Brazilian Supreme Court is about to rule Indigenous peoples’ land Claim in Roraima

No centro da taba se estende um terreiro,  Onde ora se aduna o concílio guerreiro  Da tribo senhora, das tribos servis: Os velhos sentados praticam d’outrora, E os moços inquietos, que a festa enamora, Derramam-se em torno dum índio infeliz.  Quem é? — ninguém sabe: seu nome é ignoto, Sua tribo não diz: — de um povo remoto Descende por certo — dum povo gentil; Assim lá na Grécia ao escravo insulano Tornavam distinto do vil muçulmano As linhas corretas do nobre perfil. (Gonçalves Dias)   The author would be extremely frustrated if he were prevented to state his point of view on the recent issue of Indigenous Land (IT) Raposa Serra do Sol. Fortunately, the generosity of the editors of O Eco allows me to comment on any matters to my heart’s content. So, here I come! It is very clear that indigenous issues have always been controversial and not always guided by reason. Even the rationalists keep a certain fascination with the "primitive". The French were unbeatable in this modality. Rousseau came to support the myth of the "bon sauvage", which indicated a certain bias since although being "good", the Indian was still considered "wild". However, this did not prevent that fiery discussions on the existence of a "soul" among the Indians were a topic of academic and ecclesiastical debates, as texts of Francisco Vitória and Bartolomeu de Las Casas can prove. The Iberian world has always had great difficulty in dealing with the natives. The Portuguese and Spanish colonial laws always varied strongly in relation to the Indians, going from enslavement to mythification. We cannot fail to register the romanticism that surrounded the "primitive communism" of the Guarani reductions, as the issue of the Jesuit colonies has been treated by “left wing historians”.    The Englishmen, in a more pragmatic way, established treaties with the natives, also followed by the United States. Thus, Canada, the United States, Australia and New Zeland entered into treaties with other nations (the aboriginous people) and then quickly broke the rules. Just to get an idea, it is worth taking a look at the following site: Anyone who reads a little about the so-called Trail of tears will quickly understand that the Indians have always been cheated. Sitting Bull - the great lakota Tatanka Iyotaka Chief – ended up in Buffalo Bill’s circus. Here in Brazil things were not different, but the documentation is scarcer and not too many films were made. Whoever may be interested in the subject can take a look at the Museum of the Indian in Rio de Janeiro, which under the competent direction of Jose Carlos Levinho has striven to maintain with dignity the indigenous memories. Here between us, from the Acropolis to the necropolis, the Indians have been treated as orphans (Consolidation of civil laws) and incapacitated (Civil Code and Indian Act). Already in 1988 the "Citizen Constitution" devoted an entire chapter to the Indians and widely disposed on indigenous lands. A matter that was in fact already present in the 1969 Constitution (oops!!!) which in its general and transitional provisions stipulated: "Art 198. The lands inhabited by Indians are inalienable in terms determined by   federal law, giving them permanent possession and having recognized their right of exclusive use of all the natural wealth and existing facilities therein. Paragraph 1 - Shall be declared void and extinct of legal effects of any kind related to the domination, possession or occupation of land inhabited by Indians. § 2 - The invalidity and determination stated in the previous paragraph do not give the occupiers the right to any claims or indemnity requests from the Union and the National Indian Foundation.  If neither the "whites” participated in drafting the "constitution"of 1969, what to say about the "red-skins"? In 1971 the statute of the Indian was drawn with the intent to protect the "forest inhabitants". This law still remains in force, although it has several points overdrawn by the new constitutional order of 1988. The fact is that the statute provides the picture of the federal Indian Territory which was never implemented. There is a new proposal in the National Congress about a Constitutional Amendment which revives the debates on the subject.   Remembering the Statute of the Indian: "Art 30. Indigenous Federal Territory is the administrative unit subjected to the Union and introduced in a region in which at least one third of the population is made up of Indians.”   Roraima, with all due respect to the “white” inhabitants who live there, is an unviable state.  It only exists in function of the transfer of Union funds. Moreover, the importance of the indigenous people in that State is such that not by chance one of its most distinguished representatives at the National Congress was President of FUNAI and he certainly used this as an important tool to climb to the high position he holds today. The demarcation of indigenous lands in the legal point of view is merely declaratory and not constitutive. In lay language, it contemplates a mere recognition of the existence of the Indigenous Territory (IT). There is an administrative procedure that is governed by decree 1775/96. It ensures the right of ample defense1 and contesting. There is an anthropological report prepared by FUNAI which is the defining element of the dimensions of IT. Certainly, there is much exaggeration and a tendency to "increase" the ITs. This, however, is not enough to distort the constitutional right that federal public land should be given to the Indians' usufruct. The jurisprudence of the Federal Supreme Court has been to recognize the administrative demarcation and, specifically in the case of the Raposa Serra do Sol IT, it would represent a shift of 180º in its historical trend. Even if there are distortions in the demarcation of the Raposa Serra do Sol IT, a judicial review would only make sense if the Agency - FUNAI – clearly had exceeded the limits of legality. And here it must be said that the Constitution has made it very clear about what is necessary for a region to be recognized as IT. This question, however, has not been ventilated by the press. It limits itself to comment only on the size of the area. From the legal point of view, this is irrelevant.   It is expected that the Indians may have their rights recognized - remembering that no indigenous people attended the Constituent that drafted the Constitution of 1988 and that we may recognize the dignity of people like us. This is a great way to become a little more human.

Paulo Bessa ·
2 de setembro de 2008 · 13 anos atrás
  • Paulo Bessa

    Professor Adjunto de Direito Ambiental da Universidade Federal do Estado do Rio de Janeiro (UNIRIO)

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