CHAPTER II

BRAZIL'S EVOLVING POLICY TOWARDS THE INDIGENOUS COMMUNITIES

In comparison to most countries of Latin America, Brazil has the smallest number

of indigenous people relative to the total population. By most current estimates, Brazil's

indigenous community does not exceed more than 250,000 which in the . overall

demographic estimate constitutes a mere 0.2 per cent. 1 Further, this fractional indigenous

people belong to more than 200 different ethnic groups speaking almost as many

languages or dialects, and are scattered throughout Brazil's vast territory of 8,511,965

square kilometres with sizeable concentration in the region of Amazon bordering on

adjacent countries in the north. 2 Yet, this minuscule indigenous population distributed in

The demographic estimate of the indigenous community in Brazil is still approximate and varies considerably depending on the source. The first ever most systematic estimate was made by Curt Nimuendaju in 1981 on behalf of the Brazilian Institute for Geography and Statistics (IGBE) in The Ethno­Historic Map. In this work Nimuendaju identifies no less than 40 different linguistic families each with ramifications and extensions. The map's index of tribes is formed by a list 22 pages long, each page containing more'than 60 names. In 1985, the National Indian Foundation (FUNAI) released a report which indicated the existence of 233 indigenous groups in Brazil with a total population of 214,611 persons. Subsequently, in 1991 the Ecumenical Documentation and Information Centre (CEDI) in what is claimed as the most complete survey published a voluminous report entitled Indigenous Peoples in Brazil, in which is revealed the existence in Brazil of 506 indigenous territories, 417 of which are officially recognized with a total of 236,000 indigenous people. Official census data are not exhaustive because of difficulties in gathering information on isolated groups as well as on those who are in "the process" of integration/assimilation. Besides, there is a great mobility of indigenous groups through the borders as in the case of Yanomamis who inhabit Brazil's northern state of Roraima and the neighbouring country of Venezuela and also in the case of Guaranis who live in the state Mato Grosso do Sul and in adjacent Paraguay.

2 According to current available estimates, a majority of the indigenous people are found in Amazonia ( 64 per cent), in the East and Northeast (17 per cent) and in the Southern states (about 19 per cent). The least contacted are the forest Indians probably numbering about 100,000. The indigenous people,

37

multiple spatial locations and cultural identities are most visible virtually around the

world, and the variety of issues arising out of the Brazilian indigenism have absorbed a

great deal of political energy both within and outside Brazil in recent decades.

Focussing attention on the current issues of governance of the indigenous

community in Brazil, this Chapter purports to examine the different phases of the social,

political and legal status of the Brazilian indigenous people since the arrival of the

Portuguese settlers in the beginning of the 16th Century. Also, attempt is made to analyze

the policy rationale of the successive administrations beginning with the Portuguese

Crown and through the distinct periods of the Empire and the Republic. The status of the

indigenous people involves not one but several different issues varying from time to time

depending upon the changing historical circumstances and imperatives. However, from

the point of the indigenous community these issues are, broadly speaking, related to their

demographic strength, cultural identity and their rights over their ancestral lands.

From Colonization to the Second Republic

History texts and treatises do point out that the visibility of the indigenous people

of Brazil in terms of their plight and problems can be traced as far back as the very events

surrounding the Portuguese maritime forays into South America. According to one view,

the Tordesillas Treaty signed by Spain and Portugal at the behest of the Vatican in 1494,

in anticipation of the Portuguese colonization six years later of what is today Brazil, had

conferred already upon them the right to rule the inhabitants of these lands as they deemed

fit. As one observer aptly puts it:

By the stroke of two royal pens [of the Iberian colonial powers of the time] the fate of millions of indigenous

according to most authoritative sources, are divided into two main groups-Ge and Tupi, and twelve families--Carib, Arawak, Pano, Tukano, Katukina, Puinave, Yanomami, Mura, Txapucura, Takana, Nambikwara and Guaykuru.

38

peoples in South America was set there and then.3

However, the first-ever reference as t~ how Portugal should treat the indigenous people in

the lands discovered by Pedro Alvares Cabral is found in a written record prepared by

Pero V az de Caminha, a scribe who accompanied Cabral in the voyage. Soon after

Cabral's fleet anchored off Porto Seguro in the South Atlantic coast on 22 April 1500,

Caminha dispatched a complete report of the "discovery", describing the people and the

natural resources of the region by a caravel that specially carried it to Lisbon. Known as

Carta de Pero Vaz de Caminha, this historic document gives a graphic d~scription of the

physical features and personal traits of the people he had encountered in these new lands.

To quote some excerpts of the letter:

[T]heir looks ... a chestnut brownish colour ... with good faces and good noses ... they have so much innocence .... If we could ... understand ... each other they would soon become Christians, because, as it seems they do not have or seem to understand any kind ofbelief.4

What is even more striking about this document is when V az de Caminha writes to say

that the

best thing that we can do about this new land is to save this people. This should be the main seed to be left here on behalf of your Highness.5

Notwi~standing the candour with which Caminha had counseled the Portuguese Crown,

the exigencies of the colonization process in the newly acquired territories in South

America confronted Portugal with a difficult dilemma viz. whether to "save" these

Alcida Rita Ramos, "A Hall of Mirrors: The Rhetoric of Indigenism in Brazil," Critique of Anthropology (London), vol.l1, no.2, 1991, p.155.

4 For the text of Caminha's letter translated in English see William B. Greenlee, (ed.), The Voyage of Pedro Alvarez Cabral to Brazil and India (London, 1938). For an analysis of the Carta of Caminha, see E. Bradford Burns (ed.), A Documentary History of Brazil (New York, 1966).

Ibid. Emphasis added by present writer.

39

indigenous peoples as "assets" or "liabilities". For, in the initial years, as the Portuguese

settlers moved into these lands, their mere physical proximity and contact turned the

natives into hapless victims of a variety of European diseases and pestilence against which

they seemed to have had no inherent acquired immunity. Resulting heavy loss of life

among the natives together with the imperatives of the early mode of Portuguese

colonization based on the captaincy system enjoined the donatarios to turn the colonies

into profitable export-oriented plantation agriculture. It also encouraged the unscrupulous

and adventurous Portuguese colonists to maraud and massacre the natives settlements and

engage the captive indigenous people as forced labour in their lands.6 It is in these critical

circumstances, the treatment meted out to the indigenous people became for the first time

a matter of vital concern to the colonial authorities. Charged with reconciling the

incompatible objectives of the Crown seeking "to save" the souls of the natives for

Christianity and the planters seeking their bodies for hard labour, the colonial authorities

eventually yielded to the pressure from the planters. So, in 1537, a charter was

promulgated which gave the settlers permission to hold the natives as slaves in their

6 The Portuguese method of colonization in South America was an adaptation of the captaincy system used in the Atlantic islands during the preceding Century. It involved the creation of several colonies from along the coast from Maranhao to Santa Catarina. Divided into 15 parallel strips ranging in width from 10 to 100 leagues, these colonies extended inland from the sea. to the vaguely defined line of Tordesillas. These huge tracts were granted as hereditary capitancias of one or 'more strips each to 12 grantees known as donatarios. By granting to the donatarios who were mostly members of the Portuguese nobility the Crown at little cost to the royal treasury sought to confirm its claims over the colonies that the donatarios would develop. The capitancia combined elements of feudalism and capitalism of the age. It was feudal to the extent the donatarios received the captaincy as a fief from the Crown to whom he alone was responsible personally. In accepting the grant, he assumed the obligation not only for himself but also for his progenies to preserve and enrich the captaincy subject to the ultimate authority of the Crown. It was a capitalist system because the establishment of the capitancia represented a major capital investment and an enterprise for profit. The two legal documents--the Carta de Doacao (the land grant deed) and the fora/ (the feudal contract) together constituted the Charter issued with each capitancia. These documents enjoined the Crown's monopoly of the brazil wood and the right to collect certain royal imposts and also conferred on the donatario virtually supreme political, economic, judicial and military power in the capitancia. He was also authorised to deve~op the capitancias, cater to the civil and the spiritual welfare of its inhabitants including the indigenous people. In fact, one of the principal justifications for the establishment of the capitancias was to enable the Crown to fulfil its Christian duty to save the natives from eternal perdition.

40

settlements. 7

With this royal proclamation began an ignominious phase in colonial Brazil. The

"celebrated" bandeirantes alongside expanding the frontiers of Brazil deep into the south

and west also made forays into the native settlements enslaving a large number of

indigenous people. Some bartered their captives to the planters and ranchers for personal

gratification and gains.8 As one writer graphically recaptures:

In southern Brazil, the slave raids of . the famous "mamelucos" were a normal source of Indian labor for a long time. It was the arbitrary abuses attendant on this loose form of impressment that led to the innovation of the encomienda, which remained the basic design for the regulation of the agricultural labor throughout the colonial period.9

Admittedly, the policy rationale was the acknowledged colonial principle of inducting the

indigenous people into the new organizational system until after the introduction of

African slave labour and, at the same time, forcing the natives to submit to the existing

juridical order of the colonial administration.

Neither the royal proclamation legalizing the natives as slaves nor the

7 L. Roberto Barroso, "The Saga of Indigenous Peoples in Brazil: Constitution, Law and Policies," _ St. Thomas Law Review (Miami), Summer 1995, p.65l.

8 As a noted Brazilian sociologist puts it: The bandeirantes were responsible for the disruption and decimation of numerous Indian villages. In fact, the more ferocious and recalcitrant the Indians were in defending themselves against the invaders, the more heroic the bandeirantes became in the eyes of posterity. Naturally they were highly commended by the Portuguese rulers for expanding the boundaries of the colony and for clearing the new land of the native but inconvenient owners. On the other hand, however, live Indians were used as forced laborers.

See Alcida Rita Ramos, n.3, p.l55.

9 William Lytle Schurz, This New World: The Civilization of Latin America (New York: EP Dutton & Co., 1954), p.54.

41

indiscriminate raids orchestrated by the bandeirantes on their settlements yielded the

desired results. For, neither could the natives be easily subdued nor were the planters

satisfied with their work culture. As a result both the parties "became mutually

antagonistic" and by mid-1540s escalating "hostilities between Indians and colonists were

threatening the survival of most of the Portuguese settlements in Brazil." 10 The French no

less stirred these hostilities pitching high into open revolts. For, by now through their

incursions into the brazilwood trade along with the Portuguese in these regions had

become a serious threat not only to Portugal's monopoly of the trade but even to its

colonial holdings in South America.

It is for these considerations, including importantly, the inability of the donatarios

to rein in the rebellious people, the Portuguese Crown decided to appoint a governor­

general and administer directly its colonial possessions in South America. At the same

time, it revoked by the same decision the rights and privileges of the donatarios in the

year 1549. While these decisions brought to fore far-reaching political changes which

affected the relations between the colonists and the Crown, in its wake, it ushered in a new

policy approach towards the indigenous community. It was largely on account of yet

another transformative change that the colonial economy was undergoing viz. the

brazilwood cycle yielding place by then to the sugar cane cycle. The widespread

proliferation of sugarcane culture and attendant economic activities throughout its colonial

possessions which in tum imposed a heavy demand for additional inputs of skilled

plantation labour, forced the royal government by now to authorize the importation of

African slaves. As to the natives:

10

The men responsible for Brazil's destiny reasoned that if sufficient Indians could be persuaded or obliged to serve the Portuguese and allies ... the French threat would be reduced,

Rollie E. Poppino, Brazil: The Land and People (New York: Oxford University Press, 1968), p.60.

42

[and] the Portuguese settlements would be secured against attack. 11

However, to win the confidence of the indigenous community, the Crown had to adopt a

new approach and strategy. Towards this objective the Crown now resorted to the

institution of Church and called upon a new and zealous religious order, the Society of

Jesus for the task. As it turned out, the Jesuit missionaries around this time were the only

ones who raised their strident voice of protest against the practice of enslavement of the

indigenous people and the atrocities perpetrated on them by the planters and the

bandeirantes. So much so, ever since, it was the Jesuit priests who became the willing, if

at times, the unwitting agents of indigenous people's affairs. As a preliminary step towards

this new approach, the Portuguese Crown in the capacity as the Grand Master of the Order

of Christ, assumed charge of the Church in all its colonial possessions and by way of

patronizing directed the religious orders in the colonies. Accordingly, the first contingent

of six men arrived with Thome de Souza in 1549, while a second group led by notable

Jesuit priests--Manoel de Nobrega and Jose de Anchieta followed four years after. In their

tas~ to pacify and concentrate the natives near the Portuguese towns where they could be

deployed as a striking force against the French and the unfriendly indigenous

communities, they over time organiz.ed settlements called the aldeias. Into these aldeias

natives who had been baptized as Christians were admitted. Also, training centres called

colegios were set up where rudiments of formal education and basic skills in plantation

agriculture were imparted to native children. 12 Subsequently, as sugar plantations extended

beyond the narrow confines of early settlements, these aldeias spread and dotted the

interiors well in advance of effective settlements of the Portuguese and creole colonists. In

II Ibid., p.61.

12 For a description of the Jesuit missionary activities in the mid 16th Century, see Charles R. Boxer, The Golden Age of Brazil, 1695-1750 (Berkeley: University of California Press, 1962), Robert Southey, History of Brazil (London: Longman, Hurst, Rees and Orme, 1819), Vol. I, II, and III and Hubert Herring, A History of Latin America: From the Beginning to the Present (New York: Alfred A. Knopf, 1955).

43

the process, a large number of natives were ipso facto segregated into what may be

described as reserves. The Jesuit missionaries justified these aldeias on grounds that it

would save and shelter the Christianized natives from the deleterious and pernicious

influences of both the white colonists and the as yet not Christianized natives. The

missionaries were firmly of the view that the natives had to be kept aloof from the planters

because the latter was "a parasite" on the indigenous people and was also "preyed" upon

by the royal functionaries. Speaking of their evil influence on the natives, Joao Lucio de

Azevedo, a priest from Maranhao, put it pithily saying that the planter and the loyal

functionary were equally adept at the "conjugation of the verb rapio." 13 Equally justified

was their segregation from their own kin because the missionaries believed that the

converts were prone to lapse into their own community's "hedonistic" practices. In a

manner of endorsing these missionary activities through the a/deias, the royal edicts too

were issued in (1570, 1580, 1605 and 1609) declaring the natives as "free" under the

guardianship of the Jesuit priests. 14

Before long, however, the missionary activities provoked many clashes with the

slave hunters and the sugar planters. While the slave hunters attacked the a/deias for

reasons that their lucrative raids had now been legally checked, the sugar planters in

particular resented that the aldeias had denied them access to the indigenous labour under

the control of the missionaries. What is even more, they discovered to their dismay that

the a/deias themselves were turning into strong economic entttrprises, often veritable

plantations, on which the natives laboured without material compensation other than food,

clothing and shelter which by the stint of their hard work they provided for themselves. It

is for these considerations, the colonists "tended to dismiss as hypocrisy Jesuit expressions

13 Quoted in Gilberta Freyre, The Masters and the Slaves: A Study in the Development of Brazilian Civilization (New York: Alfred A. Knopf, 1967), p. 153.

14 Barroso, n. 7.

44

of concern for the souls of the converts", and argued that these missionaries "seeking to

save souls could work as easily among slaves as among free Indians."

As some argue, the missionary activities through the a/deias and the colegios were

even more damaging and detrimental to the life and identity of the indigenous community

than has been depicted by the planters. No doubt, the enslavement of the natives under the

capitancia system exhausted them physically. But their physical isolation in the a/deias

robbed them even more. Attributing this loss to the latifundiary form of colonization and

to the sugar cycle monoculture, Gilberto Freyre passionately laments:

It was sugar that killed the Indian. It was to free him from the tyranny of the plantation that the missionary segregated him in villages, another method, if a less violent and a more subtle one, of exterminating the Brazilian native: by preserving him in brine, but not allowing him to preserve his own autonomous and proper life. 1s

Be that as it may, the clash of interests between the planters and the slave hunters

on the one hand and the Jesuit missionaries on the other, reached a climax about the

middle of the 17th Century. In various parts of colonial Brazil, land-owners rose in revolt,

summarily expelled the Jesuits and without fear defied royal edicts proclaiming the

freedom of the Indians.

It is in the midst of these untoward developments, the Crown commissioned the

Jesuit, Antonio Vieira, acclaimed as "a priest of extraordinary oratorical and literary

powers," to proceed to colonial Brazil with full royal authority "to settle" the Indian

IS Gilberto Freyre, n.l3, p.l56. Freyre further argues that the a/deias !Uld the colegios made unnatural individuals out of the natives who "not only had no bond with the moral traditions of their own culture, but who were, in addition, cut off even from the colonial environment and the social and economic realities and possibilities of that environment." In that sense they were at a double disadvantage of being distanced from their past reality and that of contemporary times. As Freyre says, "they became an artificial population, living apart from the colonial one, a stranger to the latter's necessities, its interests, and its aspirations; it was a population of grown up children in a state of paralysis, men and women incapable of autonomous life and normal development." See p.l43 and 150.

45

question as he saw fit. Arriving in Brazil in 1653, and in what is described as a famous

sermon to the people of Maranhao, Vieira while denouncing Indian slavery, nevertheless

declared that it should be continued under certain conditions, thereby implicitly seeking

the continuance of the system of a/deias. 16

Although generally sympathetic to Vieira's predilections, the Crown however

could not sustain for long such a policy of "selective slavery" because as some have

argued, it "represented an arbitrary and mechanical imposition" and "hindered rather than

facilitated true social integration" of the indigenous people with the larger society. 17 As a

consequence, for nearly a century and a half, the Portuguese colonial administration

perforce had to pursue a policy of "compromise" which unquestionably satisfied neither

the Church nor the colonists. For, the policy of "compromise" neither could effectively

save the souls of the natives as espoused by the clergy nor could they be savoured as

assets as desired by the colonists. Instead, as an authoritative historian emphatically

remarks, it only "exterminated whole tribes [of indigenous people] in a singularly

barbarous way." 18

A decisive turn to this desultory policy approach however came during the reform

administration of Marquis de Pombal in mid-18th Century. Controversial during his time

16 Speaking of the life in the aldeias, Antonio Vieira had this to say: [T]o destroy a unity that is so natural or which has become so naturalized, would be a species of cruelty toward those who have lived together after this manner for so many years. I say, therefore, that all these Indians, ... who have so great a love for their so called masters that they remain with them of their own free will--1 say that they may .do so without any obligation other than that of the said love, which is the gentlest of captors and the freedom that is most free.

Quoted in Gilberto Freyre, n.l3, pp.l45-46.

17 Benjamin Keen, A History of Latin America (Boston: Houghton & Mifflin Co., 1992), p.l48.

18 Charles R. Boxer, n.l2, p.278.

46

and beyond both for his intransigent stance and stringent measures, Pombal adopted a

series of legislations which, among others, provided for the blanket expulsion of Jesuit

missionaries from Portugal and Brazil and the brazen purging of their lands and riches.

His target was not the Jesuits alone. For, at the same time, he introduced laws that

abolished slavery and forbade raids on the settlements of the indigenous people and their

enslavement. The policy rationale of Pombal's that emancipation of the natives from

servitude is but a necessary and preliminary step towards the eventual assimilation of the

natives with the larger society was considered basically sound and logical. For, it is the

emancipation that would enable the natives to reclaim their identity, give them the

opportunities "to cultivate their faculties" in order that they could "civilize their habits."

Without these, any effort to "blend them with the Brazilian Portuguese" could not be

achieved. It is for these considerations, critics have variously described these policy

measures as "admirable" as well as an evidence of his "generous intention." Yet Pombal's

strategy of coming heavily against the Jesuit missionaries was critically questioned. As

one historian observes: "The project [Pombal's policy initiatives] was worthy of his

ambition ... but in destroying the Jesuits he deprived himself of the only agents by whom it

could have been effected." 19 Whether or not Pombal's measures had any salutary effect on

the plight of the indigenous community, the growth of African slave trade around this time

in the colonial settlements considerably diminished the demand for the native labour and

thus brought a measure of peace to the indigenous people.

Although Pombal's bold initiatives brought about the end of slavery in Portugal,

the practice of enslavement of the indigenous people lingered on in Brazil even after its

independence. So much so, the Brazilian Empire state, born with the 1824 Constitution, as

a writer points out, "inherited from the colot:ly a silent body of legislation vis-a-vis the

19 Robert Southey, n.l2, Vol.III, p.513.

47

indigenous people. "20 While the intent and objectives of these legal instruments were

clear, there still existed a sizeable number of slaves of the indigenous community and their

legal status remained largely undefined. In the euphoric years of Brazil's independence,

the Empire State vigorously espoused the cause of the natives. Its first prime minister Jose

Bonifacio de Andrade e Silva passionately argued on the absurdity of the institution of

slavery and underlined the need for the 'civilization' of the indigenous community.21

As a preliminary step towards these objectives, the Brazilian Empire state during

the regency of Dom Pedro II promulgated a decree in October 1831 freeing all natives

who were slaves at that time. A more comprehensive legal instrument was enacted on 24

July1845 to regulate specifically the relationship between the state and the indigenous

community. The memorandum of this new decree stated that it "contains regulations about

the indoctrination and civilizing missions of Indians. "22 To this effect, administrative

structures were created not only to take care of the indigenous matters but also the

designation of government employees and jurisdictions of protection and settlement of

indigenous populations that might be discovered in the future. However, over time, the

state handed over to the Catholic Church the majority of responsibility of dealing with the

indigenous community.

Notwithstanding these significant policy initiatives based on the underlying

philosophy of assimilation and integration of the indigenous community into the Brazilian

20 Carlos Frederico Mares de Souza Jr., "On Brazil and Its Indians," in Donna Lee Van Cott (ed.), Indigenous Peoples and Democracy in Latin America (New York: St. Martin's Press, 1995), p.216.

21 Elizabeth Allen, "Brazil: Indians and the New Constitution," Third World Quarterly (London), vol.ll, no.4, October 1989, p.l50. Jose Bonifacio attacking vehemently the institution of slavery and arguing on its absurdity had stated: "Twenty slaves require twenty hoes, all of which could be saved by one plow." On the social corrosiveness of slavery he had said: "He who lives on the earnings of his slaves lives in indolence, and indolence brings vice in its wake." Quoted in Hubert Herring, n.l2, p.686.

22 Carlos Frederico Mares de Souza Jr., n.20, p.216.

48

society, a new direction was given to the indigenous policy beginning from 1850s.

Revoking the colonial policy, the new approach evidenced concerns with respect to

indigenous lands. On 18 September 1850 was enacted Law 601 establishing new juridical

concepts regarding unoccupied lands, registration of land deeds and the indigenous

reserves. Through this legislation, for the first time Brazil guaranteed rights to the

indigenous people over the lands they occupied. 23

These innovative instrumentalities· providing for the legal status of the indigenous

community including the inherent rights over their ancestral lands did not usher in a new

lease of life for the natives. While the law provided for the integration of natives and

rights over their lands, the state practice continued to work in the opposite direction.

It is against this background one should examine the first Brazilian Republican

Constitution of 1891, following the historic developments such as the abolition of slavery

in 1888 and the founding of the Brazilian Republic in the succeeding year. Curiously

enough, the 1891 Constitution has no reference whatsoever to the indigenous community.

It is even more curious because in the constituent assembly, which drafted the

Constitution, questions such as the status of the indigenous community and their rights

over their lands were discussed at great length. The military proposed a federal set up for

the constituent states and a confederational organization for the indigenous community

residing in Brazil, each one with sovereignty over its previously demarcated territory. This

proposal had no influence on the elaboration of the Constitution nor was it incorporated

into any civil code. The predominant view in the constituent assembly was that any

juridical system concerning the indigenous community and its proprietary rights will have

to be delegated to the constituent states of the federation, and cannot be the responsibility

23 For details see ibid., p.217.

of the Republic.24

Evolution of SPI

49

The advent of the 20th Century apparently marked a departure in Brazil's policy

orientation towards its indigenous people. In an effort ostensibly to undo the legacies of

the colonial administration, and at the same time correct the inadequacies of the policy

overtures of the Portuguese Crown, new initiatives were made regarding the indigenous

people. These initiatives are significant more so because they came in the wake of

inconclusive debates on the question of the natives in the national assembly that drafted

the 1891 Constitution. As has been mentioned in the previous section, the debate largely

revolved around two different perspectives. One attributed to the military supported a

unitary state under the new republic and sought the federal government to deal with the

indigenous question. The other, a liberal perspective, sought authority to the constituent

units of the federal republic and argued in favour of the provinces evolving policy

measures in respect of the indigenous community. Neither of these perspectives could

sufficiently influence the national assembly in order that some legal instruments to deal

specially with the indigenous community could be incorporated in the Constitution. All

that could be achieved was a general consensus that underlined the need for a special law

for indigenous people.

The imperatives for enacting a special law on the natives around this time are not

far to seek. Mention has been already made in the previous section that during the time of

the Portuguese colonization, especially in its earlier phase, the Portuguese Crown was

hardly interested in its colonial possessions in South America or, at least not as much as it

was towards its other colonies elsewhere. As it was not a productive enterprise, for several

24 Ibid.

50

decades the colonial process in Brazil remained primarily a private initiative. So much so,

during most parts of the 17th and early 18th centuries, armed bands of slave traders in

collusion with unscrupulous pioneering colonists penetrated indiscriminately the frontier

regions in search of precious metals and indigenous natives whom they enslaved. By the

end of 1700s, as a consequence many indigenous communities were decimated by

diseases and ravaged by raids wrought by the bandeirantes. In these decades of predatory

colonization, the Jesuit missionaries with their primary interest in evangelical activities

championed the cause of the indigenous people by organizing them in aldeias. The

resultant attitudinal conflicts between them and the Portuguese colonists became a raging

issue which in the end led the Portuguese government to resort to the extreme step of

expelling the missionarj.es from Brazil. The onset of the sugar-cane cycle, and the

subsequent mineral and coffee cycles coinciding with the end of the era of the Empire

placed emergent independent Brazil in an enviable position by the time the new republic

was inaugurated in 1890s. By the late 19th and early 20th Century the unexplored frontier

regions particularly in the north and northwest of the native territories began to assume

immeasurable economic significance. Accordingly, the question of the indigenous

community assumed a new dimension. In the words of one observer:

Until the 19th century, the Indian question, to all intents and purposes, was a question of manpower. It then became a question of territories; those of which could be put to use, and especially those with extremely rich underground mineral deposits.25

So much so, the policy orientation and the prevailing imperatives underlined that the state

should put an end to conflicts between settlers and natives in order that it would pave the

way for the opening up and settling of the interior more effectively.

25 Beatriz Perrone-Moises, "The 1988 Constitutional Battle," in Marie Leger (ed.), Aboriginal People: Towards Self-Government (New York: Black Rose Books, 1994), p.l23.

51

This change in the policy perspective took a concrete shape in the law (Decree No.

8.072) enacted in 1906 which provided the basis for the creation of a federal public

service agency for the indigenous community. Actually set up four years later, the agency,

Servico de Protecao aos Indios e Loca/izacao de Traba/hadores Nacionais (SPILTN,

Indian Protection Service and Localization ofNational Workers), was enjoined by law to

"protect" the indigenous people by preserving their culture, and guaranteeing their lands

on behalf of the state.

The official version for the creation of the SPILTN, as Brazilian anthropologist

Darcy Ribeiro points out therefore underscored its prime objective as one of providing

nation-state services to a segment of the Brazilian population and thereby mediating

through the agency the potential "interethnic conflicts and supervising the incorporation of

Indian peoples into the Brazilian nation." This official version went even farther to deny

categorically that the "principal motivation" was "the growing awareness of vast frontier

regions that needed taming." In that sense, as Ribeiro argues the SPILTN "began [as] a

positivist kind of proteGtion activity towards the Indians. "26

It may be recalled that this "positivist" approach was by and large the position the

military had maintained in the national assembly that drafted the 1891 Constitution. No

wonder, . a Brazilian army officer, Colonel (later Marshal) Candido Mariano da Silva

Rondon was appointed as the first director of SPILTN.27 In the early years of its

26 Quoted in Antonio Carlos de Souza Lima, "On lndigenism and Nationalism in Brazil," in Greg Urban and Joel Sherzer (ed.), Nation-States and Indians in Latin America (Austin: University of Texas Press, 1991), p.238.

27 Most writers praise the monumental work of Rondon on the basis of nearly two decades of association with the Brazilian telegraph service and his military and scientific expeditions in the interior of the country. According to some, it was he who "convinced" the federal government to set up an agency (lnspectoria Federal de Protecao Fraterna aos Indigenas: Federal Inspectorate for the Fraternal Protection of the Indians) as he was "appalled" by the many abuses on these people that he personally witnessed during his sojourns throughout the frontier, and was firmly of the view that the government was obliged to provide for the survival and the eventual integration of the indigenous community into Brazilian society. For a

52

establishment SPIL TN under the stewardship of Rondon set out to contact and bring under

its direction as many indigenous communities as possible. In less than two decades of its

existence, the federal agency with generous funding set up sixty-seven Indian posts

"without a single Indian being killed or wounded by its agents. "28 Under the banner of

humanism, Rondon coined the motto that soon became associated with his agency: "To

die if need be, to kill never," reflecting the orientation ofthe SPILTN in these early years

which was genuine concern for the protection of its wards.

While the protectionist activity as exercised by the state through SPIL TN was

intended to guarantee life and liberty of the natives and secure the possession of land for

them, it soon became apparent that these were not the real objectives of the agency. Over

time, protection of the natives by the state was interpreted to mean that the law had placed

them in the dubious status of being "relatively incapable"; and the state therefore should

act through SPIL TN to demarcate their lands, transfer them to new territories when

necessary and oversee their protection. Indications of this interpretation became obvious

when for the first time the Brazilian Civil Code came into force in 1916. Article 6 of the

Civil CotJe pertaining to the indigenous community established that the natives have

"relative incapacity to practice the acts of civil life" and gave them the status of minors

betw1 :en the ages of sixteen and twenty-one to be placed under a "regime of tutorship."

corri>rehensive description of Rondon's activities see Shelton H. Davis, Victims of the Miracle: Development and the Indians in Brazil (Cambridge: Cambridge University Press, 1977), pp.2-5. In an ur..published monographic research Antonio Carlos de Souza Lima writes to say that Rondon's success in s· ;tting up telegraph lines in the interior accomplished a threefold task: (i) it resulted in the exploration of the interior and the linking up of distant points within the country (ii) it helped to "nationalize" the Indians and tum them into Brazilians; and consequently, (iii) it placed the Brazilians on the frontier, securing the wilderness with rural workers who could act as guardians of the strategic supports of the nation, namely, the railways and telegraph lines. See Antonio Carlos de Souza Lima, Aos fetichistas, ordem e progreso: um estudo do campo indigenista no seu estado de formacao (Rio de Janeiro: Museu National, 1985), p.428.

28 Available official data show that SPILTN's annual budget between 1910 and 1930 ranged from a low of CR$ 3,880,000 increasing annually on an average of CR$ 1,000,000. These figures are quoted in Seth Garfield, "'The Roots of a Plant that Today is Brazil': Indians and the Nation-State under the Brazilian Estado Novo," Journal of Latin American Studies, vol.29, 1997, p.75l.

53

The same article established that their "incapacity" would cease if and when they became

integrated into civil society. 29 In 1928, by the legislative decree 5,484 the Indians were

placed under a federal wardship system (tutela) administered by the SPI aiming at

protecting indigenous groups--often unprepared or unfamiliar with the Brazilian socio­

economic system--from exploitation.30

The integration of the indigenous people continued as a principal theme of

subsequent legislations, but was often subordinated to other national interests. In 1934, the

SPILTN, now known as the SPI was placed under the ministry of war for two

considerations--<>ne, to integrate the indigenous people living in the frontier areas and to

preserve the international boundaries of Brazil before both the border areas and their

population merged with another country.

Following the years of turmoil in the decade of 1930 that brought to fore the

advent of Getulio Vargas and his Estado Novo in the political horizon of Brazil, the

indigenous policy underwent a metamorphic change. The indigenous communities living

predominantly in the remote frontiers were suddenly summoned to the centre stage. Of the

several factors that brought the indigenous communities to prominence mention must be

made of at least a few such as Vargas' own efforts to consolidate his power and his

29 The process of integration as defined by Article 6 reads as follows: "When they [the indigenous people] establish intermittent or permanent contacts with the civilization, keep some of their native lifestyle but accept, progressively, some of the habits and lifestyles of the national society." Quoted in Barroso, n.7, p.669. Interestingly, the Criminal Code however makes no distinction in regard to criminal infraction of the indigenous people. They are covered only in the general provision that absolves criminal responsibility when the culprit has, "incomplete or retarded mental development." In other words, ironically there is no previous exclusion of criminal responsibility when the agent of the crime is of the indigenous community, who by the Civil Code is declared as incapacitated in terms of civil matters.

30 The decree was praised by many. According to Oliveira Sobrinho, a jurist of that period the decree was "a code of rights and guarantees to this unhappy, plundered and suffering ways of our indigenous peoples. Their rights were not completely recognized for four centuries, and were stubbornly and hypocritically not complied with; they were defrauded, either by slackness and abuses of the governors, or by the criminal interests and the tyranny of the colonizers and Portuguese adventurers."

54

renewed attempts to redefine the national territory. Soon after the formal announcement of

Estado Novo, Vargas launched what came to be popularly known as "March to the West,"

a state-led project to settle and develop Brazil's hinterland principally the northern and

central western regions. As Vargas himself noted, the "March to the West" was intended

to ensure the nation's prosperity. In his words: "(T]o the vast and fertile valley ... entrails of

the earth ... from which the instruments of our defence and industrial progress will be

forged." 31

Soon after the launching of the "March to the West", Vargas refurbished SPI by

increasing sizably its annual budget for provision of educational and health services for

both Indian and backlander alike and for networks of communication and transportation in

the frontier regions. He also set up the Conse/ho Naciona/ da Protecao aos Indios (CNPI,

National Council for the Protection of Indians) in the year 1939 and appointed Rondon as

head of the bureau. The newly established bureau was charged to promote public

awareness of indigenous culture and state policy.

In tum, the SPI went about demarcating the lands of the natives as mandated by

the 1937 Constitution irrespective ofwhether such demarcation would sustain their way of

life. The SPI and CNPI were of the view that the Indian life style and identity were only

transitory, and that the process of integration would bring about "ineluctable ·progression."

So much so, it was believed that the natives would evolve from the "stages of

primitivism" to "scientific ... rationalism."32 The SPI had envisioned that the natives by

dividing their reserved lands into individual parcels and residing with non-natives in the

newly established agrarian colonies would in the final analysis bring about the

31

32

Seth Garfield, n.28, p.750.

Ibid., p.752.

55

consummation of the "March to the West." Eventually, this would lead to the gradual

integration of the indigenous community into the Brazilian society. At the height of the

campaign ofthe "March to the West", SPI itself stated:

We do not want the Indian to remain Indian. Our task has as its destiny their incorporation into Brazilian nationality, as intimate and complete as possible.33

The process of integration, it was underlined, would have double advantage. It would not

only benefit the natives, but the nation as well because it would bring additional valuable

resources to the economic well being of the larger Brazilian society. Most apologists of

Estado Novo too saw this approach as one of "killing many birds with one stone." Some of

them even believed that these policy measures would in the final analysis, achieve "forest,

floral and faunal conservation. "34

Ironically however, Estado Novo's approach to the indigenous question literally

speaking "killed" only one "bird". In the sense, the paternalistic policies endorsed by

Getulio Vargas including the wardship system (tutela) allowed for concerted disregard for

indigenous communities' concerns. For one, the Estado Novo had reduced all of them to

the status of silvico/as (forest-dwellers) irrespective of their diverse cultures, languages,

dialects and relationships to the Brazilian society that existed among these communities.

Furthermore, bureaucratic corruption, local elite opposition and indigenous resistance had

systematically riddled the state's lofty goals and legal annour. In sum, as one writer

observes:

33

34

Ibid.

To be sure, the state's symbolic embrace of the Indian represented more of a bear hug. Smothered by government rhetoric, Indians would have to struggle to express their own

Antonio Carlos de Souza Lima, n.26, pp.244-45.

56

views regarding their land, community, culture and history.35

Such a "struggle to express" occurred for the first time before long in the northern

state of Mato Grosso. In 1941, when an SPI team made forays into a Xavante natives'

village at Rio das Mortes and established a post ostensibly for purposes of dispensing

tools and clothes, the Xavantes rose in rebellion, killing the chief of the SPI team along

with five of his assistants. Ever since, similar struggles became sporadic in other parts of

the north though there were some stray instances where some indigenous community fell

an easy prey to Vargas' paternalistic policy overtures. 36

At the same time, SPI too had lost its idealistic moorings, and by the beginning of

1950s a process of administrative decline became apparent. The decline was the result of

corruption, undue usage of the Indian lands because of paramount economic interests in

the frontier and more startlingly the destruction of native cultures and the cover up of such

questionable activities. As one writer points out "the selling of certificates" of non-

existent Indian lands by SPI ''made possible their extermination and made legal usurpation

of Indian lands.'m According to one estimate, by the mid-20th Century, 87 distinct

3S Seth Garfield, n.28, p.752.

36 Amongst the communities, which fell a prey to the paternalistic policy overtures were the Karaja, X_erente and Tembe. Not all indigenous communities could afford to defy the state. Indeed they may not have been such willing participants for the Vargas regime had they not been exploited by rubber barons, labour contractors, missionaries or other indigenous communities. For their precarious lives, the 'March to the West' offered some possibility of employment, state protection, assistance and a standing in society. A letter written to Vargas by a Tembe Indian Lirio Arlinda do Valle in September 1945, illustrates their acquiescence. The letter not only thanked the president but, more importantly, sought an assignment as an SPI inspector of Para (a position hitherto occupied by a white official), which he was given. From then on, Valle did all he could to support to the Vargas regime. He vowed to integrate Indians and make them 'respectable Brazilian citizens', collapsing the distinction between indigenous groups. But this all out support for the Brazilian nation and his pledge that 'all the Indians are at Brazil's service' involved a personal agenda and a furthering of the indigenous interests. As Seth Garfield rightly says, "even while playing their assigned role as Indians, some indigenous people sought to edit the script .... Valle's appeal reveals how some Indians embraced and promoted the state's project, while seeking to amend its format." See ibid., p.767.

37 Carlos Frederico Mares de Souza Jr., n.20, p.218. An investigation in 1968 found evidence of murder and deliberate introduction of diseases and poison to Indian communities among other abuses. For details see Laura Putsche, "Changes in the Frontier Development and the New Indian Resistance in Brazil," Humboldt Journal of Social Relations (Arcata, CA), vol.l9, no.2, 1993, p.l39.

57

indigenous communities had been wiped out, about 37.8 per cent of the total indigenous

people had all but disappeared from Brazil.

All these untoward developments in the backdrop of widespread adverse

international publicity portended the acute need for devising a different strategy especially

when the Brazilian military had just then staged a coup and taken the reins of power. It

had become evident even in the early years of military rule that the indigenous question

would be dealt with in the new constitution to be promulgated in 1968. Meanwhile,

following an official investigation, (findings of which are contained in the so called

Figueiredo Report), the military government took the most drastic step of purging a large

number of SPI personnel on charges of corruption, inefficiency and conspiracy. 38

Policy Innovations under Military Regime

Mention has already been made in the previous section of the ignominious

circumstances under which the five-decade-old federal agency, SPI was wound up in the

wake of the military coup in 1964. Shortly thereafter, when Arturo da Costa e Silva

assumed office as the second successive president of the military regime, the adoption .of

Decree Law 5,371 in 1967 provided for yet another federal agency, Fundacao Nacional

do Indio (FUNAI, National Indian Foundation) on the ruins of SPI. At the time of its

creation, FUN AI was assigned what appeared to be more or less the identical tasks of its

predecessor agency, SPI. Among others, it included "carrying out surveys, studies and

scientific research" on the indigenous communities and at the same time guaranteeing

''basic education" necessary for the "progressive integration" of the indigenous people in

38 Then Minister of Interior, General Albuquerque Lima at a press conference held in Rio de Janeiro denounced the SPI following which 134 of the SPI personnel were charged, 200 dismissed and another 34 were relieved of their official responsibility. For details see Shelton Davis, n.27, pp.l0-11.

58

the national society.39

Soon however, it became evident that the new federal agency FUN AI was invested

with much more authority and jurisdiction than the SPI in dealing with the indigenous

community. In the process, over the years it even became a vital instrument of the

regime's policy measures regarding the indigenous communities and their lands.

Indications of its pivotal role in arbitrating on indigenous concerns became apparent when

FUNAI, unlike its predecessor SPI, was placed in the more powerful and sensitive

ministry of the interior and its chief, a political appointee, was chosen by its minister.

Staffed internally by career officials, many of whom were apparently committed to the

cause of the indigenous community and its concerns, FUNAI from its inception contracted

professional anthropologists for carrying out surveys, studies and scientific research.

The real objectives behind the establishment of FUNAI became known once the

new constitution was promulgated by the military in 1968. By then it had become obvious

that the Brazilian military informed by a geopolitical strategy evolved by the Esco/a

Superior de Guerra (ESG, the Superior War College) had committed to an aggressive

policy of accelerated economic development largely through the import substitution

industrialization.40 One of the important planks of this inward-looking economic

development . strategy was a well-concerted policy initiative for the demographic

occupation of the indigenous lands and the economic exploitation of their resources.

To this objective, the military crafted an indigenist policy the underlying thrust of

which was two-fold: one, to open up the frontier lands of the indigenous community for

39 Federative Republic of Brazil, Indigenous Brazil (Brasilia: National Press, 1992), p.ll.

40 For details of the ESG's doctrine of national security and economic development strategy for Brazil, see A. de Arruda, A Escola Superior de Guerra (Sao Paulo: Edicoes GRD, 1983) and G. do Costa A. Silva, Geopo/itica do Brasil (Rio de Janeiro: Libraria Jose Olympio, 1967).

59

large-scale economic exploitation of natural resources; and two, to administer the social

consequences of the encroachment of the new frontiers. In an effort to put into effect these

unprecedented initiatives, the military first of all through its Constitution promulgated in

1968 appropriated all the indigenous lands under the guise of what came to be known as

''the patrimony of the Union." Article 4, IV of the 1968 Constitution declared that ''the

lands occupied by forest-dwelling aborigines" remain "the patrimony of the Union. "41

Presumably aware of the social consequences of such a .blanket declaration, in a

subsequent provision in the Constitution it was stated: "Lands inhabited by forest­

dwelling aborigines are inalienable under the terms the federal law may establish; they

shall have permanent possession of them, and their right to the exclusive usufruct of the

natural resources and of all useful things therein existing is recognized."42

Through these two key provisions the military established that the indigenous

community throughout Brazil would have no legal proprietary rights to the land and they

would enjoy merely the right of "possession" and ''usufruct" of the land resources. In

reality, even these rights of "possession" and ''usufruct" were limited for more than one

consideration. For, Article 89 of the Constitution empowered the National Security

Council "to indicate the areas that are indispensable to the national security."43 And in the

process it had established the right of the government to appropriate lands in the

"possession" of the indigenous community. Even the "exclusive usufruct" rights of the

indigenous community as affirmed in Article 198 was not all that exclusive because

Article 168 laid down that mineral deposits and hydropower resources generated from

41 For the text of Article 4, IV, of the 1968 Constitution, see Blaustein and Flanz (ed.), Constitutions of the Countries of the World (1982).

42 Ibid.

43 Ibid.

60

such lands do not belong to the indigenous community in "possession" of these lands. At

best, the indigenous community would receive a share in the revenue accruing on account

of the natural resources in consideration of their "usufruct" rights. What is even more,

such revenue sharing would have to be through FUNAI. Above all, the 1968 Constitution

under Article 8, XVII, h, conferred upon the federal Congress to legislate not only on

mineral resources but also on forest, hunting and fishing areas which could include even

lands occupied by the indigenous community.44

These extraordinary principles and provisions enshrined in the Constitution were

elaborated subsequently in the Estatuto do Indio, (the Indian Statute, Law 6,001 of 19

December 1973). The Estatuto contains a series of measures ostensibly intended to protect

indigenous community in respect of its possession and exclusive usufruct land rights and,

at the same time, create a system of welfare assistance for these people. Like Article 198

of the Constitution, Article 22 of the Estatuto explicitly reiterated the "inalienable" rights

of the indigenous people over the lands they inhabited. However, in addition to the "lands

inhabited", the Estatuto provided for different categories of "reserved" lands which are

"not to be confused with those in immemorial possession of the native tribes" {Article

26).45 It further divided "reserved" lands into "Indian reserves" and "Indian parks",

thereby creating a technical category intended to encroach upon what the Constitution

defines as "occupied lands".

These complex legal provisions, as one writer observes, had "a double-edged

rationale ... detrimental to the interests of the Indians. Indeed, they appear to be at least as

much concerned with· consolidating the federal government's jurisdiction over land and

44 Ibid.

45 See official text in English published by FUN AI.

61

resources as they are with preserving the Indians' ancestral rights. "46

Other restrictive measures included provisions under Article 21 of the Estatuto

according to which lands "abandoned" by the native community "shall revert to the full

ownership of the Union."47 This unusual provision made the indigenous community pawns

in the power struggle between the state and the centre. As one observer states, thanks to

this provision the land rights ofthe indigenous community, have been

a long standing tug-of-war between the states and the federal government. It is reasonable to expect continued state resistance to the further recognition of Indian occupancy or to the creation of reserves since, under the new Indian Statute, land reverts to the federal government when no longer occupied by the natives.48

The Estatuto also provided a standard procedure for determining the areas subject

to the legal regime of Article 198 of the Constitution. Article 19 of the Estatuto states that

the rights of the indigenous people "to have their land protected precedes the obligation of

the government to demarcate it."49 The responsibility for the demarcation of the

indigenous lands was assigned to FUNAI which according to the Estatuto was expected to

complete the process within a predetermined time period.

Aside from the question of the indigenous lands and of the ''possession" and

"usufruct" rights of the indigenous community, both the 1968 Constitution and the 1973

Estatuto do Indio had contrived policy measures for the assimilation of the indigenous

46 Marc Pallemaerts, "Development, Conservation, and Indigenous Rights in Brazil," Human Rights Quarterly (Baltimore), vol.8, no.2, August 1986, p.38l.

47 For text of Article 21, see n.45.

48 Grasmick, "Land and the Forest-Dwelling South American Indian: the Role of National Laws", Buffalo Law Review (Buffalo}, vo1.27, no.7,59, 1978, p.778.

49 For full text of Aricle 19, see n.45.

62

community into the Brazilian society. Article 8, XVII (as subsequently amended in 1969)

provided that "the Union shall have the power to legislate upon .. .incorporation of forest­

dwelling aborigines into the national community." The £statuto too echoes these

objectives. It speaks of "integrating" the indigenous communities "progressively and

harmoniously, in the national communion." For this purpose, the Estatuto classified

indigenous communities into three legal categories: (i) "isolated", (when they live in

unknown groups or groups of which there is little and vague data through scattered

contacts with elements of national .society); (ii) "integrating'', (when they establish

intermittent or permanent contacts with civilization, keep some of their native life style

but accept progressively some of the habits and life style of the national society); and (iii)

"integrated", (when they are incorporated to the national society and granted full civil

rights, although they may preserve uses, customs and traditions of their culture).50

Accordingly, the following prerequisites were laid down: (i) attainment of 21 years of age;

(ii) having knowledge of Portuguese language; (iii) ability to work; and (iv) a reasonable

understanding of the uses and customs of national society. Besides this process, the

president of the federal government through FUN AI also may declare an entire indigenous

community as integrated upon the request of its members, provided that community had

demonstrated its integration into the national community.

Drawing upon the Civil Code of 1916, the £statuto laid down a regime of treating

the indigenous people (silvicolas, forest-dwellers) as "relatively incapacitated" and

therefore subject to special tutelage and FUNAI was assigned to exercise the legal regime

of tutelage. In the process, FUN AI was invested with extraordinary power and authority

over the indigenous community. Such tasks as protecting and representing the interests of

the indigenous people were assigned to FUNAI. In fact, the Estatuto enjoined FUNAI ''to

so See Article 4, II, £statuto do Indio, 1973.

63

assume judicial or extra-judicial defence of the rights of the forest-dwellers."s 1 Under this

provision, if FUNAI failed to fulfill its duty, there existed no other recourse to the

indigenous community. Again, the Estatuto stipulated that "the native community are

legitimate parties for the defence of their rights in justice". Yet, they cannot themselves

seek redress because only FUNAI can take legal proceedings on their behalf . As one

writer observes:

Indeed the general rule is that in cases of "relative incapacity" the guardian?s role is only to assist the ward in the free expression of his own will, not to act as a substitute for a ward. Yet, the avowed policy of FUN AI is not to express and defend the interests of the Indians as defined by the Indians themselves, but rather to balance these interests against the "national interest" of the Brazilian state.s2

Armed with these legal devices the military pursued an aggressive policy of "developing"

the frontier area into the national economy. Plano de Integracao Nacional decreed in June

1970 embarked on an ambitious programme for the development of the Amazon region

with the assistance of multilateral lending agencies such as World Bank, Inter-American

Development Bank and the United States for International Development. The preliminary

step in this grandiose programme was the building of Trans-Amazonian Highway to make

the frontier areas accessible to economic exploitation. This road building scheme also

provided for resettlement of thousands of landless peasants along the highways. Although

this was done on the claim by the military that it was "without prejudice to ... the rights" of

the indigenous people, numerous indigenous communities were in fact dispossessed of

their land by this scheme. s3

Sl Article 35, Estatuto do Indio, 1973.

S2 See Marc Pallemaerts, n.46, p.379.

53 Justifying the scheme, the military president Medici, it appears had stated that his government's policy was to match the "[m]en without land in the Northeast. Land without men in the Amazon." Quoted in

64

Backlash of Military Policy and Birth of Indigenous Movements

The years following the promulgation of the Estatuto do Indio did not augur well

for the military. The number of conflicts that arose between the indigenous community

and the military government however sporadic were nonetheless serious. So much so,

before the end of the decade of 1970 the indigenous people of Brazil began to organize

themselves into protest movements, seeking redressal outside the established legal and

constitutional framework.

Reasons for such conflict are not far to seek. Foremost among them were the

restrictive provisions both in the 1968 Constitution and the 1973 Estatuto. At first sight

both the legal instruments appeared to contain a series of measures intended to protect the

indigenous communities' interests in terms of their economic livelihood and cultural

survival. However, on closer examination of the policy initiatives taken by the successive

military administrations, it is apparent that both the Constitution and the Estatuto were

inspired more to meet the military's developmental strategy than to offer any amelioration

to indigenous people. As has ~een pointed out in the earlier section, both the legal

instruments contained discriminatory clauses such as FUNAI's legal wardship of the

Indians who are defined as ''relatively incapable"; assimilationist clauses that take

"lndianness" to be a transient feature; exproprietary clauses such as non-recognition of

landed property of the indigenous people, related provisions that indigenous groups can be

removed from their habitat on grounds of national security or for undertakjng public

developmental works etc.

Further, even the provisions enshrined in the two legal instruments enjoining

Shelton Davis, n.27, p.39. In a similar vein, General Fernando Ramos Pereira, then Governor of the state of Roraima had said: "I am of the opinion, that an area as rich as this-with gold, uranium and diamonds­cannot afford the luxury of conserving half a dozen Indian tribes who are holding back the development of Brazil." Quoted in Shelton Davis, n.27, p.l03.

65

FUNAI to deal with the indigenous community in respect of their land rights remained

largely unfulfilled. For one, the demarcation of indigenous lands which was to have been

completed within the stipulated five year period following the promulgation of the

£statuto in 1973 proceeded at an extremely slow pace, and usually only when forced by

emergency situations. According to estimates, no more than a mere fifteen per cent of the

identified indigenous lands were legally demarcated and ratified between 1973 and 1981.54

The resulting disaffection in the indigenous community led to land conflicts and

mobilization of the indigenous .organizations and their support allies/groups demanding

the fulfillment of the protective clauses of the £statuto. Instead of responding positively to

these well-grounded demands, the military under increasing political pressure viewed

these conflicts as a threat to national security. More than before, it began intervening

directly on the indigenous issue. In turn, this led the military to reshape the administrative

mechanisms for granting the official recognition to the lands of the indigenous

communities. The decision-making power for the demarcation of the Indian lands was

gradually taken away from FUNAI which the military considered too vulnerable to

political pressures from the indigenous communities. By the beginning of 1980s, the

demarcation task was entrusted to an inter-ministerial work group headed by the Interior

Ministry and the Ministry of Land Affairs under the authority of the National Security

Council. The mandate of the work group explicitly underlined that while deciding on

demarcations, existing economic enterprises of third parties in the indigenous areas should

be taken into account. This meant that the military was unwilling to relent on land areas

that have been already illegally encroached upo~ by land speculators and mining

enterprises. In addition to these, the Brazilian military had launched massive

54 For details see J.P. de Oliveira Filho and A.W. B. de Almeida, "Demarcacao e reafirmacao etnica: un ensaio sobre a FUNAI", in J.P.de Oliveira Filho (ed.), Os Poderes e as Terras dos Indios (Rio de Janeiro: Museu Nacional, 1989), pp.l5-20. Also see J.P. de Oliveira, "Contexto e horizante ideologico: reflexoes sobre o Estatuto do Indio", inS. Coelho dos Santos et al., (eds.), Sociedades Indigenas eo Direito (Brasilia: Editoria da UFSC, 1985), p.22.

66

developmental activities ranging from energy generation, cattle-ranching, lumbering and

mining activities. These activities impacted adversely on the indigenous people because

they involved relocation of an entire community from its original habitat, restricting the

area of a given indigenous population as well as inclusion in treaties of provisions for

usurpation of resources for national security consideration. More known of these

grandiose development projects are the Grande Carajas programme, integrated

development ofXingu river valley and Polonoroeste.55

With these major economic projects on the anvil, the military government began

considering seriously the need for appropriating all the indigenous lands as expeditiously

as possible. It is for these considerations, the federal government under president Emesto

Geisel drafted in 1978, what some writers describe as the "infamous emancipation

decree". 56 Publicly defended by then Minister of Interior, Rangel Reis, the "emancipation

decree" sought to declare all the indigenous people as free citizens of Brazil. Though

ss Besides the Grande Carajas and the Polonoroeste, the projects threatening the livelihood of the indigenous people at that time were the numerous hydro-electric dam projects. The Polonoroeste project aimed at massive development for the state of Rondonia and western Mato Grosso. Funded by the World Bank, it took up the construction of paved roads and the colonization of vast areas. The Grande Carajas project, another huge development undertaking involved southern Para and northern Maranhao, an immense area circumscribed by Xingu river, the Paranaiba river, the eighth parallel south, the Amazon river and the Atlantic Ocean. It entailed large scale mineral exploitation, steel and iron industries, lumber extraction, cattle-raising, agriculture and hydro-electric projects. For further details of these projects, see the following: Anthony Hall, "Making People Matter: Sociology and Development in Brazilian Amazonia", International Journal of Contemporary Sociology, vol.30, no.1, 1993, pp:63-88; P.L.Aspelin and S. Coelho dos Santos, Indian Areas Threatened by Hydroelectric Projects (Copenhagen: IWGIA document 44, 1981); L. Bodard, Green Hell: Massacre of the Brazilian Indians (New York: Outerbridge and Dienstfrey, 1971); S. Bunker, "Amazonian Frontier Expansion: 1970-1980", Cultural Survival Special Report-Brazil (Petersborough), no.1, 1979, pp.44-48; S. Branford and 0. Glock, The Last Frontier: Fighting Over Land in the Amazon (London: Zed Books, 1985); B.J. Cummings, Dam the Rivers, Damn the People: Development and Resistance in Amazonian Brazil (London: Earthscan Publications, 1990); R. Dasmann, "National Parks, Nature Conservation, and 'Future Primitive'," The Ecologist, vol.6, no.5, 1976, pp.l64-78; and J. Hemming, Amazon Frontier: The Defeat of the Brazilian Indians (Cambridge: Harcard University Press, 1987).

56 Alcida Rita Ramos, "Cutting through State ancl Class: Sources and Strategies of Self­Representation in Latin America", Serle Antropologia, Departamento de Antropologia, Universidade de Brasilia, 1999, p.11; see also E.V. Castro, "Background: the Emancipation Issue", Cultural Survival Special Report-Brazil (Petersborough), 1979, pp.20-25.

67

seemingly progressive the hidden agenda of the Geisel government was to ''wash its hands

off the indigenous peoples" and at the same time ''to release indigenous lands from the

exclusive usufruct of the Indians and open them for development."57 But it was couched in

a manner that made it seem as though the Geisel government was seeking to move "a

further-perhaps final-step towards the total integration of Indians, in conformity with

the assimilationist policy of the country since colonial times."58

Apparently, the indigenous community was unprepared to either endorse or

welcome the emancipation decree. For, as one observer writes, they recognized that

acquiescence to the emancipation move would mean "the elimination of special

protections" and "an end to the communal ownership."59 For, as the writer rightly argues:

Since this [communal ownership] is a critical feature of many indigenous societies, the law [emancipation decree] would have resulted in outsiders buying up or taking over their land.60

So outraged were the indigenous communities, the proposal was abandoned in 1979 under

strong public protest. Unmoved, the military through FUNAI devised a new scheme for

determining the degree of "Indianness" based on a variety of criteria in the same year.

Under this scheme, those falling on the lower half would be considered non-indigenous

and so, not eligible for protection from FUNAI. This move also had to be abandoned on

account of public opposition.61

S1 Ibid.

S8 Ibid.

S9 Laura Putsche, n.37, p.144.

60 Ibid.

61 Besides these, the military ordered that anthropologists, national and foreign, should not enter indigenous territories, particularly in areas that become sensitive at times, such as Xingu Park, Yanomami territory or the Tikuna villages. Authorizations to enter these areas required the prior approval of the Ministry of Interior. In 1983 a decree was passed that in effect put the Indians under the control of the

68

It is in the backdrop of these moves and countermoves on the part of the military

that the indigenous movement gathered significant momentum. The role of the non­

indigenous support groups towards this effort was no less. Capturing the mood of the

indigenous people at the time, one scholar graphically puts it

the emancipation decree worked as a catalyst in bringing together into the same arena a wide gamut of professionals .... Taking turns as solo and ·choir on the politically inflamed stage of indigenism, they alternated with Indian leaders, who seemed to spring up on the public scene as if by magic, to monopolize the media. It was a heroic moment of present day indigenism.62

The upshot of this "heroic moment" was the birth of Union das Nacoes Indigenas (UNI,

Union of Indigenous Nations) in April 1980. It was the first-ever national organization

directed exclusively by the indigenous people. "It was", as one writer states, "conceived

as a national Indian organization, a symbolic point of reference for all Indian peoples of

Brazil."63 Initiatives to launch an indigenous peoples' organization was mooted in April

1980 when, a group ofyoung Indian students ofBrasilia proposed the creation of a nation­

wide indigenous organization called UNIND (Union das Nacoes Indigenas). These

students belonging to groups such as Xavante, Terena, Bororo, Patascho and Tuscho

wanted to organize indigenous efforts to focus on the issue of a better indigenous policy. 64

Closely following this initiative in Brasilia, an Indian assembly in the town

of Campo Grande, Mato Grosso do Sui was held. At the end of this meeting, another

National Security Council. For details see, Alcida Rita Ramos, n.3, pp.155-169.

62 Alcida Rita Ramos, "The Hyperreal Indian", Critique of Anthropology (London) vol.14, no.2, June 1994, p.156.

63 Ana Valeria Nascimento Araujo Leitao, "Indigenous Peoples in Brazil; The Guarani: a Case for the UN," Cultural Survival Quarterly, vol.l8, no.1, 1994, p.48.

64 Alcida Rita Ramos, "Indigenous Movement in Brazil: A Quarter Century of Ups and Downs," Cultural Survival Quarterly, vol.21, no.2, Summer 1997, pp.S0-51.

69

version ofUNI was founded, the objectives of which were to

promote the Indians' autonomy and auto-determination, reclaim and guarantee the inviolability of their lands and assist the Indians in knowing their rights by drawing and putting into practice cultural and community development projects.65

In July of the same year, representatives of fifteen indigenous communities claiming

themselves as belonging to different "Indian Nations" gathered to discuss what they called

their "creation of the Brazilian Indian Federation." The participants pledged allegiance to

the UNI, now considered to be the outcome of the Brasilia UNIND and the Mato Grosso

Federation.

Prior to the emergence of the UNI as an overarching national indigenous

movement, even during the 1970s the indigenous communities in different parts of Brazil

had formed what were then known as "indigenous assemblies" sponsored by the Catholic

Church of Brazil. As far back as 1972, the Consejo Nacional dos Bispos do Brasil

(CNBB) had set up the Consejo Indigenista Missionario (CIMij, the avowed objective of

which was to champion the cause of the indigenous community. Its publication such as the

Boletim and Porantim contained material on indigenous rights and their transgression by

the military. Over the years the work begun by the CIMI, led to the proliferation of groups

and organizations working on behalf of the Brazilian indigenous people. In May 1977 the

first Associacao Nacional de Apoio ao Indio (ANAij was formed in Porto Alegre, Rio

Grande do Sul. Since then ANAl groups have spanned out in Bahia, Ujui, Parana and Rio

de Janeiro. In April of the following year, the first groups working under the name

Comisao Pro-Indio (CPij were formed in Sao Paulo, Rio de Janeiro, Sergipe, Alagoas,

Acre and Maranhao. In turn, other support groups sprung up. These included the Centro

de Trabalho Indigenista (CTij in Sao Paulo, Grupo de Apoio ao Indio in Belem, the

65 Quoted in ibid., p.Sl.

70

Grupo de Estudos sobre a Causa Indigena, as well as groups focussing on more

specialized problems such as the Comisao pela Criacao do Parque Yanomami (CCPY).66

The reasons for the formation of regional organizations were the nature of the indigenous

problems which varied from one region to the other. That apart, the different kinds of

organizations that had emerged--ANAl, CPI and the CTI--was on account of their concern

with different aspects of indigenous problems. Whereas the ANAis were largely

concerned with legal issues, the CPI attended to the government policies and the CTI

worked to formulate and carry out developmental projects in indigenous areas.

Notwithstanding the mushrooming of such support groups, it was felt that these groups

sponsored and organized by non-indigenous people helped facilitate diffusing tensions

between the government and the indigenous community. To that extent, however

effective, these support groups had a limited purpose and vision. They could not go

beyond, to address the basic problems of identity and survival of the indigenous

community. It is this realization that ultimately led to the birth of the UNI.

The creation of UNI caused great discomfort to the military government, the

credibility of which was now fast eroding. The military was so greatly concerned with the

advent of the UNI that they were even apprehensive of the "dangers of the name" of the

UNI. As one writer points out, "Brazil, they [the military] repeated could not afford to

have nations within nations. Besides, the Indians are Brazilians and must · define

themselves as such. They are entitled to harvest the benefits of a developing country, so

long as they keep quiet and perhaps cooperate ... thus contributing to the advancement of

the Brazilian nation. "67

66 For a detailed description of the support groups and pro-Indian organizations see D. Maybury­Lewis, "Indian and Pro-Indian Organizations in Brazil," Cultural Survival Quarterly, vol.8, no.4, 1984, pp.l9-21.

67 Alcida Rita Ramos, n.3, p.l65.

71

When such appeals failed, the military even tried to question the legality of the

Union of Indigenous Nations on grounds of national security. On the one hand, they

argued that the UNI is infiltrated ''by undesirable alien influences"; while on the other

hand they argued that Indians being the tutelados (wards) by law, cannot create

organizations "outside their guardian's pale."68

Against these odds, the UNI evolved during the decade of 1980. Besides, a series

of crises both on account of problems from within itself as well as from the competing

interests and influences of its support groups also bedeviled the UNI. In the twelve years

of its existence it was faced with leadership problems which even led to a change in its

organizational structure from a hierarchical presidential system to an encompassing

organization of national and regional coordinators. Also, UNI made and broke alliances

with the Church, with non-Indian, non-governmental organizations and with the so called

Alliance of the Peoples of the Forest, which included non-Indian rubber gatherers in the

state of Amazonia. These and other problems that riddled the UNI were further

compounded by its woeful lack of financial resources and above all the open hostility

from FUNAI.

Despite these difficulties, the indigenous movement led by the UNI gained ground.

It became visible in the media, among the lawyers and even in the National Congre.ss. A

number of other factors also indirectly contributed to its influence and strength. Amongst

these the two most important are the widespread global concern on human rights as well

68 Alcida Rita Ramos, n.56, p.ll. General Golberry de Couto e Silva, it appears had ordered that "profound studies" be carried out to examine the antecedents of the UNI and also its legality, considering that the indigenous people are "relatively incapable" and the wards of the state. In turn, the National Intelligence Service (SNI) which had conducted the "profound studies" came up with findings that showed that the UNI has been "undertaken with the protection of the people" reputedly dedicated to set the Indians against the indigenous policy defined by the government. The SNI report went further recommending the revision of the 1973 Estatuto so as to curb "situations as absurd" as the formation of UNI by "relatively incapable" people or having an "obviously integrated" Indian raise polemic issues, unwilling to give up his "penal irresponsibility but wanting to leave the country to join a 'tribunal' abroad".

72

as environment issues. Encouraged by these causes UNI began to play a decisive role in

national life. Thanks largely to its efforts in 1982, in the first free election since 1964,

Mario Juruna, a Xavante Indian was elected as a federal representative by the state of Rio

de Janeiro, helping to move the indigenous cause into a more prominent position. Other

groups such as the Kaiapo, Pataxo, Terena, and even the Guarani, demanding and

presenting their historic and original rights, made their presence felt in Brasilia. Thus

public opinion was sensitized. Indian cause gained sympathy and support of large sectors

of the Brazilian civil society.

Role of Indigenous Organizations in the Constituent Assembly

By 1984, the dye was cast and the days of the military were nearly at an end. The

advent of the New Republic in 1985 heralded a new phase in Brazil's political evolution.

In fact, during the presidential election campaign, between late 1984 and early 1985, with

Tancredo Neves emerging as the first civilian president after the "long nights of the

Generals", it seemed that at long last the dream of the indigenous people for a new lease

oflife was coming to fruition. But the sudden and sad demise of president-elect Neves and

in the wake of the tragedy, vice-president-elect Jose Sarney assuming office as the

president, soon demonstrated that there was nothing new about the New Republic.69 The

only lingering hope was a new constitution to be drafted during the administration of Jose

Sarney that possibly would undo at least some of the predecessor military governments'

policy orientation and overtures regarding the indigenous people.

In these early years of transition, in an effort to influence public opinion in support

of the indigenous cause, the UNI through its regional and local organizations as well as in

collaboration with support groups including the CIMI initiated steps to prepare the ground

69 Ale ida Rita Ramos, n.62, p.l57.

73

for a new constitution. In this endeavour, UNI received support from several non-Indian

organizations including importantly, professional groups such as Brazilian

Anthropological Association (ABA) and the National Association of Geologists

(CONAGE). Alongside, the UNI held extensive discussions in the different indigenous

a/deias to prepare a plan of action. On the basis of these deliberations and discussions,

five main issues were highlighted for the serious attention of the Constituent Assembly.

They are: (i) Recogniti<?n of the territory and rights of Indians as the first inhabitants of

Brazil; (ii) Demarcation and guaranteeing of Indian lands; (iii) Exclusive right of Indian

people to benefit from the use of natural wealth of the soil and the sub-surface of their

territories. (iv) Transfer under dignified conditions of poor workers found in the Indian

territory; and (v) Recognition and respect for the social and cultural organizations of the

Indian people and their own future projects and the full guarantee of citizenship. 70

In February 1987, following the new administration's decision to turn the

Congress into a constitution drafting body, the ·Constituent Assembly began its

deliberations. For the task of drafting the various sections of the constitution, the

Assembly was divided into eight main committees and twenty-four sub-committees.

Interest groups desirous of placing their demands and proposals were advised to submit

their briefs to the appropriate sub-committees. A draft of the constitution_ was to be

eventually prepared and produced by Commissao de Sistematisacao (Systemising

Committee). Matters relating to indigenous rights were first assigned for discussion to the

'Sub-committee of Blacks, Indians, Disabled and Minorities' which was later rechristened

as 'Committee of Social Order'. The early debates within the sub-committee stressed the

aboriginal rights of Indians and the importance of their cultural and ethnic identities.

Nevertheless, it upheld the rights of the federal government to control the mineral rights in

70 Beatriz Perrone-Moises, n.25, p.l25.

74

indigenous areas.

By most accounts it appeared that the Constituent Assembly would not have

approved the significant improvements in the guarantees to the indigenous people but for

the prior strong mobilization of the indigenous people themselves. In fact, in late March

one of the most influential indigenous communities viz., Xavante organized a massive

rally consisting of several indigenous groups from Mato Grosso to discuss and formulate

their position regarding changes to be introduced in the new constitution on the status and

rights of the indigenous people. Besides other indigenous groups, in this crucial meeting

several non-indigenous organizations as well as r~presentatives of FUNAI were present.

Similarly, a meeting called by Casa Latino Americano, a support organization together

with UNI was held in Curitiba around the same time. The principal objective of these

rallies and meetings was to formulate a concerted proposal that would be presented

collectively to the members of the Constituent Assembly for consideration. The upshot of

all these initiatives was a text intended as a draft chapter for the new constitution on

indigenous rights. 71 The text consisted of five articles and eleven supporting paragraphs.

The text of the articles reads as follows:

1. The Indians original rights to lands they occupy, social organization, customs, language and traditions are recognized. The Union will guarantee protection of these lands, the institutions, persons, goods, health, and education of the Indians.

2. The lands occupied by indigenous populations are inalienable and destined to be their permanent possession .... Their rights to the exclusive use of all natural riches, of the surface, subsurface and water resources, and all uses which pertain to them, are recognized.

3. The Indians, indigenous communities and their

71 Laura Graham, "Constitutional Lobbying in Brazil: Indians Seek Expanded Role", Cultural Survival Quarterly, vol.ll, no.2, 1987, p.62.

75

organizations, the National Congress, and Public Ministry are the legal entities to defend the Indians' interests.

4. The rights and guarantees recognized in this Chapter are directly applicable to and the responsibility of all public offices.

5. It is the responsibility of the Federal Government assisted by the State Governments to pass legislation guaranteeing the rights stated herein. 72

In the words of an observer, these meetings ''marked a turning point in the historical

relationship between the State and the indigenous peoples ofBrazil".73

The presentation of the text was accompanied by a ritualistic ceremony.

Describing these festivities an observer writes:

Amid the singing, clapping of hands and jostling press, the Indians crowned Guimarraes [president of the Constituent Assembly] with a Txucarramae feather headdress. At sunset, the Indians moved outside to the platform of the National Congress. There ... the Txucarramae sang and danced while four Shamans blew smoke over the president of the Subcommission on Minorities, Senator Ivo Leach, thereby removing any unfavourable influences that might affect the future of their proposal. 74

Most members of the indigenous organizations were firmly of the view that the proposed

text and its incorporation in the new constitution were vital to the cause of the indigenous

community for after all the previous 1968 Constitution "considered the rights of the

indigenous people in a single article." 75 So strident was their commitment to the proposed

text, some among the indigenous communities, importantly the Xavante refused to partake

in the festivities, claiming that they would not do so unless it was incorporated in the draft

12 Ibid.

73 Beatriz Perrone-Moises, n.25, p.l23.

74 Laura Graham, n.71, p.61.

7S Ibid., p.62.

76

constitution. As they asserted, "this is not the time for festivities. When we have

something to be happy for, we will celebrate."76

Their skepticism and circumspection was not unfounded. For, by now it was fairly

known that the new Republic under the stt(wardship of Jose Samey, at the behest of the

military was formulating what came to be known as Projeto Calha Norte (PCN, North

Tributaries Project). The project, seeking to use the northern effluence of the Amazon

envisaged among others the reduction of large continuous indigenous areas; restrictions on

demarcations within sixty-two miles of national borders; the encirclement of indigenous

land with national forests to smooth the way for logging and mining concessions; and the

division "of indigenous people into silvicolas and "acculturated Indians" with different land

rights applying to each other. 77 Once the PCN became public knowledge, the indigenous

communities felt even more threatened and therefore became justifiably wary of what the

new constitution would offer them.

That their fears were not unfounded became evident when initially in the newly

designated Committee of Socicd Order it was proposed that the natives should be

assimilated into Brazilian society rather than treated as a separate group depriving them

thereby of their protection and special status.78 In the final analysis however, it appears

this move after acrimonious debate was defeated and "overwhelming support was given to

76 Ibid.

77. Stephan Schwartzman, Ana Valeria Araujo and Paulo Pankararu, "Brazil: The Legal Battle Over Indigenous Land Rights", NACLA Report on the Americas, vol.29, no.5, March-April 1996, pp.38-39. Projeto Calha Norte (PCN) is a military project drawn up in secrecy in 1985. When it was made public, the project's implications for the welfare of the Amazonian indigenous community became a matter of serious public debate. Among the other claims made by the military, one specifically underlined the fact that the installation of a string of military outposts along the 6, 711 km long strip of Brazil's northern frontier would greatly contribute to national security against foreign incursions, guerrilla warfare and narco-traffic as well as for Brazilian "hegemonic aspirations" in the region!

78 M. Santilli, "Indios e Constituinte", Ciencia Hoje (Rio de Janeiro), vol.6, no.34, August 1987, p 17.

77

maintain the pluri-ethnic character of the Brazilian society''.79

The threat to the indigenous interests was far from over. A second crisis came

from the powerful mining lobbies supported by some sectors of the federal government

attempting to ''withdraw the use of the subsoil as part of the exclusive usufruct rights"

held by the indigenous communities over the natural resources of their lands. Whereas the

Committee of Social Order pressed for the exclusive usufruct rights of the indigenous

communities, powerful anti-Indian interests pressured for the denial of such rights in the

other two committees--one, Economic Order and the other, Organization of the State. 80

In August 1987 the draft proposals of the different subcommittees in their final

version were put together by the Commissao de Sistematisacao under the chairmanship of

Deputy Bernardo Cabral of the Brazilian Democratic Movement Party from the

Amazonas. At this juncture differences in respect of rights of the Indians as recommended

by the different subcommittees were resolved although on account of interminable debate

on the issue of demarcation of indigenous lands, the concerned article was placed under

Transitional Regulations. At this stage the controversy it appears became "fierce and

vicious" because a draft text tabled for consideration restricted mineral exploitation on

indigenous lands to state companies only. This limitation obviously triggered a press

campaign discrediting the pro-Indian lobby and the CIMI. Accordin~ to one observer, this

campaign "had its roots in the private companies and was linked to the secretary general

of the Council ofNational Security and FUNAI".81

79

80

81

Around this time, the influential conservative national daily, 0 Estado de Sao

Elizabeth Allen, n.21, p.l53.

Ibid.

Ibid., p.l54.

78

Paulo creating a totally unfavourable climate launched a vigorous and perverse anti­

indigenous campaign. In a series of five major reports, 0 Estado accused the Church and

especially the CIMI of supporting the internationalization of the Amazon, of trying to

restrict national sovereignty and of preventing Brazil from taking full advantage of the

lucrative international mineral market.

The charges made by the media climaxed to a point that a joint parliamentary

committee of inquiry was set up to examine the veracity of these accusations. The bitter

public row seemed to have considerably influenced the members of the Constituent

Assembly. At the Commissao de Sistematisacao, Bernardo Cabral had even revised the

earlier draft proposal to include the clause that mineral exploration on Indian lands should

be extended to national private companies, and not limited to the state companies. No

doubt, this revised proposal sought that for the national companies to have access to the

indigenous lands, they should receive prior approval of the federal legislature as well as

the indigenous community resident on these lands. Similarly, another revised proposal

relating to the mode of verification on the lands of the indigenous community based on

"immemorial possession" was also brought up for debate. These revisions were made and

fresh debates ensued largely on account of the critical media coverage. Despite these

serious setbacks which created wide-spread apprehensions among the indigenous

communities, the voting on the coordination of the· social order section of the draft

constitution took place between 21 and 24 November 1987. On 1 June of the following

year, the final voting took place and between late November and early June there was

intense, well organized lobbying in Brasilia by the indigenous community and their

supporters. According to one account, in these last stages, more than two hundred leaders

belonging to as many as forty different indigenous communities pressed their case daily.

At the first round of voting, the section relating to Indians in the draft constitution

79

received support from 497 of the total 559 delegates in the Constituent Assembly and in

the final round held in August, 423 delegates supported the provisions relating to the

indigenous community. The overwhelming support that the indigenous community

received, notwithstanding the unpleasant political and public upheavals, was admittedly

on account of the resoluteness of the indigenous community. As one observer remarks

... the Indians had shown that they would not wait passively in their aldeias whilst non-Indians made decisions about them. Together with their supporters and allies from other sectors of Brazilian civil society, they had proved that they could also lobby Congress and put pressure on the political system.82

1988 Constitution on Indigenous Rights

On 1 June 1988, following the seventeen months of intensive debate in the

Constituent Assembly the draft constitution was adopted. Consisting of 245 basic articles

and 70 transitory articles, the new document, critics argue as both regressive but also

positive at least in regard to the indigenous communities' status and rights. In this section

an attempt is made to. examine briefly the 1988 Constitution with regard to the indigenous

communities of Brazil.

More than a dozen provisions deal with indigenous people. They relate to powers

of the federal government to legislate on indigenous population, the jurisdiction of the .

federal courts whenever indigenous rights are in dispute, the power of the Public Ministry

to defend judicially the rights and interests of the indigenous people, the protection of

their culture, customs and languages along with aspects concerning the critical questions,

ownership and use of indigenous lands. 83

82 Ibid., p.155.

83 Constitution of the Federative Republic of Brazil 1988-Article 20,XI; Article22, XIV; Article 49, XVI; Article 109, XI; Article 129, V; Article 176, para 1; Article 210, para 2; Article 215, para 1; Article

80

Under Title VIII on Social Order, a whole chapter entitled "Indians" (Chapter

VIII), consisting of two articles (Articles 231 and 232), deals directly with indigenous

lands and the rights of the indigenous communities. Besides, Article 67, under the Act of

the Temporary Constitutional Provisions (transitory provisions) also has reference to the

demarcation of the indigenous lands. These apart, there are a few more directory

provisions scattered under different sections that relate to the indigenous communities.

One distinct feature of the 1988 Constitution is the importance given to the

definition of the rights of the indigenous people. Besides constitutionally acknowledging

their rights to social organizations, customs, languages, beliefs and traditions, Article 231

declares their right to the "lands they traditionally occupy" as "original". By conferring

such rights as inherent it is, as one scholar points out, "predating their acknowledgement

by the Brazilian state".84 Besides their lands being recognized as "traditionally occupied",

the Constitution also in broader terms takes into account the culturally different ways of

occupying a territory (Article 231, para I). As one writer comments this provision "serves

as a constitutional beacon of a truly democratic State in which various ethnic groups are

not forced to integrate into the dominant ethnic and cultural entity''.85 In the previous

dispensation, authorization to grant permits. for exploitation of water and mineral

resources of indigenous lands was essentially the prerogative of the executive branch. In

the 1988 Constitution, such authorization instead has to come from the national legislature

(Article 49, XVI and Article 231, para 3). Investing such authority to the National

Congress critics argue would "allow for a greater debate on these questions, contrary to

231; and Article 232.

84 Beatriz Perrone-Moises, n.25, p. 126.

85 Paulo Machado Guimaraes, ''The Stakes of Indian Legislation", in Marie Leger (ed.), The Aboriginal People: Towards Self-Government (New York: Black Rose Books, 1994), p.130.

81

the previous practice". 86

What is more, while Article 49 merely states that such authorization is

"exclusively the competence of the National Congress", Article 231 adds a rider thereby

underlining that an authorization to that effect has to be made only "after hearing the

[indigenous] communities involved". The physical displacement of these communities for

whatever considerations cannot be as in the past arbitrary. For, under the provisions of

Article 231, para 5, it is by a referendum of the National Congress alone which shall

decide their eviction. It also enumerated the grounds on which such displacement could be

effected such as-"catastrophe" and "epidemic" representing a "risk" to their life or, "in

the interest of the sovereignty of the country". Finally, para 6 of the same Article makes

"[a]cts [aimed] at the occupation, dominion and possession of the lands [traditionally

occupied by the Indians] and the natural [wealth] existing thereon ... null and void, except

as regards an important public interest". In the exercise of their rights over their lands,

transitory provision (Article 67), above all, set a mandatory five-year-deadline following

the proclamation of the new Constitution to demarcate the indigenous lands.

The second distinct feature is that in the exercise of their rights or denial thereof,

the Constitution recognizes the indigenous communities' right to defend or contest the

same instead of seeking recourse to FUNAI as has been the practice in the past.87 This

provision also implies the discontinuance of the trusteeship. 88 Henceforth it is the Public

Ministry that is responsible for "intervening in all procedural acts". (Article 109, XI;

86 Ibid., p.l31.

87 Article 232 states "The Indians, their communities and organizations have standing order under the law to sue to defend their rights and interests ... "

88 For an analysis of the trusteeship question with reference to the 1988 Constitution see Carlos Frederico Mares de Souza Filho, "Tutela aos Indios: protecao ou opressao?" in Os Direitos Indigenas e a Constituicao (porto Alegre: Nucleo Direitos Indigenas, 1993), pp.295-312.

82

Article 129, V; and Article 232). This change is significant because the Public Ministry is

independent of the government in power; such that judicial processes relating to

indigenous issues will be protected from the pressures of different political interests. 89

There are several other directory provisions enjoining the educational, cultural and

social rights of the indigenous people. Specific provisions include Article 210, para 2

which provides that while elementary education shall be in Portuguese language, "Indian

communities shall also be insured the use of their native tongues and their own learning

methods. Article 215, para 1 prescribes that the federal and state governments "shall

protect the manifestations of popular Indian ... cultures ... participating in the national

civilization".

Other general provisions-Article 3, IV; Article 5; and Article 18, para 3-all

stress that the indigenous people will be treated as equals with the rest of the people of

Brazil without prejudice to their origin, race and colour. In other words, except when

otherwise explicitly stated indigenous communities shall be the beneficiaries of all

constitutional and legal rights that other national citizens enjoy.

Provisions under Chapter VI of the Constitution on "Environment" also do have

bearing on the indigenous people. These provisions underline "an ecologically balanced

environment" which call for measures to protect the ''natural ecosystems" and "provide

for the ecological treatment of species" especially in regions such as the Amazonian and

Atlantic forests of Brazil which are the natural habitat of most indigenous communities of

Brazil.

Doubtless, these distinct features suggest that the 1988 Constitution has broken

89 In enumerating the intitutional functions of the Public Prosecution, Article 129 includes, among others, the function "to defend judicially the rights and interests of the Indian population".

83

new grounds in respect of the indigenous peoples' land rights and cultural identity. The

practice of assimilation, authorized by the interpretation of the term "integration" in the

previous legal instruments seem to have been finally discarded by the new Constitution.

Yet, there are some critics who view the new provisions as either restrictive or, at least,

ambiguous enough and therefore susceptible to contrary interpretations to the detriment of

the indigenous people.

Regarding land, the Constitution recognizes indigenous rights as "original" i.e.

existing prior to the Brazilian state law. It also ensures that such "original" right on the

"traditionally'' occupied lands permit them to productive activities which among others

include those "essential to the preservation of the environmental resources necessary for

their welfare, traditions, and physical and cultural reproduction." To that extent the

juridical solution is coherent. Yet, it "hides a more basic right of the Indian people, which

is the right to a territory."90 Unless the right to a territory is ensured, critics point out, any

conflicts arising out of individual or collective appropriation of a family or group of such

indigenous lands cannot be dealt with. For, such of these conflicts that arise can only be

resolved through traditional indigenous land practices which in these lands cannot be

adopted because these lands are the domain of the state. Therefore mere land rights devoid

of the right to territory, it is pointed out is restrictive as well as counterproductive in

respect of the COJl?lllunities' productive-physical and cultural-activities.

Furthermore, critics argue that constitutional provisions giving recognition to the

different indigenous cultures and their practices and languages while on the one hand

elevate and enhance the differentiated identity among them, yet implicitly at least fail to

give cognizance to the cultural and ethnic diversity of the larger non-indigenous Brazilian

90 Carlos Frederico Mares de Souza Jr., n.20, p.222.

84

society. Failure to recognize the plurality of the Brazilian society is, as critics point out,

not an oversight but a design. For, by conceding the rights to indigenous people to

preserve their differentiated cultures and languages, the constitution makers have

"retained the hegemony and the uniqueness of the national culture and the Portuguese

language".91

Article 232, it is pointed out, is admittedly an endorsement of the 1973 Estatuto

giving recognition to the indigenous communities. Yet, nowhere in the Constitution is

there a given definition of the juridical nature of the community. It is argued that the

Constitution "remains silent with regard to Indian communities". So much so, ''they have

not been created either by la~ or by any juridical act. This is a curious situation." Even

while granting the indigenous communities' legal existence as recognized by the

Constitution and the Brazilian judicial system having accepted their legitimacy, as one

critic argues, so far "there is no information that in any court the legitimacy of any

indigenous organization has been recognized".92

Indigenous Policy Since

The 1988 Constitution has been extolled as a ''major political expression"

constituting ''urn novo capitulo na historia das relacoes" between the Brazilian state and

the indigenous communities.93 Such descriptions are not far wrong notwithstanding some

built-in contradictions seen in the new constitutional document by some critics. In more

than one respect, the new political instrument sought to provide a basis for resolving the

most critical of the indigenous issues viz. the land question. Not only did the new

Constitution bestow upon the indigenous people their right to lands they liad ''traditionally

91

92

93

Ibid., p.224.

Ibid.

Carlos Frederico Mares de Souza Filho, n.88, p.310.

85

occupied", but also declared all titles to indigenous lands by non-indigenous people and

corporate entities to be constitutionally null and void. Above all, the Constitution called

for demarcation of all indigenous lands as reserves within five years following its

proclamation.

Despite these positive gains, the successive civilian administrations have been

most reticent to evolve coherent policy measures in consonance with the new

constitutional principles. The track record of the New Republic as of now is far from

satisfactory. Not only are the civilian administrations acting in disregard of the indigenous

people as if their demands have no legal significance, they continue to decree regulations

or adhere to standards which no longer correspond to the new constitutional order.

Fernando Collor de Mello, (the first-ever president elected by a direct vote since

1960) in whose tenure the demarcation process should have been completed by the

mandate of the new Constitution, at the beginning of his administration had not even

established any policy concerning the indigenous people. His only policy initiative, if at

all it can be so called, was the proclamation of Decree 99.405 on 19 July 1990 for the

creation of an Inter-ministerial Work Group (GTI) with authority to prepare measures

intended to make the federal government more efficient in preserving and defending the

rights and interests of the indigenous people.94

As the GTI was engaged in desultory deliberations, it soon became evident that

Collor's actual priorities were located elsewhere. After assuming office in 1990, he soon

visited the Y anomami area in northern Brazil where he announced the creation of a

special committee to study the territorial zoning of Brazilian Amazonia and to reformulate

94 Bruce Albert, "Indian Lands, Environmental Policy and Military Geopolitics in the Development of the Brazilian Amazon: The Case ofYanomami", in Development and Change, vol.23, 1992, p.57. See also Paulo Machado Guimaraes, n.85, pp.l32-134.

86

the Calha Norte Project.95 That this announcement was a sequel to a document that the

Escola Superior de Guerra (ESG, Superior War College) had prepared in March became

public knowledge only subsequently when the media had pieced together these events.

Entitled as The Structure of National Power for the Year 2001; 1990-2000: The Vital

Decade for a Modern and Democratic Brazil, the document enumerated the 'obstacles' to

the national integration of Amazonia. Among others, these obstacles included the

excessive number and size of indigenous lands especially in the international frontier

areas and the campaigns of international environmentalists using the 'indigenous

enclaves' as bridgeheads to internationalize parts of Amazonia. It went further,

vehemently arguing against the ''radical preservation of Indian cultures" as "cysts within

national space" and against "preservationist activism".96

That the military continued to retain overwhelming influence on the civilian

government became even more apparent when the GTI submitted its proposals in

November 1990. While' its recommendations on assistance to indigenous communities in

respect to education and ·health appeared encouraging, its proposal on the legal status of

the indigenous people and their lands reflected the overwhelming influence of the

military. They included such proposals as automatic emancipation of the indigenous

people and the role that non-indigenous economic interests should play in the demarcation

process of indigenous lands. When these proposals were rejected by the Public Ministry as

unconstitutional, Collor retracted to announce yet another inter-ministerial committee to

define within thirty days a new administrative mechanism for the demarcation of the

indigenous lands in January 1991. When the deadline of this committee expired, under

strong public criticism Collor began giving some shape to his indigenous policy through

95 0 G/obo, 25 March 1990.

96 Fo/ha de Sao Paulo, 29 May 1990.

87

the enactment of five new decrees on 4 February 1991. These decrees concerned (i)

procedural standards for physical delimitation of indigenous lands (Decree No.22); (ii)

parameters for medical assistance for the indigenes; (iii) actions to protect the

environment of the indigenous regions; (iv) projects to ensure the economic autonomy of

the indigenous people; and (v) educational assistance to them. Built into these decrees

were two basic objectives--<me, enlarge the scope of the indigenous policy to include

elements of environmentalism, and two, disperse the responsibility concerning the

indigenous issues to as many ministries and agencies.97

These policy initiatives were unquestionably m clear violation of the 1988

Constitution.98 What is more, the decree empowered the Ministry of Justice (at the time it

was headed by a minister "seen as a symbol of the military regime, having been minister

during three of lts governments between 1967 and 1985") with discretionary powers on

demarcation of indigenous lands which was clearly against the spirit ofthe Constitution.99

It was not unexpected when, as these measures were placed before the National

Congress as a legislative bill, indigenous organizations and their support groups led by the

UNI strongly criticized the government. In their view, these measures only created a

dispersed system of assistance without coordination and at same time was giving arbitrary

97 These decrees also envisaged circumscribing the responsibility of FUN AI for different aspects of assistance to the indigenous people, leaving the agency with only the technical responsibility for proposing demarcation limits. Besides, Ministry of Justice was entrusted with the responsibility for the physical delimitation of indigenous lands; National Health Foundation was assigned the task of medical assistance; Secretariat for Environment (SENAM) and Brazilian Institute for the Environment (IBAMA) with environmental protection; Federal Agricultural Research Agency (EMBRAP A) with economic autonomy; and the Ministry of Education and Culture with indigenous education.

98 Article 231 had vested the National Congress with the power to legislate on these matters whereas Collor had issued presidential decrees instead. Article 48, para XI is even more specific when it establishes the jurisdiction of the National Congress over "the power of ministries and agencies of the Public Administration".

99 Bruce Albert, n.94, p.60.

88

power and authority to the Ministry of Justice. The resulting impasse-both

administrative and political-added further woes to the already beleaguered Collor

government by the end of 1991.

With the United Nations Conference on the Environment and Development {Earth

Summit) scheduled to be held in Rio de Janeiro in June of 1992, Collor feared his

international image would be compromised for his failure to respect the constitutional

commitments to the indigenous people and the environment. So attempts were made to

show that physical delimitation of these territories are accomplished before long.

Budgetary resources were made to extend modest assistance to health, education and

production in indigenous lands. Beyond these overtures nothing concrete was

accomplished. Even before December of the year when he was ignominiously impeached

on grounds of corruption, Collar's indigenist policy was consigned to oblivion.

Collar's exit brought !tamar Franco to the presidency. Based on a broad coalition

of political forces to gain support in the National Congress, and bedevilled by an array of

critical economic problems confronting Brazil, Franco could not make any headway in

respect of an indigenous policy. All that he could accomplish was to refurbish FUNAI and

enable the agency to proceed with its process of defining the indigenous areas. Even the

modest progress his Minister of Justice could make in· l~gally defining new areas

traditionally occupied by some communities such as Kaingangs and Araras, went

unnoticed largely on account of Franco's vacillating attitude. 100

If the national executive's orientation in evolving a concerted indigenous policy

based on the new constitutional principles was anything but sanguine, the federal

judiciary's in contrast was noteworthy. During these very years when the executive

100 Paulo Machado Guimaraes, n.85, p.l37.

89

showed little or no evidence of genuine interest in the indigenous affairs, the federal

courts, particularly in Brasilia garnered a reputation for impartiality, overturning for

instance decisions to fragment the Y anomami reserves. What is more, the indigenous

groups and their advocates could win a series of decisions against illegal loggers and

miners in the indigenous areas. 101

The favourable judicial wind however was short-lived, more so with the present

administration led by Fernando Henrique Cardoso who won his first election in 1994

largely with the support of right wing political forces from the northern states opposed to

indigenous rights and lands. Notwithstanding his progressive credentials and track record

he has been greatly constrained by the current political dynamics. His commitment to

economic restructuring and cutbacks on government bureaucracy and welfare-state

measures undoubtedly call for a critical support from all quarters, especially of the

northern rightist allies. This, in turn has given the latter the sufficient clout they need to

gain control and dictate over his indigenous policy.

This has already become apparent with the promulgation of Decree 1775 on 8

January 1996. 102 According to most observers, this decree is nothing but a mere revision of

the infamous Decree 22 of the Collor administration dealing with the demarcation of the

indigenous lands. As one writer comments, Decree 1775 marks "a drastic reversal of

policy toward the protection of the human rights of the indigenous peoples and the natural

environrnent". 103 To most critics, Decree 1775 has once again opened up over half of

101 For details see Stephan Schwartzman et al, n.77, p.40.

102 For text of Decree 1775 see Centro Ecumenico de Documentacao e lnformacao (CEDI), Povos Indigenas No Brasil, 199111995 (Sao Paulo: lnstituto Socioambiental, 1996), p.77.

103 Terence Turner, "Brazil: Indigenous Rights Vs. Neoliberalism", Dissent (New York), Summer 1996, p.68.

90

BrazWs already demarcated indigenous areas to claims by private, local and state

agencies. 104

Further, the Decree empowers the justice minister and the president as the sole

arbiters of all challenges to indigenous boundaries, at the same time insulating their

decisions from independent impartial legal review. In effect, Decree 1775 like its

predecessor incarnation (Decree 22} makes up a legal-administrative mechanism for

circumventing the Constitution's guarantees of indigenous land rights.

Indianist Missionary Council {CIMI) in a formal statement critically evaluated the

Decree 1775 in these words:

the new decree seriously jeopardizes the Brazilian Indianist law, as it provides for concrete possibilities for reducing Indian lands. It radically changes the procedures for demarcating Indian areas and in an abusive and authoritarian way concentrates the power to decide on the demarcation of such areas on the minister of Justice, harming FUNAI's authority.

Further it stated:

One of the points that render the decree unconstitutional is the fact that it provides for the possibility of legalizing all title deeds, which article 231 of the Brazilian Constitutional

104 Demarcation of Indigenous Land: January 1990-September 1998

President Period Number of Land Area Number of Land Area Declared (Hectares) Homologated (Hectares) Lands Lands

Fernando January 1990- 58 25,794,263 112 26,405,21 Collor September 9

1992

I tamar Franco October 1992- 39 7,241,711 16 5,432,437 December 1994

Fernando H. January 1995- 46 13,022,730 94 29,170,92 Cardoso September 0

1998

Source: Inst1tuto Soc1oamb1ental (Sao Paulo, 10/12/1998).

91

considers null and extinct. It is a gift to states such as Para, which has filed suits against the existence of Indian areas. The decree also provided for the possibility of indemnifying states and municipalities for demarcation works that were carried out or are in course.

The most serious aspect, however, is that contrarily to what the government says, only the 210 areas that have been actually registered are protected from the provisions of the new decree. The remaining 344 Indian areas that have been recognized as such in Brazil will be reviewed and may be reduced, including those that were homologated this week. Still according to the decree, the review does not contemplate the case of areas that are not large enough for the state ofMato Grosso do Sul. 105

The many legal and constitutional lacunae in the new decree has once again

plunged the indigenous people into confusion in respect of their status and rights over

their lands. Its proclamation has opened fertile grounds for both the indigenous groups and

the unscrupulous land speculators and invaders to resort to legal recourse. As a

consequence, several legal contestations are pending before the federal and state judiciary.

In these circumstances the prospects from the perspective of the indigenous people

seem rather uncertain. There are those who suggest that at the maximum, the indigenous

lands may in the end be reduced once it had been legally established that they are not

"lands traditionally occupied" by them. For, most of the legal battles revolve around the

meaning of the phrase "traditionally occupied". Yet, the present climate of uncertainty

created by Decree 1775 is already being exploited by the usual array of unscrupulous

speculators and corporate entities to gain foothold in the indigenous regions.

Apparently, time is running against the cause of the indigenous people-more so,

because the timing of the proclamation of the decree coinciding with Cardoso's

acknowledged commitment to a policy of economic restructuring. In this milieu, a

lOS For details see CIMI, "New Decree is Unconstitutional", cimi@ax.apc.org

92

potential casuality of this policy approach euphemistically described as "neoliberal" could

as well be the indigenous communities.