Development, Conservation, and Indigenous Rights in Brazil

Development, Conservation, and Indigenous Rights in Brazil by Marc Pallemaerts

The Amazon Basin is the largest tropical moist forest area in the world. The greater part of the Amazon forest, over three-fifths of the basin's total area, lies in Brazil, covering 42 percent of that country's national territory. In 1970 the total indigenous population of Brazil numbered 120,000. The majority of the Indians of Brazil (61 percent) live in Amazonia1 in small, scattered tribal groups. They are largely dependent on the tropical forest for their cultural and economic survival. Brazil's military rulers and economic elite view the Amazon forest as a vast "unoccupied" and "unproductive" frontier area which is to be "devel- oped" and integrated into the national economy. Pursuing a policy which had been planned since the end of the 1940s, in the early 1970s the military government, with both the assistance of the World Bank, the Inter-American Development Bank, the United States Agency for International Develop- ment, and other international lending agencies, and the active participation of transnational corporations and national entrepreneurs, embarked on the "National Integration Plan" (Plano de IntegraAo Nacional)2 an ambitious program for the development of the Amazon region. The first step in this program was the building of thousands of miles of roads, including the famous Transamazonian Highway, to make the area accessible and to open * The author gratefully acknowledges the support of the Belgian American Educational Foundation, which made this study possible. This article was completed before the restoration of civilian government in Brazil and does not take account of any changes in law and policy that may have occurred since. 1. In this article, the term "Amazonia" is used to designate the Brazilian part of the Amazon Basin, extending over the states and territories of Amazonas, Par~, Maranhao, Mato Grosso, Acre, Rond6nia, Roraima, Amapa, and Goias. 2. Decree-Law No. 1.106 of June 1970. 374 This content downloaded from 165.193.178.76 on Sat, 02 Apr 2016 15:25:39 UTC All use subject to http://about.jstor.org/terms Indigenous Rights in Brazil 375 it up for economic activities. A subsidiary aim of this road-building scheme was the resettlement of thousands of landless peasants from the poverty- stricken northeast, who were given small plots of land along the roads as a substitute for more drastic land reform.3 One hundred kilometer-wide strips of rainforest on either side of the entire Amazon road network, legally re- garded as "vacant lands" (terras devolutas), were declared the property of the federal government by proclaiming them "areas indispensable for national security and development."4 These areas were later made available for com- mercial agricultural colonization projects.5 Although supposedly this was done "without prejudice to .. the rights of the [Indians],"6 numerous In- dian tribes were dispossessed of their lands by this scheme. In 1970 Presi- dent Medici stated official government policy as follows: "Men without land in the Northeast. Land without men in the Amazon."7 The government also instituted a scheme of fiscal incentives to promote private investment in the Amazon region.8 Taking advantage of these tax breaks, United States, Japanese, and European transnational corporations, as well as Brazilian entrepreneurs, set up commercial logging, mining, and cattle-ranching operations throughout Amazonia, all mainly export-oriented economic activities of little or no benefit to the rural poor.9 These "development" activities have been extremely destructive, both for the indigenous peoples of Amazonia, and for the ecological diversity and 3. F. Cardoso and G. Miller, Amaz6nia: Expansao do Capitalismo 121-122 (1977). 4. Decree-Law No. 1.164 of 1 April 1971, 1971 111 Colegio das Leis [Colego] 9, arts. 1, 2. 5. Decree No. 68.524 of 16 April 1971, 1971 IV Cole(go 40, art. 1(c). 6. Decree-Law No. 1.164, supra note 4, art. 5(a). 7. Quoted in S. Davis, Victims of the Miracle 39 (1977). 8. Law No. 5.174 of 27 October 1966. 9. The large-scale livestock projects which have caused most of the overall deforestation and received the bulk of government financial support have created very little perma- nent employment. J. Eglin and H. Thery, Le Pillage de L'Amazonie 123-124 (1982). "Since the profits are repatriated almost entirely to southern Brazil, the cattle ranching emphasis has brought no lasting benefits to the people of Amazonia." Goodland, "Envi- ronmental Ranking of Amazonian Development Projects in Brazil," 7 Envtl. Conservation 9, 10 (1980). On the contrary, the development projects have uprooted and displaced the local population which earned its livelihood from the forest in a sustainable manner, not only the indigenous people, but also other inhabitants of the forest who lived by gathering wild nuts, rubber, or precious minerals. Eglin and Thery, supra, at 127; Lutzen- berger, "The World Bank Polonoroeste Project: A Social and Environmental Catastro- phe," 15 Ecologist 69 (1985). Agricultural colonization schemes have failed to provide landless peasants with a stable livelihood because of the unsuitability of Amazonian soils for sustained agricultural production. Many settlers are forced to give up their plots after a few years and become landless wanderers again. Guppy, "Tropical Deforestation," 62 Foreign Aff. 928, 942 (1984). In spite of the agricultural settlement projects in Amazonia, which are theoretically intended to provide land for landless peasants, the overall con- centration of land tenure has continued to increase throughout Brazil since the start of the Amazon development program. According to the official statistics of INCRA, the government's institute for agrarian reform, the proportion of the arable land area oc- cupied by large estates grew from 49 percent to 57 percent between 1967 and 1978, while the total area in the hands of smallholders decreased. Eglin and Thery, supra, at 96. This content downloaded from 165.193.178.76 on Sat, 02 Apr 2016 15:25:39 UTC All use subject to http://about.jstor.org/terms 376 PALLEMAERTS stability of the Amazonian forest ecosystem. Numerous Indian tribes have been dispossessed of their lands or exterminated by government agencies and private developers under the guise of "relocation" and "pacification." As one general unambiguously put it: "I am of the opinion, that an area as rich as this-with gold, uranium and diamonds-cannot afford the luxury of con- serving half a dozen Indian tribes who are holding back the development of Brazil."10 Another consequence of the economic development of Amazonia is rapid deforestation. It is estimated that at least 10 percent of the original Amazon forest has already been destroyed and that, if present trends con- tinue, most of it will have disappeared by the turn of the century, with an ir- reparable loss of genetic resources and serious ecological, hydrological, and climatic effects.1 Although it is clear that "the causes for the rapacious destruction of the Amazon rain forest are to be found in the same factors that are uprooting In- dian and peasant populations in Brazil,"'2 the Brazilian government is neither willing nor able to tackle the root causes of these economic and social problems 13 since doing so would inevitably call into question the le- gitimacy of the development model to which it adheres. Instead, the govern- ment is fighting the symptoms of the problem by applying window-dressing measures which do not require a fundamental reversal of entrenched policies. The Brazilian government has recently become aware of the potentially disastrous consequences of continued large-scale deforestation and has created a number of national parks and other reserves in Amazonia in order to preserve "representative samples" of both the tropical rain forest and its genetic resources.14 This conservation program is viewed as an integral ele- ment of the government's Amazon development policy s and has received technical and financial support from some of the same international agen- cies which helped promote much of the destructive "development" in the 10. Statement by General Fernando Ramos Pereira, Governor of Roraima, March 1975, quoted in Dqvis, supra note 7, at 103. 11. Estimates of deforestation in Amazonia very widely and there has been a lot of con- troversy about rate of destruction of the Amazon forest. The figures cited here are from Goodland, supra note 9, at 26 n.5, where a brief overview of a number of disparate estimates can be found. 12. Davis, supra note 7, at 162. 13. See Ledec, "The Political Economy of Tropical Deforestation," in Divesting Nature's Capital: The Political Economy of Environmental Abuse in the Third World, 179 (H. J. Leonard, ed. 1985); Plumwood and Routley, "World Rainforest Destruction - The Social Factors," 12 Ecologist 4 (1982). 14. Wetterberg, Prance and Lovejoy, "Conservation Progress in Amazonia: A Structural Review," 6 Parks, July-Sept. 1981, at 5. 15. Pddua and Quintao, "Parks and Biological Reserves in the Brazilian Amazon," 11 Ambio 309 (1982). This content downloaded from 165.193.178.76 on Sat, 02 Apr 2016 15:25:39 UTC All use subject to http://about.jstor.org/terms Indigenous Rights in Brazil 377 first place.'6 Rather than recognizing the Amazonian Indians' primary inter- est in forest conservation and reversing the common structural causes of de- forestation and despoliation of indigenous peoples, the government pursues separate, uncoordinated policies of Indian assimilation and selective forest protection. These policies are antagonistic to both the fundamental principle of territorial integrity and the right to economic and cultural self- determination of the Amazonian Indians, because they are completely subordinated to the Brazilian military and economic elites' interests in "na- tional security" and "national development." In this article I will attempt to demonstrate how Brazilian national legis- lation, as well as the international legal framework for the "protection" of In- dian land rights and the development and conservation of Amazonian forest resources, reflects political and economic objectives which are contrary to the interests of the indigenous peoples of the Amazon Basin and thus fail to protect their rights adequately. II. THE NATIONAL LEGAL FRAMEWORK A. The Legal Status of Indians in Brazil It is not the purpose of this article to give a detailed overview of all aspects of the position of Indians in the Brazilian legal system,17 since the focus here is on land rights and the right to forest natural resources. However, at the outset, I would like to emphasize three aspects of the general legal status of indigenous peoples in Brazil which are relevant to the specific questions which are the subject of this article. First, it should be noted that, unlike North American Indians, the Indian tribes of Brazil cannot rely on treaty rights which can be vindicated before national courts, albeit imperfectly. No treaties were ever concluded be- tween Brazilian Indians and the Portuguese colonists. Consequently, the rights of indigenous peoples within the Brazilian legal system are determined entirely by Brazilian national law, subject only to the international legal obli- gations of Brazil vis-a-vis other states. One example is I.L.O. Convention No. 107,18 to which Brazil is a party. However, that convention is of no practical 16. The F.A.O., for example, which cosponsored the survey of areas deserving protection, earlier provided financial assistance for livestock development in the Amazon. Eglin and Thery, supra note 9, at 68. 17. For a comprehensive general overview, see Medina, "The Legal Status of Indians in Brazil," 3 Am. Indian J., Sept. 1977, at 12. 18. Convention Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries (I.L.O. No. 107), 26 June 1957, 328 U.N.T.S. 247. This content downloaded from 165.193.178.76 on Sat, 02 Apr 2016 15:25:39 UTC All use subject to http://about.jstor.org/terms 378 PALLEMAERTS significance to the indigenous peoples themselves, since, regardless of whether Brazilian law recognizes the supremacy of international law and whether individuals would be able to claim any rights derived directly from this convention before Brazilian courts, it is questionable whether Brazil in fact violates the vague and inadequate standards of the convention.'9 Of even more importance, Indians have no access to the courts of Brazil. The Brazilian Civil Code defines Indians, legally known as silvicolas or "forest-dwellers," as "relatively incapacitated" and subject to a special legal regime of tutelage.20 This regime is laid down in the Indian Statute, a law which, according to its own terms, "regulates the juridical situation of the In- dians or forest-dwellers."21 Thus Indians are legally minors under the guard- ianship of the Brazilian state. The tutelage is exercised by a federal govern- ment agency in charge of Indian affairs, known as the National Indian Foun- dation (Funda~go Nacional do indio- FUNAI).22 The consequences of the Indians' legal incapacity as regards land rights are twofold: Indians are legally incompetent to own land 23 and cannot initiate legal proceedings in their own right24 to defend their precarious rights of "possession" and "usufruct" of the lands they inhabit.25 FUNAI is presumed to represent and protect the interest of the indige- nous communities subject to its guardianship. Indeed, the law provides that it is FUNAI's duty "to assume judicial or extrajudicial defense of the rights of the forest-dwellers."26 If, however, FUNAI in fact fails to fulfill its duty and to protect Indian rights against third parties or subordinates the interests of the Indians to the imperatives of the government's development policy, as is often the case, no legal recourse is available. Although the law stipulates that "the tribal groups or native community are legitimate parties for the defense of their rights in justice," 27 they cannot themselves seek redress because only FUNAI can take legal proceedings on their behalf, an unlikely proposition if FUNAI is itself an accomplice of the infringement of the rights in question. it is a legal anomaly of FUNAl's guardianship that, unlike other forms of guard- ianship under the Civil Code, it is not subject to any judicial control. The tutelage regime of the Indian Statute is inconsistent with the general principles of Brazilian law relating to guardianship in other respects as well. 19. See infra text accompanying notes 143-152. 20. Civil Code, art. 6, III. 21. Law No. 6.001 of 19 December 1973 dealing with the Indian Statute, art. 1 (official English translation published by the National Indian Foundation, Fundacao Nacional do Indio- FUNAI) [hereinafter cited as Indian Statute]. 22. Id. art. 7, para. 2. 23. Swepston, "The Indian in Latin America: Approaches to Administration, Integration and Protection," 27 Buffalo L. Rev. 715, 732 (1978). 24. Id. at 723. 25. See infra text accompanying notes 38-40. 26. Indian Statute, supra note 21, art. 35. 27. Id. art. 37. This content downloaded from 165.193.178.76 on Sat, 02 Apr 2016 15:25:39 UTC All use subject to http://about.jstor.org/terms Indigenous Rights in Brazil 379 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 the ward.28 Yet the avowed policy of FUNAI is not to ex- press and defend the interests of the Indians as defined by the Indians them- selves, but rather to balance these interests against the "national interest" of the Brazilian state. As the President of FUNAI himself stated in 1980, "A FUNAI staff member should, more than anything, act as a judge between two cultures: that of the Whites and that of the Indians. When he begins to defend one side more than the other he becomes biased and, for this rea- son, undesirable."29 This has led a conference of Brazilian lawyers and an- thropologists to conclude that "[t]he guardianship has been transformed into an obstacle to the free expression of the ward's will, whereas it is precisely the free expression of that will, i.e. that of the Indians, which ought to inform and guide the action of the guardian, i.e. that of FUNAI." 30o This problem is strikingly similar to the evolution of the concept of "trusteeship" from protec- tion to empowerment in United States Indian law.31 Finally, it should be stressed that the primary aim of the government's policy with regard to indigenous peoples is to integrate them into the domi- nant society and its market economy. The assimilationist goal of Indian pol- icy is expressly laid down in the Constitution of Brazil, which provides that "the Union shall have the power to legislate upon . .. incorporation of forest-dwelling aborigines into the national community."32 It is further spelled out in the Indian Statute which speaks of "integrating them, progres- sively and harmoniously, in the national communion."33 Indian tribal groups are classified into three legal categories: "isolated," "integrating," i.e. "accept- ing certain practices and ways of life common to the other sectors of the na- tional community, of which they stand progressively more in need for their very subsistence," and "integrated."34 Although the statute contains a num- ber of references to the Indians' "free choice of their way of living and means 28. Brazilian Indians and the Law 6 (Cultural Survival Occasional Paper No. 5, Oct. 1981). This publication contains English translations of a number of position papers adopted at an interdisciplinary conference of lawyers and anthropologists held at the Federal University of Santa Catarina at Florianopolis in October 1980. The full proceedings of the conference have been published as O Indio Perante O Direito (S. Coelho dos Santos ed. 1982). 29. Statement of Mr. Nobre da Veiga, President of FUNAI, to the newspaper O Estado de Sio Paulo, 3 June 1980, quoted in In the Path of Polonoroeste: Endangered Peoples of Western Brazil 62 (Cultural Survival Occasional Paper No. 6, Oct. 1981). 30. Brazilian Indians and the Law, supra note 28, at 6-7. 31. See Indian Law Resource Center, "United States Denial of Indian Property Rights: A Study in Lawless Power and Racial Discrimination," in Rethinking Indian Law 15, 19-24 (National Lawyers Guild ed. 1982). 32. Constitution of the Federal Republic of Brazil, art. 8, XVII, o (as amended 1969) (English translation from Constitutions of the Countries of the World (Blaustein and Flanz eds. 1982)) [hereinafter cited as Constitution]. 33. Indian Statute, supra note 21, art. 1. 34. Id. art. 4, II. This content downloaded from 165.193.178.76 on Sat, 02 Apr 2016 15:25:39 UTC All use subject to http://about.jstor.org/terms 380 PALLEMAERTS of subsistence" and to the need to respect "their cultural values, traditions, usages and customs," 35 these are little more than a thin veneer which scarce- ly conceals the overall thrust of the legislation toward a paternalistic and eth- nocentric model of "development." It is interesting to note, however, that Brazilian indigenous rights advo- cates have not denounced the Indian Statute as altogether antagonistic to the rights of Indians. By a subtle exercise of legal construction, they instead have attempted to demonstrate that the objective of the legislation is not as- similation, that "integration" should not be understood as synonymous with "assimilation."36 While strict adherence to the least patently assimilationist language of the statute may be a useful tactical ploy to achieve the greatest possible recognition of Indian rights within the established legal and political order, and hence may achieve a limited short-term improvement in the con- dition of the indigenous communities, it is doubtful whether reliance on ex- isting legislation can guarantee Indians a long-term survival as independent and distinct peoples. B. Indian Land Rights The status of Indian lands in Brazil is laid down in the constitution, which provides that "the lands occupied by forest-dwelling aborigines" are part of "the patrimony of the Union," i.e. are the property of the federal govern- ment.37 However, the Indians enjoy certain constitutionally protected rights on these lands, as specified in Article 198 of the constitution: "Lands inhab- ited by forest-dwelling aborigines are inalienable under the terms that fed- eral 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."38 Thus, under Brazilian law, Indian communities have no legal property right to their land, but only a right of "possession" and "usufruct," which is extremely precarious. The guarantee of Article 198 of the constitution is explicitly reiterated in Article 22 of the Indian Statute. In addition to the "occupied land" within the terms of Article 198 of the constitution, the statute also provides for different categories of "reserved areas" which "are not to be confused with those in immemorial possession of the native tribes.""39 These lands include "Indian reserves" and "Indian parks."40 It is not quite clear what is the difference in 35. Id. art. 2, IV, VI. 36. Brazilian Indians and the Law, supra note 28, at 2, 7. 37. Constitution, supra note 32, art. 4, IV. 38. Id. art. 198. 39. Indian Statute, supra note 21, art. 26. 40. Id. This content downloaded from 165.193.178.76 on Sat, 02 Apr 2016 15:25:39 UTC All use subject to http://about.jstor.org/terms Indigenous Rights in Brazil 381 legal status, if any, between "reserved areas" and "occupied lands." The dif- ference seems to be mainly technical, in that the establishment of a reserved area requires an act of legislation, i.e. a presidential decree, whereas the rights of Indians to "occupied lands" arise directly from the constitution, in- dependently of any administrative or legislative act. However, the explicit distinction made in the Indian Statute between "occupied lands" and "re- served areas" could also be read to imply a substantive legal difference, to the effect that the rights of Indians in "reserved areas" are not constitutionally protected but carn be abrogated by legislative act in the same manner as they were created. In any event, the distinction appears to be primarily of aca- demic interest, as the constitutional guarantee of Indian land rights itself has proved to be quite ineffective in practice and has failed to protect Indian lands from encroachment and destruction. In fact, an entire array of legal provisions operates to nullify in effect the Indians' constitutional right to guaranteed possession of their land and exclusive use of their natural re- sources. The constitutional provisions themselves have a double-edged rationale which is 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 resources as they are with preserving the Indians' ancestral rights. The fact that lands occupied by Indian tribes are the prop- erty of the Union according to Article 4, IV of the constitution has made In- dians pawns in a power struggle between the states and the federal govern- ment. As one commentator notes, Indian land rights have been a longstanding tug-of-war between the states and the federal government. It is reasonable to expect continued state resistance to the further recognition of In- dian occupancy or to the creation of new reserves since, under the new Indian Statute, land reverts to the federal government when no longer occupied by natives.4' While state governments thus have a vested interest in promoting illegal en- croachment on Indian lands in order to reduce federal power within their borders, the federal government has a short-term interest in recognizing In- dian occupany, if only as a means of establishing control over resources which would otherwise be under state jurisdiction. This federal interest is made explicit in Article 21 of the Indian Statute: "Land spontaneously and definitively abandoned by a native community or tribal group shall revert, by proposal of [FUNAIJ and declaratory act of the Executive Power, to the possession and full ownership of the Union."42 Moreover, Article 198 must be analyzed in the context of other constitutional provisions governing fed- 41. Grasmick, "Land and the Forest-Dwelling South American Indian: The Role of National Law," 27 Buffalo L. Rev. 759, 778 (1978). 42. Indian Statute, supra note 21, art. 21. This content downloaded from 165.193.178.76 on Sat, 02 Apr 2016 15:25:39 UTC All use subject to http://about.jstor.org/terms 382 PALLEMAERTS eral jurisdiction over land and resources. In reality, the effective rights of in- digenous communities over their lands are probably determined more by those other provisions than by the generous-sounding principles enounced in Article 198. For instance, Article 89 of the constitution empowers the Na- tional Security Council "to indicate the areas that are indispensable to the national security"43 and to control land use and economic activities in those areas.44 This power has been abused to appropriate Indians lands in Amazonia for highway construction, agricultural settlement and livestock projects.45 Other constitutional provisions indicate that the Indians' "exclu- sive usufruct of the natural resources" on their lands as affirmed in Article 198 does not in fact imply exclusive control of those resources. Indeed, ac- cording to Article 168, mineral deposits and hydropower resources do not belong to the occupier or even owner of the land on which they are found, but are under the control of the federal government. Thus it is the govern- ment, not the Indians, which controls exploitation and decides whether or not to allow mineral or hydropower development on Indian lands. Under the constitution, the only right of indigenous peoples with respect to mineral resources and hydropower on their territories is to receive a share of any ex- ploitation revenue through FUNAI in consideration of their "exclusive usu- fruct." 46 The constitution further confers on the federal Congress the power to legislate not only on mineral resources, but also on forests, hunting and fishing.47 Although theoretically it should be exercised with due regard to the constraints resulting from other provisions of the constitution, such as Ar- ticle 198, we shall see below how this legislative authority has been used to regulate hunting and the exploitation and conservation of forests in a man- ner which may interfere with indigenous resource use. As noted above, the constitution also gives the Congress a mandate to legislate on the "incorpora- tion of the forest-dwelling aborigines into the national community."48 This mandate is the constitutional basis of the Indian Statute which, as we shall see below, faithfully implements the objective of "incorporation," inter alia by allowing commercial resource exploitation activities on tribal lands. Another major problem is the recognition of Indian occupation of land. The fact that indigenous land-use patterns are quite different from the Western concept of "occupation" allows public authorities and private land speculators to regard vast areas of Indian territory as "vacant land" (terras devolutas) open to appropriation. "[T]he fiction of vacant land has been tra- ditionally invoked to justify the usurpation of these native areas."49 Thus, 43. Constitution, supra note 32, art. 89, III. 44. Id. art. 89, IV. 45. Decree-Law No. 1.164, supra note 4. 46. Constitution, supra note 32, art. 168, para. 2; cf. Indian Statute, supra note 21, art. 24. 47. Constitution, supra note 32, art. 8, XVII, h. 48. Id. art. 8, XVII, o. 49. Grasmick, supra note 41, at 773. This content downloaded from 165.193.178.76 on Sat, 02 Apr 2016 15:25:39 UTC All use subject to http://about.jstor.org/terms Indigenous Rights in Brazil 383 although the law expressly provides that "[r]ecognition of the right of the In- dians and tribal groups to permanent possession of the land they inhabit, in the terms of Article 198 of the Federal Constitution, shall be independent of the delimitation thereof,"50 the constitutional protection of Indian land rights is likely to be largely illusory unless the boundaries of Indian territory are somehow formalized and enforced by the government. One of the legal methods used by the government for preventing dis- orderly encroachment on Indian lands is the temporary "interdiction" of areas occupied by indigenous communities. The purpose of "interdiction" is not to preserve permanently these Indian lands from invasion by white set- tiers, but rather to avoid violent confrontations between Indians and tres- passers and to enable FUNAl officials to "pacify" the Indians, i.e., make peaceful contact with them and convince them to give up some of their lands for development. To this end, the interdiction decrees confer police powers on FUNAI to "prevent or restrict... during the period necessary for the pacification of the tribes, the access, transit or stay of persons or groups, whose activities are deemed inconvenient for the establishment of contact with the tribes."'51 The temporary character of these measures is made ex- plicit by instructions to FUNAI to notify the Minister of the Interior as soon as the "pacification" operations are completed so that the interdiction can be lifted.52 It is quite apparent, therefore, that the interdiction decrees are little more than legislative mandates for the removal of the Indian "obstacle" to development. FUNAl's "pacification" campaigns, especially in the late 1960s and early 1970s indeed have been denounced by anthropologists as dis- guised genocide, because these campaigns almost invariably resulted in the annihilation of entire tribes.53 Following the demise of the indigenous population, the appropriation of its land is legally completed by another presidential decree which terminates the interdiction and declares that the area has "reverted to the possession and full ownership of the Union in ac- cordance with Article 21 of the [Indian Statute]."54 The land is then officially made available for some economic use, such as agricultural settlement, in accordance with the land reform laws.ss The establishment of Indian reserves hardly constitutes a more perma- nent guarantee of Indian land rights than the declaration of interdicted areas. For example, the decree establishing a reserve for the Warimiri-Atroari tribe, 50. Indian Statute, supra note 21, art. 25. 51. See, e.g., Decree No. 62.995 of 16 July 1968, art. 2. 52. See id. art. 4. 53. From a review of FUNAI pacification expeditions along the Trans-Amazon highway net- work between 1970 and 1974, anthropologist Shelton Davis concluded that, during this period, FUNAI "became a chief accomplice in the processes of ethnocide that were unleashed on the Indian tribes of the Amazon Basin." Davis, supra note 7, at 76. 54. See, e.g., Decree No. 83.541 of 4 June 1979, 1979 IV Colego 153, art. 2. 55. See id. art. 3. This content downloaded from 165.193.178.76 on Sat, 02 Apr 2016 15:25:39 UTC All use subject to http://about.jstor.org/terms 384 PALLEMAERTS purportedly "to give effect to Article 198 of the Constitution,"s56 also contains a provision instructing FUNAI to submit to the Minister of the Interior within two years of the establishment of the reserve a proposal "for the reduction of the reserved area, in so far as it is deemed excessive in respect of the needs of the Indians which occupy it." s7 This legislative mandate for confining an in- digenous community to a small portion of its ancestral lands is a clear illus- tration of the "vacant land" myth of colonial ideology which still pervades the official policy of the Brazilian government. In a later decree concerning the same indigenous territory FUNAI is instructed to pacify the Waimiri- Atroari within a larger interdicted area and subsequently to demarcate "those lands effectively i~nhabited and occupied by the indigenous groups."s58 The standard procedure for determining which areas are subject to the legal regime of Article 198 of the constitution is the "administrative delimita- tion" (demarcadio administrativa) of native lands, provided for in Article 19 of the Indian Statute. The demarcation of Indian land is the mechanism, outlined in the Indian Statute, for guaranteeing the protection of that land. Technically, however, the right [of the Indians] to have their land protected precedes the obligation of the govern- ment to demarcate it. Specifically, the function of demarcation ... is to give material form to the legal protection of Indian land.59 Since less than half of Brazil's Indian population lives within the boundaries of officially established indigenous reserves,60 the process of administrative delimitation is of crucial importance for the protection of the lands of the majority of the indigenous peoples who live outside such reserves. The re- sponsibility for the delimitation lies with FUNAI, which establishes the limits of Indian lands by an administrative decision that is taken following a field survey by an anthropologist and an engineer.61 This decision is subject to ho- mologation by presidential decree.62 FUNAI has failed to complete the limi- tation process within a five-year period as prescribed by the Indian Statute 63 and has often "carried [it] out in disregard of anthropological and legal precepts."64 In fact, administrative delimitation appears to be a negative process as much as a positive one: it is aimed at least as much at certifying that certain lands are not subject to Indian occupation in order to consolidate land titles 56. Decree No. 68.907 of 13 July 1971, 1971 VI Cole~io 74, art. 1. 57. Id. art. 3. 58. Decree No. 86.630 of 23 November 1981, 1981 VIII Colego 242, art. 3. 59. Brazilian Indians and the Law, supra note 28, at 732. 60. Swepston, supra note 23, at 732. 61. Decree No. 76.999 of 8 January 1976, 1976 II ColeIeo 28, art. 2. 62. Indian Statute, supra note 21, art. 19, para. 1. 63. Id. art. 65. 64. Brazilian Indians and the Law, supra note 28, at 5. This content downloaded from 165.193.178.76 on Sat, 02 Apr 2016 15:25:39 UTC All use subject to http://about.jstor.org/terms Indigenous Rights in Brazil 385 and promote development, as it is at making effective the constitutional pro- tection of Indian lands. It is not coincidental that FUNAI has been more dili- gent in issuing so-called "negative certificates" to land speculators attesting to the absence of Indians on certain parcels of land, than in fixing the limits of tribal lands for the benefit and protection of the native communities them- selves.6s This tendency is likely to be confirmed by a recent presidential decree which provides for the involvement of state governments in the ad- ministrative delimitation process.66 C. Exploitation of Natural Resources on Indian Lands Not only does Brazilian law fail to protect adequately the land base of indig- enous communities, it also deprives those communities of effective control over the natural resources necessary for their independent economic subsis- tence and cultural survival, even within those lands to which they have a for- mally recognized right of occupation. The constitutionally guaranteed right of Indians to the "exclusive usu- fruct of the natural resources and of all useful things" existing on the lands they occupy is rhetorically reiterated in several provisions of the Indian Stat- ute.67 However, the same statute also contains a number of provisions which are effectively inconsistent with this right. These contradictions are re- flected in the statutory definition of the concept of "usufruct": "The usufruct assured to Indians or forest-dwellers comprises the right to possess, use and receive the natural wealth and all the utilities existing on land occupied by them, and likewise the product of the economic exploitation of said natural wealth and utilities." 68 In other words, the Indian Statute regards commercial exploitation by outsiders of natural resources on Indian lands as compatible with the Indian right of usufruct, as long as the Indians nominally derive some revenue from such activities. First, the statute makes clear that the right of Indian communities to the natural resources on their lands remains entirely subordinate to the "national interest." Indeed the statute authorizes "intervention" in native areas, inter alia "to carry out public works of interest to national development" and "to work valuable subsoil deposits of outstanding interest for national security and development." 69 For these purposes the president can decree the "tem- porary transfer" or even "permanent removal" of tribal groups from their 65. Id. See also Price, "The World Bank vs. Native Peoples: A Consultant's View," 15 Ecologist 73, 74, 77 n.3 (1985). 66. Decree No. 88.118 of 23 February 1983, 1983 II Coleg:o 128, art. 2, para. 3. 67. Indian Statute, supra note 21, art. 2, V, IX, art. 22. 68. Id. art. 24 (emphasis added). 69. Id. art. 20, para 1(d), (f). This content downloaded from 165.193.178.76 on Sat, 02 Apr 2016 15:25:39 UTC All use subject to http://about.jstor.org/terms 386 PALLEMAERTS lands.70 The statute stipulates that in the case of removal "the native commu- nity.., shall be assigned an area equivalent to the former one, ecological condition included." 7'1 Yet it is common knowledge among anthropologists that Amazonian Indians generally do not survive forced relocation. At least one commentator has noted: A profound knowledge of the area is essential for survival. Thus, if a group is moved away from its traditional area, its chances for survival are jeopardized. Even if the new area is ecologically similar to the group's homeland its members may starve before they can find necessary resources.72 Even if Indians are not physically separated from their resource base by "transfer" or "removal," the law permits commercial activities on Indian lands which destroy the very forest resources on which they depend for their sub- sistence. According to the Brazilian Forestry Code (Cddigo Florestal) forests on In- dian lands are "subject to the regime of permanent preservation" (preser- vag'Ao permanente) for the purpose of "maintaining the environment neces- sary for the survival of the forest-dwelling populations." 73 The felling of trees in forests of permanent preservation without the permission of the compe- tent authority is prohibited.74 The Indian Statute, however, reduces this "permanent preservation" status to a legal fiction by expressly authorizing deforestation of Indian lands. The felling of timber in the native forests considered to be under the regime of permanent preservation, in accordance with Item g and Paragraph 2 of Article 3 of the Forestry Code, is conditioned on the existence of programs or projects for developing the respective land by crop and stock farming, industry or reforesta- tion.75 These are precisely the types of "development" projects which almost inevi- tably result in the destruction of "the environment necessary for the survival of the forest-dwelling populations." Large-scale livestock projects in particu- lar have been criticized by experts as the most ecologically destructive and unsustainable of all land uses in the Amazon region. According to the staff ecologist of the World Bank, "Conversion of tropical rainforest ecosystems into pastures for cattle rates the worst, environmentally, of all the con- ceivable alternatives." 76 Yet, according to the Brazilian government's official 70. Id. art. 20, para. 2. 71. Id. art. 20, para. 3. 72. Price, "What Lands Should Be Reserved?" in in the Path of Polonoroeste, supra note 29, at 62 (emphasis added). 73. Forestry Code, Law No. 4.771 of 15 September 1965, reprinted in Legislagao Florestal 3 (V. Farah ed. 1967), art. 3(g), para. 2. 74. Id. art. 26(b). 75. Indian Statute, supra note 21, art. 46. 76. Goodland, supra note 9, at 18. This content downloaded from 165.193.178.76 on Sat, 02 Apr 2016 15:25:39 UTC All use subject to http://about.jstor.org/terms Indigenous Rights in Brazil 387 report to the I.L.O., stock-raising projects are being run on Indian lands both by FUNAI itself and by private entrepreneurs to whom FUNAI leases the land, with the Indians as cheap labor.77 Commercial exploitation of mineral resources on Indian lands is also ex- plicitly authorized by the Indian Statute. Large-scale mining operations dis- rupt the ecological integrity of the forest environment and the traditional in- digenous subsistence economy. Although they are regarded by experts as less environmentally harmful than other "development" projects,8 they are nonetheless incompatible with the economic self-determination of the Ama- zonian Indians. Even if they had a legal right to full ownership of their tribal lands, as opposed to the mere right of possession recognized by the Consti- tution, Indians would be unable to prevent mineral development if they wished to, because, according to Brazilian law, ownership of the ground does not include title to the mineral deposits in the subsoil, which are under the exclusive jurisdiction of the federal government.79 In 1969, before the enactment of the Indian Statute, the Ministers of the Navy, the Army, and the Airforce, jointly exercising the powers of the presi- dent, issued a decree legalizing the exploration and exploitation of mineral resources on Indian lands, "having regard to" the provisions of the constitu- tion guaranteeing the "exclusive usufruct" of the Indians.80 This decree is quite typical of the obsession of military dictatorships with formal legality as a cloak for substantive injustice. The decree requires that FUNAI be con- suited before prospection permits are issued for areas"presumably inhabited by forest-dwellers" and that mining concessions can only be granted for such areas subject to prior agreement between the mining company and FUNAI "for the purpose of preserving the right conferred on forest-dwellers by Arti- cle 186 of the Constitution."8' More significantly, however, the decree re- quires FUNAI to submit a complete map of Indian lands to the National Department of Mineral Production (Departamento Nacional da Produ&io Mineral- D.N.P.M.), the government agency in charge of licensing mining operations, within two months. Thereafter, if FUNAI fails to provide this in- formation within the prescribed term, D.N.P.M. is relieved of any responsi- bility for noncompliance with the provisions of the decree.82 Given the fact that FUNAI has to this day been unable to complete the demarcation of In- dian lands, one can imagine that the data, if any, supplied by FUNAI to 77. Swepston, supra note 23, at 732. 78. Goodland, supra note 9, at 12-13. 79. Constitution, supra note 32, art. 168; Mineral Code, Decree-Law No. 227 of 28 February 1967, art. 84, reprinted in ConsolidagAo das Leis Sobre Mineragao 65 (1973). 80. Decree No. 65.202 of 22 September 1969, preamble, reprinted in Consolidagdo das Leis Sobre Mineracio, supra note 79. 81. Id. arts. 1, 2. Article 186 of the Constitution of 1967 was essentially the same as Article 198 of the Constitution of 1969, which is quoted supra text accompanying note 38. 82. Decree No. 65.202, supra note 80, art. 3, para. 2. This content downloaded from 165.193.178.76 on Sat, 02 Apr 2016 15:25:39 UTC All use subject to http://about.jstor.org/terms 388 PALLEMAERTS D.N.P.M. in the short time granted by the decree were grossly inadequate to protect the interests of the Indians. Apparently, the real purpose of the decree was only to establish a procedure for legitimating unrestrained access to mineral resources on Indian lands. The Indian Statute permits mining on Indian lands subject only to "prior understandings" with FUNAI "in order to safeguard the interests of the In- dian Estate and the well-being of the forest dwellers." 83 It also stipulates that the royalties "shall revert to the benefit of the Indians and constitute a source of native income."84 The later provision, ironically, is in fact more detrimen- tal than beneficial to the interests of the Indians, as it gives FUNAI a vested interest in promoting commercial mining on Indian lands, since the "native income" (renda indfgena) is administered by FUNAI85 and one tenth of it is earmarked to fund FUNAl's own administrative budget.86 New regulations governing mining on Indian lands were laid down in a presidential decree of November 1983.87 According to these regulations, mining operations shall only be permitted on indigenous lands where there are "strategic minerals necessary for national security and development."88 In principle, concessions for such operations shall only be granted to public enterprises owned by the federal government,89 although "in exceptional cases" national private enterprises may also be granted prospection licenses and mining concessions.90 The decree also stipulates that "whenever possi- ble" the mining companies shall "use indigenous labor, taking into account the working capacity and the degree of acculturation of the forest-dweller."9' Although it contains some nominal safeguards against "prejudice to in- digenous culture, customs and traditions,"92 the underlying purpose of the decree is clearly to develop mineral resources on Indian lands, using indians as a cheap and docile work force, in order to increase Brazil's export earn- ings. Thus Indian culture is to be sacrificed for the repayment of the Brazilian foreign debt, through the destruction of the natural resource base of the in- digenous economy and the proletarianization of the Indian people. D. Conservation of Natural Resources on Indian Lands The economic and cultural self-determination of indigenous peoples can be threatened not only by legislation permitting the commercial exploitation of 83. Indian Statute, supra note 21, art. 45, para. 2. 84. Id. art. 45, para. 1. 85. Id. art. 43. 86. Decree No. 68.377 of 19 March 1971, 1971 II Coleq;o 258, art. 4, V. 87. Decree No. 88.985 of 10 November 1983, 1983 VIII Colegio 192. 88. Id. art. 4. 89. Id. 90. Id. art. 4, para. 1. 91. Id. art. 8. 92. Id. art. 7, para. 1. This content downloaded from 165.193.178.76 on Sat, 02 Apr 2016 15:25:39 UTC All use subject to http://about.jstor.org/terms Indigenous Rights in Brazil 389 certain resources on Indian lands but also, paradoxically, by government- imposed "conservation" measures restricting the access of indigenous peoples to the natural resources on which they depend for their subsistence. While Amazonian Indians have an intimate knowledge of forest ecology and have empirically developed sophisticated methods for the sustainable management and exploitation of renewable natural resources, so that their traditional economic activities are fully compatible with the conservation of these resources, the Western preservationist concept of "conservation" is completely alien to them and potentially antagonistic to their interests. Although in principle there should be no incompatibility between indige- nous rights and conservation objectives,93 a policy such as that presently pursued by the Brazilian government, promoting, on the one hand, wide- spread destruction of renewable forest resources for commercial profit, while, on the other hand, preserving "representative samples" of the forest by excluding all forms of human activity, is inconsistent with the interests of indigenous peoples. The Indians' right of "exclusive usufruct of the natural resources" of the lands they occupy includes the right to hunt, fish and use other renewable forest resources. This is specified in the Indian Statute which states that "[t]he Indian is guaranteed rights to the practice of hunting and fishing in the areas occupied by him, any police measures that may possibly have to be applied being carried out persuasively."94 The exclusivity of the right is guaranteed by another provision of the statute which states that "[i]n these areas, any person foreign to the tribal groups or native communities is prohibited to practice hunting, fishing or fruit gathering."95 However, it is clear from the language of the statute that the use by Indians of natural resources on Indian lands is not subject only to such restrictions as may be provided by their own customary conservation rules, but can also be subject to any "police mea- sures" the Brazilian state may deem necessary.96 The basic provisions of Brazilian law relating to forest conservation are 93. See generally Clad, "Conservation and Indigenous Peoples: A Study of Convergent Inter- ests," 8 Cultural Survival Q., Dec. 1984, at 68. 94. Indian Statute, supra note 21, art. 24, para. 2 (emphasis added). 95. Id. art. 18, para. 1. 96. Id. art. 24, para. 2. See also art. 28, para. 2. Technically, indigenous subsistence hunting seems to violate the Fauna Protection Law, which prohibits "professional hunting" and requires all hunters to carry a license. Law No. 5.197 of 3 January 1967, 1967 I ColeEo 581, art. 1, 2, 13. This law does not recognize subsistence hunting as a separate legal category subject to a special regime. One commentator, noting this legal vacuum, has observed that it is an unsolved "question of legal interest" whether or not aboriginal hunting requires a license. P. A. Lemme Machado, Direito Ambiental Brasileiro 262 (1982). With regard to indigenous hunting the general provisions of the Fauna Protection Law presumably are superseded by the special provisions of the Indian Statute guaranteeing indian hunting rights. But it remains unclear whether this implicit "license" applies only in reserves and demarcated lands or in any indigenous hunting grounds, whether or not permanently "occupied." In any event, this legal vacuum illustrates how conservation legislation is enacted without regard to indigenous rights. This content downloaded from 165.193.178.76 on Sat, 02 Apr 2016 15:25:39 UTC All use subject to http://about.jstor.org/terms 390 PALLEMAERTS to be found in the Forestry Code.97 Article 5 of this code empowers the government to create National Parks and Biological Reserves, which are defined as "areas with exceptional natural attributes where the protection of flora, fauna and scenic beauty is combined with educational, recreational and scientific objectives." 98 Another land-use category which is instituted by this article is that of National Forests, which can be designated by the gov- ernment for "economic, technical or social purposes." 99 In practice, the pri- mary purpose of National Forests appears to be economic: the competent government agency is to "promote the multiple use of [their natural resources... under a regime of sustainable yield"1o0 and may to this end conclude agreements with private companies "aimed at the rational use of the natural resources existing in the forest"l0' - presumably a legal euphe- mism for logging concessions. The government has also made use of its powers under the old Forestry Code of 1934 to designate certain areas of the Amazon Basin as "Forest Reserves."102 The term "reserve" is quite misleading, because these areas are in fact classified as production forests (florestas de rendimento).'03 The forestry agency considers them "a transitory land-use category... afforded little or not protection."104 All the above areas are under the jurisdiction of the Brazilian Forestry Development Institute (Instituto Brasileiro de Desenvolvimento Florestal- I.B.D.F.), a federal government agency which is in charge of both the man- agement of protected areas and the promotion and regulation of commer- cial forestry and the forest products industry,s05 an obvious conflict of interests. An additional legal category of protected areas recently created by new legislation, the so-called Ecological Stations (Estag6es Ecoldgicas), are de- fined as "representative areas of Brazilian ecosystems destined for basic and applied ecological research, the protection of the natural environment and the development of environmental education."'06 These areas are under the control of the Department of the Environment (Secretaria Especial do Meio Ambiente- S.E.M.A.).o07 97. Law No. 4.771, supra note 73. 98. Id. art. 5(a). 99. Id. art. 5(b). 100. See, e.g., Decree No. 73.684 of 19 February 1974, 1974 II Coleg:o 245, art. 2 (establishing Tapaj6s National Forest). 101. Id. art. 5. 102. See, e.g., Decree No. 51.024 of 25 July 1961, 1961 VI ColeqBo 145 (establishing Jaru Forest Reserve). 103. Forestry Code, Decree No. 23. 793 of 23 January 1934, art. 3(d). 104. Wetterberg, Prance and Lovejoy, supra note 14, at 6. 105. Decree-Law No. 289 of 28 February 1967, arts. 3, VII, VIII, 5, VIII. 106. Law No. 6.902 of 27 April 1981, 1981 11 Colegio 19, art. 1. 107. The ratio legis for the establishment of Ecological Stations appears quite dubious, especially in view of a recent presidential decree- probably the most baroque piece of This content downloaded from 165.193.178.76 on Sat, 02 Apr 2016 15:25:39 UTC All use subject to http://about.jstor.org/terms Indigenous Rights in Brazil 391 According to the Forestry Code, all forms of resource exploitation are prohibited in National Parks.108 These restrictions are further specified in detailed regulations, which explicitly ban hunting and fishing and the gather- ing of fruits and other forest products.109 Similar restrictions also apply in Biological Reserves1o and in Ecological Stations,"' and presumably in Forest Reserves."2 In the early 1960s an experimental attempt was made to combine envi- ronmental conservation and the protection of Indian lands by the establish- ment of the Xingu National Park, covering the territories of thirteen tribal groups in Mato Grosso."3 The dual purpose of the park was spelled out as follows in a presidential decree: (1) To preserve the original flora and fauna of the area against whatever forms of destruction, exploitation or decharacterization as a sample of Brazilian nature which in scientific and physiographic value represents national heritage; (2) To guarantee to the indigenous population in the area of the park possession of the lands they occupy under Art. 216 of the Federal Constitution."4 The Xingu National Park was generally considered a successful experiment in indigenous policy 1s but it succumbed to the Amazonian development program. In 1971 the park was cut through by one of the Amazonian high- ways and the land to the north of the road, home of the Txukahamai Indi- ans, was excluded from the park's territory."6 FUNAI was instructed to "at- tract" the Txukahamai within the new park boundaries, in order to "return the lands inhabited by them to the possession and full ownership of the Union."'7 The Xingu National Park was abolished as an independent ad- ministrative entity on the establishment of FUNAI 18 but the current legal status of the park's lands is unclear."9 Although it was originally established environmental legislation ever enacted - which provides that nuclear power plants shall be located in Ecological Stations! Decree No. 84.973 of 29 July 1980, 1980 VI Colegio 131, art. 1. 108. Forestry Code, art. 5. 109. Regulamento dos Parques Nacionais Brasileiros, Decree No. 84.017 of 21 September 1979, 1979 VI Colegio 225, arts. 13, 15, para. 2, 38. 110. Law No. 5.167 of 3 January 1967, 1967 I Cole~io 581, art. 5(a). 111. Law No. 6.902, supra note 106, art. 7, para. 1. 112. See, e.g., Decree No. 51.024, supra note 102, art. 5. 113. Decree No. 50.455 of 14 April 1961. See C. Junqueira, The Brazilian Indigenous Problem and Policy: The Example of the Xingu National Park 11 (AMAZIND/IWGIA Doc. No. 13, 1973). 114. Decree No. 51.084 of 31 July 1961, art. 1 (English translation in R. Goodland and H. Irwin, Amazon Jungle: Green Hell to Red Desert? 76-77 (1975)). Article 216 of the Constitution of 1946 was essentially the same as Article 198 of the Constitution of 1969, which is quoted supra text accompanying note 38. 115. Junqueira, supra note 113. 116. Decree No. 68.909 of 13 July 1971, art. 2. 117. Id. art. 3. 118. Law No. 5.371 of 5 December 1967, art. 7. 119. Medina, supra note 17, at 21 n.75. This content downloaded from 165.193.178.76 on Sat, 02 Apr 2016 15:25:39 UTC All use subject to http://about.jstor.org/terms 392 PALLEMAERTS with reference to the conservation provisions of the Forestry Code, Xingu National Park is not included in the official list of Brazilian national parks.120 It is apparently no longer regarded as having the legal status of a National Park. Its present status is probably that of an "Indian park" as defined in the Indian Statute, and subject to the jurisdiction of FUNAI: An Indian park is an area contained within land in the possession of Indians, whose degree of integration is sufficient to allow economic, educational and sanitary assistance being supplied to them by the agencies of the Union, wherein the flora, fauna and natural scenery of the region are to be preserved.12" Considering the resource exploitation provisions of the Indian Statute discussed above, it is clear that this status is grossly inadequate both for the protection of indigenous culture and for environmental conservation. There are some indications in government policy that protected areas as defined in Article 5 of the Forestry Code and "native lands" as defined in Arti- cle 17 of the Indian Statute are regarded as mutually exclusive land-use cate- gories. For example, in 1961, the boundaries of the Sete Quedas National Park were drawn so as to exclude the "habitat" (sic) of the Xetas Indians.'22 The park limits were established in collaboration with the Indian Protection Service (S.P.I.- FUNAI's predecessor) which was "to adopt measures for the observance of the interests of the Indians inhabiting the region."123 The establishment of the Monte Pascoal National Park in the mangrove forest of Bahia in 1961 apparently conflicted with Indian land rights.124 In 1977 I.B.D.F. reported to the International Union for Conservation of Nature and Natural Resources that "Indian settlements remain in five percent of the park, near the coast, but plans are under way for relocation."12s However, the conflict was solved in 1980 by returning 7,000 hectares (17,290 acres) of the park area to the Pataxos Indians, in apparent recognition of the legal su- premacy of their constitutionally protected right of occupancy.126 In the late 1970s, when the ecological consequences of the Amazon development program became a matter of official concern for the Brazilian government itself, a "conservation" component was tagged on to ongoing development schemes. In 1976, I.B.D.F. published an "Analysis of Nature Conservation Priorities in the Amazon," a study prepared in cooperation 120. International Union for Conservation of Nature and Natural Resources, IUCN Directory of Neotropical Protected Areas 64 (1982) [hereinafter cited as IUCN Directory]. 121. Indian Statute, supra note 20, art. 28. 122. Decree No. 50.665 of 30 May 1961, art. 2, reprinted in Legislagao Florestal, supra note 72, at 88. 123. Id. art. 3. 124. Decree No. 242 of 29 November 1961, reprinted in Legisla~io Florestal, supra note 73, at 122. 125. 1 International Union for Conservation of Nature and Natural Resources, World Direc- tory of National Parks and Other Protected Areas, BRA.3.9 (1977) (emphasis added). 126. IUCN Directory, supra note 120, at 80. This content downloaded from 165.193.178.76 on Sat, 02 Apr 2016 15:25:39 UTC All use subject to http://about.jstor.org/terms Indigenous Rights in Brazil 393 with the F.A.O.'27 Criteria were developed to select "representative samples" of Amazonian ecosystems which should be preserved, especially so-called "pleistocene refugia," i.e., centers of genetic diversity. These methods were originally developed by United States experts and implemented in Brazil with the support of private conservation organizations such as the Interna- tional Union for Conservation of Nature and Natural Resources and the World Wildlife Fund. In cooperation with FUNAI, the land reform agency INCRA, and other government agencies, I.B.D.F. parcelled out Amazonia into lands for agricultural settlement, cattle ranches, industrial forestry and other forms of economic development, protected areas, and indigenous reserves.128" On World Environment Day, 5 June 1979, President Figueiredo officially approved a "National System Plan for Conservation Units," recom- mending the establishment of 17.5 million hectares (43.225 million acres) of new parks and reserves in the Amazon.129 As the director of the National Parks Department of I.B.D.F. emphasizes: "The growth of parks and reserves in the Amazon occurred within the context of [the] national programs for economic development."13 The Brazilian government's renewed interest in conservation is not unrelated to its realization that most Amazon develop- ment projects have proved not only ecologically disastrous but also eco- nomically unsuccessful,131 and that the genetic diversity of the virgin Amazon forest constitutes a valuable economic resource with potential for future commercial exploitation.132 Since 1979, a large number of new "conservation units" with a total area of more than seven million hectares (17.29 million acres) have been created in the Amazon Basin. Some of these protected areas are extremely large and overlap with Indian lands. At a conference in October 1980, Brazilian an- thropologists and lawyers expressed concern at "the consequences of recent action by official agencies permitting the superimposition of areas set aside for environmental protection onto indigenous areas" which "creates prob- lems which are different to solve under current law."133 The Pico da Neblina National Park, covering an area of 2.2 million hect- ares (5.434 million acres) on the border with Venezuela, includes the lands 127. Wetterberg, Prance and Lovejoy, supra note 14, at 5-6. 128. Id. at 7. See also Decree No. 83.518 of 29 May 1979, 1979 IV ColegAo 140 (establishing working group on Amazonian forest policy). 129. Wetterberg, Prance and Lovejoy, supra note 14, at 7. 130. PAdua and Quintio, supra note 15. 131. The policy of subsidized livestock development has been especially "disastrous both financially and environmentally." Goodland, supra note 9, at 18. In certain areas of Amazonia, 85 percent of cattle ranches have already gone out of business. Id. at 19. Cattle-breeding projects would not have been economically viable without massive government subsidies of up to 70 percent of total project costs. Id. at 22. 132. For example, the forest can be used by the pharmaceutical and plant-breeding indus- tries. See N. Myers, The Primary Source: Tropical Forests and Our Future (1984). 133. Brazilian Indians and the Law, supra note 28, at 9. This content downloaded from 165.193.178.76 on Sat, 02 Apr 2016 15:25:39 UTC All use subject to http://about.jstor.org/terms 394 PALLEMAERTS of several Indian tribes, presumably the Mandaw~ka, Karut~na, and Yabaina.134 Yet the decree establishing the park does not contain any provi- sions acknowledging Indian land rights in the area.135s According to 1.B.D.F. "[a] large part of the area is title-free. Indians are present, but there are no proclaimed Indian Reserves."136 The Pacaas Novos National Park in the state of Rond6nia largely over- laps an interdicted area inhabited by the Uru-Eu-Wau-Wau tribe,'37 but simi- larly no provision is made for Indian rights in the constitutive decree.'38 The park area is reported as "owned by IBDF"139 but is being illegally invaded by settlers.140 Following clashes between the trespassers and the Indians, FUNAI sent an expedition to the area in 1980 to "pacify" the Uru-Eu-Wau- Wau.141 As these examples illustrate, there is a potential conflict between the constitutional provisions regarding the exclusive use of natural resources on Indian lands by Indians and the provisions of the conservation legislation stipulating that the flora and fauna of National Parks and Biological Reserves be strictly protected. From this clash of legislation objectives it is necessary to salvage that which has constitutionally been guaranteed the Indians. Administratively, therefore, it is im- portant to make ecological preservation compatible with the subordinate to the Indians' prior rights. ... That is, they must be guaranteed the possibility of carry- ing out their economic, social and cultural activities and not be prevented from continuing to hunt, fish and gather wild foods.142 How exactly this is to be achieved is not specified, but it would seem logical that Article 198 of the constitution, a superior rule of law within the hierar- chy of the Brazilian legal system, should prevail over the provisions of the Forestry Code and national parks decrees, in so far as these are inconsistent with the "exclusive usufruct" of the Indians. ll. THE INTERNATIONAL LEGAL FRAMEWORK In this section, I will discuss briefly the provisions of a number of interna- tional agreements to which Brazil is a party and which affect indigenous 134. Compare Wetterberg, Prance and Lovejoy, supra note 14, at 9 fig. 5 with Goodland and Irwin, supra note 114, at 59 fig. 7. 135. Decree No. 83.550 of 5 June 1979, 1979 IV Colegso 160. 136. IUCN Directory, supra note 120, at 67. 137. In the Path of Polonoroeste, supra note 29, at 32. 138. Decree No. 84.019 of 21 September 1979, 1979 IV Colelio 262. 139. IUCN Directory, supra note 120, at 69. 140. Natural Resources Defense Council, Indications of Natural Resources and Ecological Mis- management in the World Bank Financed Brazil Northwest Development Program 15-17 (12 October 1984) (unpublished memorandum submitted to World Bank). 141. In the Path of Polonoroeste, supra note 29, at 45. 142. Brazilian Indians and the Law, supra note 28, at 9. This content downloaded from 165.193.178.76 on Sat, 02 Apr 2016 15:25:39 UTC All use subject to http://about.jstor.org/terms Indigenous Rights in Brazil 395 rights and the development and conservation of natural resources in the Amazon Region. Not surprisingly, Brazilian state practice at the international level has consistently been to emphasize on every possible occasion that these matters fall within the ambit of national sovereignty and are the exclu- sive responsibility of each government, and to oppose any substantive inter- national legal obligations which would restrict Brazil's freedom to dispose of the Amazon forest and its indigenous peoples in accordance with its self- defined national interest. Consequently, whatever international agreements Brazil has entered into either generally reflect its own national priorities, sub- ordinating indigenous rights and conservation to development, or leave suf- ficient room for discretion to accommodate them. A. I.L.O. Convention No. 107143 Brazil ratified I.L.O. Convention No. 107 on 18 June 1965. The Convention was promulgated by presidential decree '44 and is presumably thereby incor- porated into Brazilian law. The Indian Statute expressly provides that FUNA! "shall disseminate and respect the norms of Convention 107."u145 However, the provisions of the I.L.O. Convention concerning indige- nous lands allow for such broad state discretion that it would be difficult to find even Brazil in substantive violation of them. Indeed, the language of Ar- ticle 12, paragraph 1 seems to have been written to fit the twin tenets of"na- tional security" and "national development" which are the foundation of the Brazilian military's ideological discourse rationalizing the "integration" and "penetration" of the Amazon.146 The populations concerned shall not be removed without their free consent from their habitual territories except in accordance with national laws and regulations for reasons relating to national security, or in the interest of national economic de- velopment or of the health of the said populations.147 The provisions of the Indian Statute permitting "intervention" on Indian lands 148 appear to have been carefully worded in a manner not overtly in- consistent with the above provision of the 1.L.O. Convention. Nevertheless, there is one aspect of the I.L.O. Convention which may well be worth further consideration by indigenous rights advocates. The Convention provides that "[t]he rights of ownership, collective or individual, of the members of the populations concerned over the lands which these 143. I.L.O. Convention No. 107, supra note 18. 144. Decree No. 58.824 of 14 July 1966, 1966 VI ColeC;o 79. 145. Indian Statue, supra note 21, art. 66. 146. Cardoso and M(iller, supra note 3, at 10. 147. I.L.O. Convention No. 107, supra note 18, art. 12, para. 1. 148. Indian Statute, supra note 21, art. 20. This content downloaded from 165.193.178.76 on Sat, 02 Apr 2016 15:25:39 UTC All use subject to http://about.jstor.org/terms 396 PALLEMAERTS populations traditionally occupy shall be recognized."149 Yet, as discussed above,'s0 Brazilian law does not recognize the Indians' right of ownership, but only their rights of possession and usufruct. This appears prima facie to be inconsistent with Article 11 of the 1.L.O. Convention. The inconsistency is evident when one compares the official Portuguese translation of the Con- vention as promulgated in Brazil with the provisions of the Brazilian Consti- tution relating to indian lands. The "right of ownership" in Article 11 is trans- lated as "direito de propriedade"l'5 but Article 198 of the constitution grants the Indians only the right of possession (posse) while the right of ownership (dominio or propriedade) of Indian lands is vested in the federal govern- ment.'52 Of course, even if the Brazilian Constitution were to recognize the right of ownership in accordance with the I.L.O. Convention, that would not, under Brazilian law, increase indigenous control over resources, especially mineral resources, as discussed above. The I.L.O. Convention does not specify to what extent ownership should include control over resources, which is an important flaw. B. Treaty for Amazonian Cooperation 's3 This treaty, also known as the Amazon Pact, is viewed as the cornerstone of Brazilian diplomacy in the Amazon region and as an instrument through which Brazil seeks to extend its political and economic influence over neighboring countries in the Amazon Basin. It seems that the most immedi- ate, practical objective of the treaty was to secure the cooperation of other countries for the development of the hydropower resources of the region,'54 a direct threat to indigenous lands.'ss The overall thrust of the Amazon Pact is clearly pro-development. While the document does contain a number of references to indigenous peoples and conservation, it is obvious that these are merely incidental concerns. The preamble states the commitment of the parties "to achieve total incor- 149. I.L.O. Convention No. 107, supra note 18, art. 11. See Swepston and Plant, "Interna- tional Standards and the Protection of the Land Rights of Indigenous and Tribal Popula- tions," 124 Int'l Lab. Rev. 91 (1985). 150. See supra text accompanying notes 37-38. 151. 1966 VI Colegao at 82. 152. Constitution, supra note 32, art. 4, IV. See also the Indian Statute, which speaks of land "belonging to ... the domain [dominio] of the Union, but in the possession [posse] of Indian communities." Indian Statute, supra note 21, art. 45. 153. Done at Brasilia, 3 July 1978, reprinted in 18 Int'l Legal Materials 1045 (1978) [hereinafter referred to as Amazon Pact]. 154. Id. art. V. See E. Martins, Amaz6nia, A Ultima Fronteira 54, 56 (1981). 155. See P. Aspelin and S. Coelho dos Santos, Indian Areas Threatened by Hydroelectric Proj- ects in Brazil (IWGIA Doc. No. 44, 1981). This content downloaded from 165.193.178.76 on Sat, 02 Apr 2016 15:25:39 UTC All use subject to http://about.jstor.org/terms Indigenous Rights in Brazil 397 poration of their Amazonian territories into their respective national econo- mies" while recognizing that, to this end, "it is necessary to maintain a bal- ance between economic growth and conservation of the environment."s56 Article IV reflects the signatories' suspicion of any international control over their Amazonian development activities: "The Contracting Parties declare that the exclusive use and utilization of natural resources within their respective territories is a right inherent in the sovereignty of each state and that the exercise of this right shall not be subject to any restrictions other than those arising from international law." It is significant that the original draft of this provision, referring to the obligation not to cause "perceptible damage" to other nations-an obligation generally considered to be part of customary international law - was toned down.'57 The conservation provisions were not part of the original Brazilian draft, but were reportedly incorporated as a result of amendments submitted by Venezuela.158 As one commentator observes, these amendments did not necessarily indicate genuine concern: "Venezuela's enthusiasm for ecologi- cal issues and native peoples may reflect relatively greater concern for con- servation and native peoples in that country than in Brazil. On the other hand, it may also have stemmed from a geopolitical desire to slow Brazilian development of the Basin."159 The main provisions of the pact relating to conservation and indigenous peoples are Articles VII, XIII and XIV, which contain only vague, noncom- mittal undertakings to cooperate, exchange information, and promote research. However, the language of these provisions is quite indicative of the overall attitude of Amazonian governments toward environmental con- servation and indigenous rights. Article VII speaks of "the need for the ex- ploitation of the flora and fauna of the Amazon region to be rationally planned so as to maintain the ecological balance within the region and preserve the species." In another clause, the parties agree to encourage measures "in order to increase the rational utilization of the human and natural resources of their respective Amazonian territories."160 Indigenous peoples are referred to successively as "human resources" which are to be "rationally utilized," as attractions for an "increasing flow of tourists"161 and as "ethnological wealth" which is to be "conserved,"162 but nowhere is there any recognition of their inherent rights as peoples. It is clear that the native 156. Amazon Pact, supra note 153, preamble. 157. Ware, "The Amazon Treaty: A Turning Point in Latin American Cooperation?" 15 Tex. Int'l L.J. 117, 126 n.65 (1980). 158. Id. at 125-126, 134. 159. Id. at 125. 160. Amazon Pact, supra note 153, art. XI (emphasis added). 161. Id. art. XIII. 162. Id. art. XIV. This content downloaded from 165.193.178.76 on Sat, 02 Apr 2016 15:25:39 UTC All use subject to http://about.jstor.org/terms 398 PALLEMAERTS communities and the natural wealth of the Amazon forest are viewed by the signatories of the Amazon Pact as objects of economic exploitation. This is evidenced further by the declaration adopted at the first meeting of Ministers of Foreign Affairs held pursuant to Article XX of the Treaty in Oc- tober 1980, which sheds more light on the role reserved for the indigenous peoples in the Amazon development process. This document calls for priority attention to the needs and interests of its amazonian population in order to obtain a complete integration in the national development process taking care of preserving their cultural and social values .... The autoctone indigenous population constitutes an essential element of the Amazon and a source of knowledge and life system which serves as a cultural and economic base, being therefore worthy of particular attention in actual and future planning of the Ama- zonian region of each country.163 C. International Tropical Timber Agreement. The International Tropical Timber Agreement (I.T.T.A.) 164 is one of a series of commodity agreements concluded under the auspices of UNCTAD. The main aim of the agreement is to promote tropical timber exports as a source of income for developing countries. It sets up a commodity organization, the International Tropical Timber Organization (I.T.T.O.), which is to monitor and support research and development projects of interest to the timber trade in the world tropical timber market. Brazil played an important role in the negotiation of the agreement, hosting and chairing a meeting of pro- ducer countries where a first draft was elaborated.'6s While the agreement lays great stress on "the sovereignty of producing members over their natural resources"166 and recognizes "the importance of tropical timber to the economies of the members,"167 it completely ignores the primary interest of native peoples in tropical forest resources and the im- portance of the living forest to indigenous economies. For example, the list of criteria for the selection of projects eligible for I.T.T.O. support does not include their impact on indigenous people.168 As a matter of fact, during the course of the negotiations, Brazil, insisting on the sovereign rights of pro- ducer nations, blocked an Australian amendment to the effect that logging activities should not unduly impair the "non-timber use of tropical 163. Bel~m Declaration, 24 October 1980, paras. II-III, reprinted in 7 Envtl. Pol'y & L. 46 (1981). 164. Opened for signature 2 January 1984, U.N. Doc. TD/TIMBER/11 (1983). 165. "UNCTAD Tropical Timber Seminar," 10 Envtl. Pol'y & L. 88 (1983). 166. International Tropical Timber Agreement, supra note 164, art. 1. 167. Id. preamble. 168. Id. art. 23, para. 6. This content downloaded from 165.193.178.76 on Sat, 02 Apr 2016 15:25:39 UTC All use subject to http://about.jstor.org/terms Indigenous Rights in Brazil 399 forests."'"69 The parties pledge to support and develop "industrial tropical timber reforestation and forest management activities,"'70 which indicates that their concern for reforestation stretches only as far as the interests of commercial plantation forestry. The agreement does pay some lip-service to conservation in its preamble and includes, at the bottom of its list of objec- tives, the following: "to encourage the development of national policies aimed at sustainable utilization and conservation of tropical forests and their genetic resources, and at maintaining the ecological balance in the regions Sconcerned."171 But, as one commentator points out, "the ITTA, despite its preambular stress on the environment and sustainable yield management, does not anywhere specify what the substantive concerns of the ITTO should be in this area."1" IV. CONCLUSION As the above analysis has demonstrated, there is little hope of reconciling in- digenous rights and conservation objectives within a national and interna- tional legal framework which gives priority to capital-intensive and export- oriented "development" at the expense of human rights and ecological equi- librium. Conservation policies in Brazil are only one element of the overall technocratic model of Amazon "integration." They are "paternalistically devolved and implemented"'73 and based on exclusionary principles. They reflect a "protectionist approach [which] emphasises a drawing of legal or geographic boundaries, which do not really exist ecologically, around what is considered, usually on a highly selective basis, exploitable and what is not." 174 From an indigenous rights and environmental perspective, an entirely different approach would be desirable. This approach would ideally pro- ceed from the basic premise of the sovereignty of indigenous nations or minimally from a full legal recognition of their collective right of ownership to their ancestral lands and would secure their right of economic and cultural self-determination by granting them full control over the natural resources on these lands. The principle of "permanent sovereignty over natural resources," which 169. "UNCTAD Tropical Timber Agreement on Course," 11 Envtl. Pol'y & L. 91 (1983). 170. Id. art. l(f) (emphasis added). 171. Id. art. 1(h). 172. Johnson, "Chimera or Opportunity? An Environmental Appraisal of the Recently Con- cluded International Tropical Timber Agreement," 14 Ambio 42, 43 (1985). 173. Clad, supra note 93, at 68. 174. G. C. Ray, quoted in id. at 73 n.2. This content downloaded from 165.193.178.76 on Sat, 02 Apr 2016 15:25:39 UTC All use subject to http://about.jstor.org/terms 400 PALLEMAERTS has been consistently abused by the Brazilian state to justify its destruction of renewable natural resources on the territories of native peoples in the Amazon region,17s should be invoked by those indigenous communities to conserve and use their resources according to their own priorities. 175. At the 1972 United National Conference on the Human Environment, Brazil, faced with international criticism of its Amazon development policy and afraid that emerging stan- dards of international environmental law might restrict its sovereignty over its forest tesources, insisted on "the sovereign right of each country to exploit its own resources in accordance with its own environmental policies" and obtained recognition of this right in the declaration adopted by the conference. Sohn, "The Stockholm Declaration on the Human Environment," 14 Harv. Int'l L.). 423, 490-491 and n.257 (1973). This content downloaded from 165.193.178.76 on Sat, 02 Apr 2016 15:25:39 UTC All use subject to http://about.jstor.org/terms