Porantim, September 1995.
11. FUNAI informed the IACHR that the suicide rate among those indigenous peoples fell to less than half during the first few months of 1997 compared with the same period for 1996. It attributed this to the development of agricultural projects and the marking of new lands.
12. In this connection, see in this chapter as well the case of the hydroelectric dam in the Macuxi de Raposa/Serra do Sol area (Section V) and the Northern Perimeter road in the Yanomami area (Section VI).
13. Human Rights Watch/Americas: "Brazil, Violence Against the Macuxi and Wapixana Indians in Raposa Serra do Sol and Northern Roraima from 1988 to 1994." Washington, June 1994.
14. Presentation to the IACHR. General Assembly of Leaders from the Raposa-Serra do Sol area, December 3, 1995. In December 1995, approximately 15,000 birds of different species died when poisoned by carelessly used pesticides, according to the charges, on indigenous lands invaded by a former deputy and a large rice producer in the Raposa-Serra do Sol area. Several Indians from the Javari village approximately 5 kilometers from the area where the spraying occurred were also poisoned and had to be hospitalized. One of those responsible for the illegal spreading of pesticides was detained but immediately released. The Federal Police and the IBAMA seized the aircraft and the chemical products used in the spraying. CIMI Newsletter 191, January 1996.
15. Human Rights Watch, Violence Against Macuxi, Report, Washington, D.C., 1994.
16. Presentation by the Assembly of Leaders to the IACHR, December 1996. Interview with the Bishop of Roraima, December 5, 1995.
17. Data for 1991, Instituto Brasileiro de Geografia & Estadistica (IBGE).
18. Interview with the governor of Roraima, Neu De Campos, and the IACHR delegation, December 1995. AO Diario@ journal, Boa Vista, Roraima, December 7, 1995. A presentation of the Assembly of Macuxi Leaders, village of Matucura, December 3, 1995.
19. Interview with the governor of Roraima, Neu De Campos, Boa Vista, December 6, 1995.
20. Another 12,500 Yanomamis live in Venezuelan indigenous areas covering approximately 10 million hectares.
21. The original complaint was filed by the following entities: American Anthropological Association, Anthropology Resource Center, Indian Law Resource Center, Survival International and Survival International USA which is also representing Cooperation Committee for the CCPY Yanomami Park.
22. CCPY, Update, May 1996.
23. Indian Missionary Council (CIMI): "Violence Against the Indian Peoples in Brazil in 1993," Brasilia, 1994.
24. IACHR is processing a case on this situation.
25. Porantim, publication, September 1995.