International Human Rights Law in the Context of Indigenous Peoples: Moving From Legislation to Implementation

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Authors Yamada, Erika Magami

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Link to Item http://hdl.handle.net/10150/631496 University of Arizona

James E. Rogers College of Law Indigenous Peoples Law & Policy Program

Supervisor: Prof. S. James Anaya

S.J.D. Dissertation

International Human Rights Law in the context of Indigenous Peoples: Moving From Legislation To Implementation Lands rights' cases at the Brazilian Federal Supreme Court

November 2008 (revision January 2009)

Erika Magami Yamada Contents

Contents 1 Acknowledgment 2 Summary 4 I - Introduction 5 II - Definitions 8 Ill - Formal Recognition: securing indigenous peoples' territorial rights in Brazil 13 a. Colonial Era 16 b. Independent State: Brazilian Empire 24 c. Old Republic 28 d. Brazilian Federal Republic (Dictatorship and Democracy) 33 e. Brazilian foreign policy and enforcement of human rights 40 IV - Enforcement of Rights: Cases before the Brazilian Federal Supreme Court 46 a. The Federal Supreme Court and indigenous land rights' cases 48 b. The most used legal actions 54 c. Brazilian Federal Supreme Court recent findings 58 d. NandeRu Marangatu: indigenous people outside the demarcated land. 66 e. Raposa Serra do Sol: reaffirmation or denial of rights? 72 f.And now? 82 V - Insights from international human rights law in the context of indigenous peoples 85 a. Protection of indigenous peoples' lands within the practice of UN bodies 91 i. International Labour Organization 91 ii. Human Rights Committee 95 iii. CERD 96 b. Protection of indigenous peoples' lands within the OAS 101 i. Jurisprudence oflnter-American Court of Human Rights 103 ii. Inter-American Commission on Human Rights 107 c. Protection of Indigenous Peoples' lands under Customary International Law 110 i. UN Declaration on the Rights oflndigenous Peoples 111 VI - Human rights for the protection of indigenous peoples' lands in Brazil114 a. International Human Rights Law and the Brazilian Legal Order 121 i. The problem of justiciability of rights 121 ii. The doctrine of constitutional status and self-execution of international human rights law 124 b. Direct application of international human rights treaties as domestic laws 128 i. The contrary jurisprudence of the Brazilian Federal Supreme Court 130 ii. The Position of the Federal Supreme Court After the 1988 Constitution and Constitutional Amendment 45 132 c. International Human Rights Law as a Tool to Interpret the Constitution 135 i. Interpreting the Constitution 136 ii. Indigenous Rights' Cases in Australia, Belize and Brazil 138 d. New Era of International Human Rights Law's Recognition 146 VII - Conclusion 149 Bibliography 161 Acknowledgment This study was inspired by the lessons of indigenous peoples' organizations in the Raposa Serra do Sol (Roraima) case domestically and internationally. At the time of this dissertation's presentation, the case of the indigenous land Raposa Serra do Sol had not been concluded at the Brazilian Federal Supreme Court. But it is not an unfinished story. The case is still being monitored by international human rights bodies, and the final hearing at the Supreme Court is scheduled and expected to bring important developments in the near future.

Since the beginning of this writing, the hopes for fair and non-discriminatory treatment of indigenous peoples and for new and positive response by the legal system has only increased. In 2005 the demarcation of the indigenous land Raposa

Serra do Sol was ratified by President Lula. In 2007, the UN Declaration on the

Rights of Indigenous Peoples was approved by the General Assembly and Brazil voted in favour of that. In 2008, indigenous peoples' land rights issues received relevance and attention from the Brazilian Federal Supreme Court because of the

Raposa Serra do Sol case. Indigenous organizations and human rights lawyers are working closer for the enforcement of constitutional rights as a way to implement international human rights law. Moreover, Brazil seems to be aware of its international human rights obligations and the need to overcome discrimination.

With that increasing hope for a just system for all, I would like to thank

Professor Anaya for his unforgettable lessons and always positive encouragement. I have found endless inspiration in him. The hope that Professor Anaya has expressed in all his advanced ideas and practice in international law is true. His visionary teaching has allowed me to see similar possibilities for the implementation of human rights in Brazil, and his visit to my country as the UN Special Rapporteur on fundamental rights and freedom of indigenous people in 2008 inspired much of this work and other local initiatives. I would also like to thank Professor Anaya for the orientation time and friendly support during my time in Tucson. I felt part of a family.

My thanks also go to Joenia Wapichana, Isabela Figueroa, Christine

Halvorsson, Luis Pinero and Luiz Villares who encouraged me to apply for the IPLP program. Thanks to Conselho Indigena de Roraima, COIAB and all the indigenous leaders from Brazil and abroad that I was blessed to meet and who welcomed me in their homes. The openness and trust of indigenous leaders on international mechanisms made me realize the practical application of the lessons on the ground.

Each visit to an indigenous land helped me understand the special meaning of lands to indigenous peoples and its importance to the world.

The Indigenous Peoples Law and Policy Program of the University of Arizona offered me a scholarship and the Ford Foundation awarded me a fellowship during the past 2 years; without these I could not have undertaken my work. I would like to thank Professor Williams for his energetic and passionate teaching. The insights from using history and my shy attempts to insert post-modem thinking throughout the dissertation are thanks to him. The use of some comparative law is thanks to Professor

Hopkins. Kathy Deitering was my full time supporter. My special thanks to Kevin

Nguyen, Jackie Hartley and Martin Weber who found the time and energy to review the text. Also to Jennifer, Jackie, Luis, Maia, Seanna, Mattias, Mary who share with me the passion for a just life. Thank you to my Brazilian friends in Tucson for helping me to see the joy in each moment. Finally, to my family and friends in Brazil for their complete support on my choices and understanding with my latest absences. Summary

In Brazil, the right of indigenous peoples to lands has been recognized since colonial time. But recognition of rights on paper has not been followed by implementation and enforcement of those rights. Indigenous peoples are still threatened. The object of present study is the position of Brazilian Federal Supreme Court in regard to regarding indigenous peoples' right to lands and the 144 pending cases. Despite existing constitutional and international laws protecting indigenous peoples' lands, the security of those fundamental rights is still pending confirmation in Brazil. Today, the most relevant suits regarding indigenous peoples' lands usually go to the Federal Supreme Court level because of the conflicting interests between the Union and the federation units (states) and federalism issues. Land rights' cases are not treated as an issue of fundamental rights and or as a matter concerning the State's international human rights obligations. Conflicts over indigenous lands have been framed more as disputes involving the social structure, economic and political interests than an issue of human rights. Therefore, the Brazilian Federal Supreme Court shall confirm its position regarding the interpretation of constitutional article 231 in line with human rights standards and Brazil's international obligations by delivering its final decisions on the pending cases.

Generally, there is much resistance to the use of foreign or international instruments as law, even after they become part of the domestic legal order such as the ILO Convention no. 169 in Brazil. That is because allied to the positivist tradition, the Brazilian Federal Constitution is considered to be the highest legal instrument and to comprehensively address fundamental rights. Also, there is a strong belief that the use of international human rights law can threaten State sovereignty and that human rights issues are limited to policy. The Supreme Court has dismissed the use of international human rights law for indigenous land rights cases based on inconsistent arguments, sometimes full of misunderstandings. International human rights standards and instruments are in much more harmony with the Brazilian Federal Constitution than it is stated and can be legitimate tools to overcome colonialism and truly protect indigenous peoples and their culhires through the security of their rights to lands and self-determination. The reservations expressed by the Judiciary regarding the application of human rights standards to indigenous peoples land rights' cases are unfounded, but kept as a scapegoat to serve only the special interests of the elite.

This study addresses the following questions: Why should/could the IHRL be used to enforce indigenous peoples' constitutional right to lands at the Brazilian Federal Supreme Court? The main topics of the responses found and developed in the dissertation are: a) international human rights law (IHRL) has evolved to protect indigenous peoples' lands as fundamental rights and have created obligations for the States towards indigenous peoples; b) indigenous land rights' issues are properly the concern of domestic and international institutions and States should be willing to resolve those cases as a matter of human rights; c) the Brazilian legal order allows the use of international human rights law to be directly applied and used as a tool of interpretation of the Constitution because these systems are in harmony; and d) indigenous land rights should be enforced as human rights. I - Introduction To most indigenous communities, it does not make much sense that a people can be hindered in moving around their territory, or that a people can be displaced from their traditional lands, having to leave behind their buried ancestors and without a significant part of their culture and identity.1 To anyone, it cannot be fair that individuals are forced to live in small provisional areas-just next to their recognized territory-surviving in degrading conditions while waiting for a judicial decision to confirm their land rights. It is incomprehensible that courts can order discriminatory injunctions that allow intruders to remain on demarcated indigenous lands, sometimes even after it was proved that they have committed crimes against indigenous peoples and the environment.2 Yet, this is our present reality in Brazil.

The formal recognition of indigenous peoples' rights to lands has existed since colonial times. Indigenous peoples' rights have now achieved constitutional status in

Brazil. However, these rights are undermined by their lack enforcement on the ground. In Brazil, despite some efforts at the administrative level, the judiciary seems to be a one-note band where independent indigenous voices are rarely heard. The continuing violation of indigenous peoples' rights exacerbates their despondency. For instance, violence against indigenous peoples in the context of lands disputed is increasing and too often goes unpunished. 3 Therefore, the fundamental human rights

See the story of the Guarani-Kaiowa people from Mato Groso do Sul. Julia Magalhaes, Nasso Lugar Sagrado, REVISTA BRASIL INDIGENA, March/April (2006), at 32. Also available at: http://www.funai.gov .br/u1timas/brasiI%20Indigena/Revista%20Funai Ol .pdf. Conselho Indigenista Missionario [CIMI], volunteers in Mato Grosso do Sul and Goiania, A hist6ria de NandeRu Marangatu contada pelos Anciaos. (2006), Midia Independente, http://www.midiaindependen te .org/pt/b lue/2006/01/342616 .shtml 2 Press release and Memoranda Raposa Serra do Sol, Campanha Urgente Ana pata Annayan - Solidariedade com os Povos Indigenas da Raposa Serra do Sol, Roraima, Brasil, http://www.cir.org.br/noticias.php?id=506 (30 April 2008), 3 Killings of indigenous leaders Guarani-Kaiowa in Mato Grosso do Sul, Xukuru in Pemambuco, Guajajara in Maranhao, Cinta Larga in Rond6nia and others related with the conflict for lands have been reported to lack investigation and punishment. See AMNESTY INT'L, Foreigners in our own country: Indigenous Peoples of Brazil, AI Index AMR 19/002/2005, 30 March 2005. Also available at: http://archive.amnesty.org/libraty/lndex/ENGAMRl 90022005?open&of=ENG-BRA .. See also CONSELHO INDIGENISTA MISSIONARIO [CIMI], A Violencia Contra os Povos Jndigenas no Brasil: Relat6rio 2003-2005, CIMI, http://www.cimi.org.br/pub/publicacoes/l 149024839 l.pdf. (2006). of indigenous peoples to their lands, to non-discrimination and to self-determination, protected by International Human Rights Law, must be enforced on the ground.

Difficulties in providing effective remedies to indigenous peoples' right to lands tend to be intrinsically related to the combination of influential state or third­ party economic interests and the persistent discrimination against indigenous peoples, within law and legal decisions. In Brazil, the emphasis of the western legal tradition on protecting individual property rights has prevented indigenous peoples from enjoying their territorial rights on the ground, despite protections under the 1988

Brazilian Federal Constitution Article 231. 4 Indigenous land issues have been identified as an issue of economic development rather than an issue of human rights.

Historically, law has been an instrument of power to justify the take over of indigenous lands and to impose a foreign, mainstream way of life and culture in colonized countries. The attention paid by the Federal Supreme Court to indigenous peoples' land rights cases, in 2008, has filled indigenous peoples and human rights organizations with hope for the enforcement of constitutional and international human rights' law in Brazil.5 For the first time, the issue of indigenous lands demarcation was dealt with some cultural sensitivity before the judiciary, in the search for a just balance between divergent economic interests and ways of life.

This study argues that along with legislation and policy, the modernization of the Brazilian judiciary is key to overcoming the tradition of colonialism in Brazil and to implementing Constitutional rights. The incorporation of international human rights treaties within the domestic legal system has been part of that modernization process regulated by the Constitutional Amendment n.45 (Emenda Constitucional n.

45) of December 2004. This points towards a new and better direction for the judiciary6 and can is enhanced by international human rights standards and laws.

4 See infra Chapter III, d. See infra Chapter IV, c. 6 See infra Chapter VI, b, iii. This dissertation argues that international human rights law should be used not only because of State obligations under international law, but also because the use of such tool is domestically possible and highly contributive to the national legal order.

International human rights bodies, such as the ILO, Human Rights Committee,

CERD, Inter-American Court and Commission on Human Rights, have incorporated a progressive legal approach to protect indigenous peoples' lands and cultures that cannot be ignored. International human rights bodies have influenced domestic courts-such as the Belize Supreme Court-and consolidated international customary law in respect to indigenous peoples' rights.7

The present dissertation is divided into seven chapters. The main argument is for the enforcement of indigenous peoples constitutional and international right to lands in the Brazilian Federal Supreme Court as a human rights issue. The first two chapters are introductory, and establish conceptual definitions and the scope of the dissertation. Chapter III is a brief review of the history and the formal recognition of indigenous peoples' territorial rights in Brazil. Chapter IV analyses the Brazilian

Federal Supreme Court's role in assuring enforcement of indigenous peoples' rights.

NandeRu Marangatu and Raposa Serra do Sol-two of the cases currently pending at the Brazilian Federal Supreme Court-illustrate the lack of enforcement of indigenous peoples land rights, and the consequential human rights violations to date.

Insights from the practice of international human rights bodies are presented in

Chapter V. Examples of Supreme Court cases from other countries are used to crystallize the argument for the importance and influence of international human rights law at the domestic level, and to overcome colonialism and discrimination against indigenous peoples in legal theory and practice. Chapter VI addresses the status and applicability of international human rights law in Brazil and its use for indigenous land rights cases.

7 See infra Chapters V, c and VI, c, iii. II - Definitions For the purpose of the present research, the term indigenous peoples refers to those groups of people who have a historical continuity with pre-invasion and pre­ colonial societies that developed on the territories occupied by them, or those who, irrespective of their current place of being, have maintained their own social, economic, cultural, and political institutions since colonial times and consider themselves distinct from other sectors of the societies now prevailing in those territories. 8 According to the Chairperson of the UN Working Group on Indigenous

Populations, indigenous peoples tend to be those with close ties to their land or to a specific territory, that seek to maintain their own identity and cultural distinctiveness, and that have a past or current experience of subjugation or discrimination.9

While there is no universally agreed-upon definition of the term "indigenous" or "indigenous peoples", 10 international human rights bodies have relied on the definition proposed by Mr. Martinez Cobo. This definition, as summarized above, considers: aspects of the relationship between the peoples and their territories and lands; aspects of group identity; and aspects of communal rights of indigenous peoples. 11 In fact, a broad part of the self-identified indigenous movement considers

The definition proposed in the 1982 report by Jose Martinez Cobo, was acknowledged in 1989 by the UN International Labour Organization Convention Concerning Indigenous and Tribal Peoples in Independent Countries No. 169 and reaffirmed in the 2007 UN Declaration on the Rights of Indigenous Peoples. See Economic and Social Council [ECOSOC], Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, UN Doc. E/CN .4/Sub.2/1982/2, Add.6, http://www.un.org/esa/socdev/unpfii/documents/MCS_ v_ en.pdf, (20 June 1982) (prepared by Mr. Jose R. Martinez Cobo); United Nations International Labour Organization [ILO] Convention Concerning Indigenous and Tribal Peoples in Independent Countries No. 169, (27June 1989); and United Nations Declaration on the Rights of Indigenous Peoples, Doc. A/RES/61/295, (13 September 2007). 9 See Economic and Social Council [ECOSOC], Commission on Human Rights, Sub­ Commission on Prevention of Discrimination and Protection of Minorities, E/CN.4/Sub.2/AC.4/1996/2, (10 June 1996) (prepared by Ms. Erica-Irene A. Daes). ' 0 The terms "peoples" and "indigenous peoples" have been of State concern because of their argued implications on the "territorial integrity" of States. Therefore, definitions have been limited to its application in international law. United Nations Declaration on the Rights of Indigenous Peoples, art.46, Doc. A/RES/61/295, (13 September 2007). 11 International law, as in force for Brazil, includes: the United Nations Declaration on the that the term "indigenous peoples" better incorporates the consideration of their rights under international human rights law than do the terms "aboriginal", "tribal", or

"native people" that bring a significant tone of racism in it. Significantly, despite the lack of an objective and formally established definition, indigenous peoples are identified as right holders. Therefore they are subjects, rather than mere objects of law.

Given the special relationship indigenous peoples have with their lands and territories, the term indigenous peoples' right to lands refers to the broad concept of indigenous lands and the interrelated and fundamental rights that flow from their rights to land. Indigenous peoples' right to lands includes ownership over traditional lands, and the right to use, control, and develop the land and its natural resources in accordance with their own indigenous land tenure systems as well as their own needs and interests. It is not a simple property right arising from civil law but it is an inherent and fundamental right that recognizes the people that are the people that are original inhabitants of the lands. Indigenous peoples' rights to lands encompass individual and collective economic, social, cultural, civil and political rights because lands have a special meaning to indigenous peoples.

Article 13 of the ILO Convention 169 recognizes the need for the special importance of lands for the cultures and spiritual values of indigenous peoples to be

Rights oflndigenous Peoples (2007), the United Nations Universal Declaration of Human Rights ( 1948), the International Covenant on Civil and Political Rights ( 1966), the American Convention on Human Rights (1969), the International Covenant on Economic, Social, and Cultural Rights (1976), the International Convention on the Elimination of all Forms of Racial Discrimination (1966), the Convention on the Rights of the Child (1990), the International Labour Organization (ILO) Convention 107 concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries ( 1957), ILO Convention No. 169 concerning Indigenous and Tribal Populations in Independent Countries (1989), Agenda 21 adopted by the United Nations Conference on Environment and Development (UNCED) (1992), and the International Convention on Biological Diversity (1992), as well as, the corresponding international jurisprudence of the Inter­ American Court of Human Rights and the Inter-American Commission of Human Rights. respected. 12 Control by indigenous peoples over developments affecting them and their lands, territories and resources will enable them to maintain and strengthen their institutions, cultures and traditions, and to promote their development in accordance with their aspirations and needs. 13

In Brazil, indigenous lands are recognized and protected in the 1988 Federal

Constitution as a collective right fundamental to the existence and continuity of indigenous peoples. 14 The 1988 Constitution incorporated socio-cultural aspects in the definition of indigenous lands with the aim of protecting indigenous peoples' continuity and cultural survival. The Constitution prohibited removals of indigenous peoples 15 and introduced the requirement to consult indigenous communities in matters related to them and their lands.

The constitutional text of Article 231 defined indigenous land as those

"permanently inhabited by indigenous peoples used for their productive activities, indispensable to the preservation of the environmental resources necessary to their well-being, and those necessary to their physical and cultural reproduction, m accordance with their use, customs and traditions." 16 Note that the definition of permanent habitat or productive activity or any other component of the concept is to be established according to the indigenous peoples' own culture.

Similar to the concept reaffirmed in established international jurisprudence, 17

12 ILO Convention No. 169 concerning Indigenous and Tribal Populations in Independent Countries (1989), was ratified by Brazil in 2002 and in 2004 entered into force domestically through Decreto 5.051 (2004). 13 ILO Convention No. 169 concerning Indigenous and Tribal Populations in Independent Countries (1989), Preamble. 14 Constitui<;ao da Republica Federativa do Brasil de 1988 [CF88] [Constitution] art.231. 15 Constituii;:ao da Republica Federativa do Brasil de 1988 [CF88] [Constitution] art.231 §5. 16 Constituii;:ao da Republica Federativa do Brasil de 1988 [CF88] [Constitution] art.231 §1. 17 See Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Case No.11.577, Judgment of 21 August 2001, Inter-Am. Ct. H.R. (ser. C) No. 79 and, Sawhoyamaxa Indigenous Community v. Paraguay, Case No.322, Judgment of29 March 2006, Inter-Am. Ct. H.R. (ser. C) No.146. the constitutional definition of indigenous lands' right refers to areas considered necessary for the preservation of indigenous peoples, environment, cultures and traditions. The Brazilian Constitution affirms that indigenous peoples have the right to their social organization, customs, languages, beliefs and traditions, and that right is recognized due to indigenous peoples' "originary" rights over the lands that they have traditionally occupied. Originary rights means rights that pre-dated the Constitution.

The Brazilian Constitution recognizes that indigenous peoples shall have the exclusive usufruct of the riches of the soil, the rivers and the lakes existing therein; 18 and that those lands are inalienable and indigenous peoples' rights over those areas are

"indisposable" and cannot be traded or given up. 19 Article 231 of the 1988 Federal

Constitution extinguished and declared void occupation and possession of indigenous lands as well as the activities of natural resources exploitation by non-indigenous individuals. The Constitution further envisioned the right to compensation of third parties in cases of improvements derived from good faith occupation.

According to the Constitution, acts with a view to occupation, domain and possession of indigenous lands, or to the exploitation of the natural riches of the soil, rivers and lakes existing therein, are null and void. Those acts produce no legal effects, except in case of a relevant public interest of the Union. Such nullity and voidness shall not create a right to indemnity or to sue the Union, except in the case of improvements derived from occupation in good faith, in the manner prescribed by law. 20 Therefore, Article 231 of the Constitution established the duty of the federal government to demarcate these lands, protect them and ensure that all indigenous

18 Constitui9ifo da Republica Federativa do Brasil de 1988 [CF88] [Constitution] art.231 §2. 19 Constitui9ao da Republica Federativa do Brasil de 1988 [CF88] [Constitution] art.231 §4. 20 Constitui9ao da Republica Federativa do Brasil de 1988 [CF88], art. 231, para. 6. properties and assets are respected.

Indigenous lands are part of the Union's patrimony, such that indigenous peoples do not enjoy full ownership over their traditional lands in Brazil.21 However, they are entitled to special protection to their lands in order to guarantee the enjoyment of their human rights, including the right to exist, continue and develop according to their own values and traditions.

Moreover, the Brazilian Constitution, and particularly its article 231, should be interpreted in line with international human rights standards, binding instruments such as the ILO Convention No. 169, and the recently-approved UN Declaration on the Rights of Indigenous Peoples. All three documents arise from a context of recognition of the historic injustices suffered by indigenous peoples as a result of, inter alia, their colonization and dispossession of their lands, territories and resources.

21 Constituic;ao da Republica Federativa do Brasil de 1988 [CF88] [Constitution] art.20, XI. Ill - Formal Recognition: securing indigenous peoples' territorial rights in Brazil

In Brazil, as in other parts of Latin America, the colonization process did not expressly and at once exclude all indigenous peoples' rights to lands, at least not on paper. At some points in history, colonial and State legislation even recognized some indigenous land rights based on the fact that indigenous peoples were peoples or nations, but the purpose of this was mainly to justify colonization and to determine the legal basis for the taking over of indigenous lands by the colonizers. So, despite formal legal recognition of indigenous peoples right to lands, the story has always been different on the ground.

Throughout Brazilian history, indigenous peoples have been disrespected as peoples, threatened by cultural and physical extinction, subjected to assimilation, and have suffered substantial loss of their territories.22 The paradoxical pattern of formal recognition and lack of implementation of indigenous peoples' land rights is a recurrent theme (See Table 1). The disparities found between law and practice are reflected in the contradictions and weaknesses of the State's policy to protect indigenous lands and in the troubled relationship between the Brazilian State and indigenous peoples, which was more intense in previous decades.

The development of international human rights laws for the protection of indigenous peoples introduced innovative mechanisms for ensuring rights, respect, and enforcement outside the colonial legal model and influenced national constitutions. 23 In fact, progressive principles were further developed in the Brazilian

22 lNSTITUTO SOCIOAMBIENTAL, ENCICLOPEDIA DOS Povos lNDiGENAS DO BRASIL 2001-2005 (Beto Ricardo & Farry Ricardo eds., 2006) (2006).

23 See infra Chapters III, d, e, and V. Constitution and national legislation regarding indigenous peoples' rights.

Nonetheless, in Brazil, the use-and acceptance-of international human rights law

for indigenous peoples' protection is still very limited. According to Professor

Stavenhagen, "a persistent, and even widening, implementation gap remains between the

good intentions frequently expressed in constitutional reforms and various forms of

legislation and the effective enjoyment of human rights at the practical, everyday

level." 24

In Brazil, the gap between formal recognition of rights and effective protection

remained even after the incorporation of indigenous peoples' rights into the

Constitution. First, there was lack of implementation of those constitutionally

recognized rights on the part of the Executive (demarcations). Then, there came the

lack of legal enforcement (reaffirmation of rights by judicial courts).

The causes of the implementation gap include: the lack of a multidimensional

approach and the political will to implement domestic and international legislation;

historical discrimination against indigenous peoples and their cultures; the lack of

active participation of indigenous peoples in the political structure of the State; and

the prevalence of the economic interest of a minority and dominant elite over

indigenous peoples' fundamental rights.

Table 1. The historical pattern of formal recognition and lack of implementation of indigenous peoples' land rights in Brazil

COLONY EMPIRE OLD REPUBLIC FEDERAL REPUBLIC (1500-1822) (1822-1889) (1889-1930) (1930 to date) Historic facts Promoted the Portuguese Established the Established Federalism Established the respect for occupancy of the new Independent nation as a and state institutions indigenous peoples world's territory in a unitary State under the culture, customs, productive manner, control of the Regent languages and forms or respected the territorial Emperor. orQanization, determinina

24 6th Annual Report ofthe Special Rapporteur on the situation ofhuman rights and fundamental freedoms of indigenous people, Rodolfo Stavenhagen to the UN Human Rights Council, UN Doc. A/HRC/4/32 para.5 (27 February 2007). rights of indigenous the protection of tradition, peoples. lands.

Significant Royal Act (01 April 1680) Resolution of Regent The silence of Constitution Constitution ( 1934) statutes Prince (17 July 1822) of 1891 regarding Papal Bull of Benedito indigenous lands. Indian Statute (1973) XIV The silence of Constitution of 1824 regarding Constitution ( 1988) Royal Letter (10 indigenous lands September 1611) Decree creating the SPI Decreto No.1776 (1996) Regulation of Missions and regulating indigenous (1845) lands protection. Law of Lands No.601 (1850)

Formal Recognition of indigenous As substitution for Indigenous lands were not Recognition of indigenou~ protection of peoples' natural rights and indigenous peoples' included under terras peoples' originary right to Indigenous their originary right to natural rights, the Law of devolutas and therefore lands in the Constitution. Peoples' rights lands as first inhabitants. the Independent State could not be appropriated Indigenous lands could would not explicitly by the states. not be given in sesmarias. recognize indigenous Jurisprudence on The right to lands was not peoples' rights as different indigenous lands as not Colonial law recognized conferred constitutional people, neither regulated being terras devolutas status but the Decree indigenous peoples as territorial rights issues. different and independent creating the SPI peoples, even though it Indigenous peoples established the Union's was used to declare wars collective rights over their obligation to guarantee Protection of indigenous and subjugate indigenous lands were not conferred indigenous possession peoples culture, forms of people. property rights protection and protect those lands organizations, institutions although recognized in from invasion. and lands. Demarcation o previous legislation as indigenous lands for the originary right. permanent possession and exclusive use by indigenous people as a collective riqht. Situation on the Indigenous lands were Policy for assimilation of Unsuccessful attempt to 50-60's SPI is found in ground legally taken in fair wars indigenous peoples and recognize indigenous administrative decadence and illegally taken as disregard for their nations within the Federal due to illegal use of sesmarias. cultures, rights and structure. indigenous lands. The organization federal body is discreditec Laws imposing restrictions Continuing assimilation of because of selling on indigenous peoples indigenous peoples and "certification of inexistenc, were largely enforced loss of territories to states of Indians" to legitimate whereas laws protecting and third parties. the appropriation of indigenous' rights were indigenous lands by third easily forgotten or parties. misused.

70-80's Demarcation of small plots of lands (aldeias) that in time were believed to be assimilated

90-00's Demarcation of 13% of the national territory as indigenous lands for their permanent possession and exclusive use in accordance with their customs and traditions. a. Colonial Era The expansion of Europe over the Americas in the Fifteenth and Sixteenth centuries-which the Portuguese colonizers referred to as "discovery" and the

Spanish and Anglo-Saxon colonizers as "conquest"25-not only completely altered the pace of development and destiny of the American continent, but also the means of production and forms of organization in Europe and elsewhere,26 along with the laws and international and social relations of the world. From the beginning, the relationship established between the colonizer and the indigenous peoples was intrinsically related to both: the colonial economic interests in favour of exploitation of natural resources; and the belief of the colonizer that its way of life of was superior.27 The degree of intercultural sensitivity of the so-called encounter between indigenous peoples and colonizers determined the amount of loss of control of lands suffered by indigenous peoples and the spirit of legislation.

The European justification for the conquest of non-Christian peoples in the

'New World' was systematically elaborated to become a legal discourse for the colonization of the Americas and the takeover of lands.28 Western religion and morality determined the law that would guide the Spanish and Portuguese colonizers upon their arrival to the new continent, influencing their understanding of lands as

25 See SERGIO BUARQUE ROLANDA, R.AiZES DO BRASIL, (Companhia das Letras, 1995) (1936) for detailed analysis of the Portuguese influences in the formation of the Brazilian society as opposed to the Spanish and Anglo-Saxon colonization processes. 26 The colonizers spread information about the land and the people they encountered and, inevitably, those stories and experiences would change the world and also paved the way to exclude culturally different peoples for the following centuries. See Thomas Moros, Utopia, ( 1516). 27 MANUELA CARNEIRO DA CUNHA, Jntrodur;ao a uma hist6ria indigena, in H!STORIA DOS INDIOS NO BRASIL, 9-26 (Manuela Carneiro da Cunha ed., 2006) (1992). 28 Discourses of conquest in the Medieval Crusades influenced the legal theorists regarding the rights and status of normatively divergent non-Christian peoples under international law. See ROBERT WILLIAMS JR., THE AMERICAN INDIAN IN WESTERN LEGAL THOUGHT: THE DISCOURSE OF CONQUEST, 14 (1992) (1990). economic assets and a source of power for a very long time.29 Lands and peoples

were divided to facilitate colonization under the interests and law of the Colonizer.30

The European paradoxical behavior towards indigenous peoples, and its belief

in only one right way of living (its own) for all humankind was soon introduced as the

basis of the law of nations in the western legal thought to justify the extension of

western power over indigenous peoples in the Americas. 31

Colonization in Brazil

On the 22nd of April 1500, Pedro Alvares Cabral landed in Brazil and declared

the Portuguese Crown's possession of the lands there encountered. The colonizer's

description of Brazil as an idyllic place, where the incredibly strong, beautiful, and

obedient people would live in harmony with nature, and the people's solidarity upon

the colonizers' arrival consecrated the romantic view of the land and its native

peoples. 32 Unlike in North America, in Brazil marriages between Portuguese and

indigenous people were soon allowed by law. 33 However, intermarriage was also

found to be a means by which the Portuguese sought to get along with the people and

to know enough about the land to claim it as private land.34

29 The colonization process in the Americas imposed the European land tenure system on the traditional tenure systems held by indigenous peoples. 30 In 1494 the Treaty of Tordesilhas was signed between Portugal and Castille dividing South America in two parts. The imaginary meridian established the east territory to the Portuguese Kingdom and the west to Spain. 31 The Law of Nations was an instrument of power in the European conquest of the Americas. At the same time it recognized indigenous peoples as subject of the ius gentium, it also legitimated the take over lands and maintained colonialism. See ROBERT WILLIAMS JR., THE AMERICAN INDIAN IN WESTERN LEGAL THOUGHT: THE DISCOURSE OF CONQUEST, IO l-106 (1992) (1990). 32 Letter from Pero Vaz de Caminha to the Portuguese King D. Manuel describing the first encounter with the native people from Brazil on the 23rd April 1500. CARLOS FREDERICO MARES SOUZA FILHO ( org.), 0 RENASCER DOS Povos lNDiGENAS PARA o DIREITO, 28, (2006) (1998). 33 Alvara Regio [Royal Act] of 4th April 1775 was an attempt to protect the Portuguese people from its own prejudice against indigenous peoples. It forbade different treatment to the Portuguese people married to indigenous people. CARLOS FREDERICO MARES SOUZA FILHO (org.), 0 RENASCER DOS Povos INDIGENAS PARA o DIREITO, 55, (2006) ( 1998). 34 The brotherhood through marriage laces is referred to as cunhadismo by Darcy Ribeiro. DARCY RIBEIRO, Os INDIOS E A CIVILIZA<;:Ao - VNTEGRA<;:Ao DAS POPULACES INDiGENAS NO BRASIL MODERNO, (2004) (1970). The romantic views of the Indians did not prevent indigenous peoples from losing their lands to colonizers through massacres, death and disease, as well as division into warring factions. 35 Slavery of indigenous peoples was central to the colonial policy and indigenous legislation was limited to its political and economic impacts-rather than a true sense of justice-characterized by its contradictions, instability and hypocrisy.36

The clash of cultures and lack of respect for the cultural differences is easily identifiable in this process of colonization. The apparent lack of housing structures and political organization (from the ignorance of a European perspective) in a place where nature was so abundant and rich37 was soon used by the Portuguese people to justify disregard for indigenous people's culture, belief, and way of living.

Indigenous peoples were denied territorial rights as sovereign nations because they were disregarded to be civilized. The discriminatory notion of indigenous peoples as non-civilized people and the biased idea of empty lands, at the convenience of the colonizer were established at this point.

Yet the Portuguese people perceived the beauty, tidiness and kindness of the native people as an acknowledgement of their human essence, which the European mind believed could be "salvaged" through religious assimilation by the church.38

Thus, it was believed that indigenous people would gradually become citizens as they became civilized: embracing Christianity. The paradox of the relationship among

Europeans and indigenous peoples coincides with the paradox in the law and practice

35 Beatriz PERRONE-MOISES, indios Livres e indios Escravos, Os principios da legislar;iio indigenista do periodo colonial (seculos VVI a XVIII) in HISTORIA DOS INDIOS NO BRASIL, 115-132 (Manuela Carneiro da Cunha ed., 2006) (1992). 36 Ibid. 37 CARLOS FREDERICO MARES SOUZA F!LHO (ORG.), TEXTOS CLASSICOS SOBRE O DIREITO E OS Povos INDiGENAS (1992). 38 Letter from Pero Vaz de Caminha to the Portuguese King D. Manuel describing the first encounter with the native people from Brazil on the 23rd April 1500. CARLOS FREDERICO MARES SOUZA FILHO (org.), 0 RENASCER DOS Povos INDiGENAS PARA o DIREITO, 28, (2006) (1998). of the colonization period and beyond.

Despite the relatively large number of references to indigenous issues in legal instruments of the colonial period in Brazil, indigenous peoples' rights were rarely central to the legal order. Legislation was mostly conceived as a means to impose limitations upon indigenous peoples, or to guarantee third-party rights. In fact, the main concern of the colonizers towards indigenous peoples was how to fully integrate them into the new society and make sure that the Portuguese dominance was assured.

In sum, colonialism introduced: the strictly formal acknowledgement of indigenous peoples and a doubtful recognition of rights; a harmful lack of legal protection of indigenous peoples' lives and cultures; a fundamentally racist claim for the superiority of western culture; indigenous slavery; and a confusing legal situation of an unfair agrarian structure, which persists in the Brazilian State to the present. 39

The Right to Lands in the Colonial Period

Regarding territorial rights, the recognition of indigenous peoples' freedom to occupy their lands, having respect for their cultural differences, was first proposed by

Las Casas40 and Francisco Vitoria,41 but soon denied by Sepulveda.42 To Las Casas, the conquest of indigenous territories was in violation of those peoples' natural rights.43 Las Casas' legal-theological position accepted that all people were created

39 CARLOS FREDERICO MARES SOUZA FILHO ( org.), 0 RENASCER DOS Povos INDiGENAS PARA o D!REITO, 56, (2006) ( 1998). 4° Frei Bartolome de las Casas, Obra indigenista, Alianza Editorial, Madrid, 1985 cited in CARLOS FREDERICO MARES SOUZA FILHO (ORG.), TEXTOS CLASSICOS SOBRE O DIREITO E OS Povos JNDIGENAS, 36, ( 1992). 41 Victoria dismissed the doctrine of discovery asserting that the Indians were free and as such, they were true owners of the territory they possessed. As rational beings, Indians were entitled equal rights under the natural law (ius gentium). ROBERT WILLIAMS JR., THE AMERICAN INDIAN IN WESTERN LEGAL THOUGHT: THE DISCOURSE OF CONQUEST, 98-99 ( 1992) ( 1990). 42 CARLOS FREDERICO MARES SOUZA FILHO (org.), 0 RENASCER DOS Povos INDiGENAS PARA 0 DIREITO, 49, (2006) (1998). 43 Sergio Luiz Fernandes Pires, 0 aspecto juridico da conquista da America pelos espanh6is ea inconformidade de Bartolome de las Casas in DIREITO E JUSTI<;:A NA AMERICA INDiGENA - DA CONQUISTA A COLONIZA<;:AO, 55-73, (Antonio Carlos Wolkmer ed., 1998). by God and that the Christian people had the mission to bring the revelation to the encountered people, without interfering in the life, social organization, or territorial rights of these "infidels. "44

In contrast, to Sepulveda, Las Casas' theory would create obstacles to the domination, colonization, and evangelization of the New World. Sepulveda advocated that the conquests of territories were just a consequence of the need to evangelize the people.45 According to Sepulveda, the religious obligation of

Christians towards indigenous peoples legitimated the right to conquest and to enter into so-called "just wars." When proposing respect for indigenous peoples their culture and territories, Las Casas was planting the seed for the idea of universal human rights, which would be applied to defend indigenous peoples' rights and to promote the respect for cultural differences among peoples centuries later.46

Officially, the Portuguese and Spanish colonial legislation recognized, or at least did not fully deny Las Casas' theory by acknowledging some rights to indigenous peoples. However, despite that minimum level of recognition, effective protection or implementation of indigenous rights were an issue and, thus, at the same time, wars against indigenous peoples were excused as just wars necessary to take over indigenous territory and to impose a religion and a culture.47

44 Frei Bartolome de las Casas, Obra indigenista, Alianza Editorial, Madrid, 1985 cited in CARLOS FREDERICO MARES SOUZA FILHO (org.), 0 RENASCER DOS Povos INDiGENAS PARA o DIREITO, 28, (2006) (1998). 45 CARLOS FREDERICO MARES SOUZA FILHO (org.), 0 RENASCER DOS Povos INDiGENAS PARA 0 DIREITO, 48, (2006) ( 1998). 46 The idea of Las Casas developed in the XX and XXI Centuries, to recognize fundamental rights of people based on the dignity and well-being of humanity, regardless of the explanation of a divine inspiration behind humanity, as the so called human rights. See infra Chapter V. 47 Mares defined the legislation of the XVI century as pendular: it conferred good treatment to the indigenous people that would accept the Christian religious education; and determined war against the enemies or infidels. For instance, in 1570 as in 1548 it was forbidden to enslave indigenous people, unless they were arrested in war. CARLOS FREDERICO MARES SOUZA FILHO (org.), 0 RENASCER DOS Povos INDiGENAS PARA o D!REITO, 53, (2006) (1998). The Portuguese Colonization and Indigenous Peoples' Right to Lands

In Brazil, indigenous peoples' right to lands was first indirectly recognized in

1680 by a Portuguese Royal Act regulating general lands occupation in the colony.

The Royal Act distinguished indigenous lands from lands that could be given away

(sesmarias). That distinction was due to the fact that the Portuguese Crown recognized on paper that indigenous peoples were the original inhabitants of those lands.

Upon arrival to the continent, the Portuguese colonizers were concerned with occupying the land and establishing a jurisdiction over it. When Martim Afonso de

Souza arrived in Brazil in 1530, he brought three royal letters: one proclaiming him as capitao-mor; one empowering him to take over lands on behalf of the Portuguese

Crown; and the last one allowing him to distribute lands to those who wanted to produce. That land tenure system for productive activities was called the sesmaria regime.48 The sesmaria regime was thus established with full implications over indigenous lands, to be later regulated by the Royal Act of the 1st of April 1680.

According to the 1680 Royal Act, the Portuguese Crown would give to the new residents the so-called sesmarias-which were lands large enough (and not any bigger) to be productive. For the sesmaria to be legitimated by the Crown, the lands had to be officially measured, actually occupied, farmed, and demarcated. Only then would the beneficiaries be considered the landlords to the semarias. The 1680 Royal

Act also declared that the sesmarias would "respect the rights of third parties", including indigenous peoples who were recognized to be "the first and natural owners

48 CARLOS FREDERICO MARES SOUZA FILHO (org.), 0 RENASCER DOS Povos INDIGENAS PARA o DIREITO, 44-45, (2006) (1998). of those lands". 49 Thus since 1680, under the Law of Sesmarias, indigenous peoples'

"originary right"50 over their lands has been formally recognized in Brazil.

However, on the ground the situation was different: indigenous peoples' lands were not preserved and their rights were not respected. The laws that were observed and implemented on the ground were those imposing restrictions upon indigenous peoples, their way of life and those regulating the use of Indians as labor. In terms of lands distribution, extensive parcels of lands including indigenous lands were given to the new residents as sesmarias. 51

The Crown's control over the use oflands for productive farming was absent.

Individuals responsible for distributing lands would benefit themselves, their family, and friends through the abusive use of the system. Allowing special benefits, despite the Royal Act, was one of the few ways the Crown maintained its supremacy and the colonial regime.52 Soon the sesmarias regime became a system of land speculation and a source of local power based on an unjust agrarian structure of large unproductive properties (latifundios ), regardless of indigenous peoples' rights. 53 The aristocratic elite was formed and empowered. The sesmaria regime established the

49 MANUELA CARNEIRO DA CUNHA, OS DIREITOS DO INDIO: ENSAIOS E DOCUMENTOS, 59, (1987). 50 Originary right or indigenato are the terms used to refer to the recognition of indigenous peoples as the first owners of the lands because they were original inhabitants of the place. Indigenato is the source of indigenous peoples' right to lands because such right predated the Brazilian constitution and were therefore not be constituted by it. It is the recognition of the original inhabitants' sovereignty over their lands and also the source of indigenous' rights over the territory that they presently occupy, or that they used to occupy before forced removals. 51 As opposed to the "size not larger than the beneficiary could enjoy" established by Alvara Regio [Royal Act] Lei das Sesmarias (1680). 52 The economy, policy and law in Brazil were highly determined by an agricultural economy based on exports. Historically, it implied a country dependent on slavery and with a small aristocratic elite in power. For instance, the economic and social decline of the Portuguese Crown in the 1800's forced the Royal family to seek refugee in the colony. Without money, the crown paid for its needs and goods by distributing noble titles and lands. An unprepared "noble class" was formed by necessity. That fact caused the social disparities to be accepted as normal (and even desirable) and the distribution of lands and goods was unjust, especially to indigenous peoples. 53 CARLOS FREDERICO MARES SOUZA FILHO (ORG.), TEXTOS CLASSICOS SOBRE O DIREITO E OS Povos INDIGENAS (1992). belief that property was a source of political power and reaffirmed the formal supremacy of individual lands title over any other form of land tenure.

In 1755, the originary right to lands of indigenous peoples was agam acknowledged on paper by the bull of Pope Benedito XIV, which stated that "to the lands given to private individuals, it would always be reserved the right of indigenous peoples, who are the primary and natural owners of the lands".54 At that time, the

Portuguese Crown recognized indigenous peoples' ownership over the territories not yet taken. The Crown exempted indigenous people from paying tax, a strategy used to guarantee allied occupation and jurisdiction over lands of difficult reach.

Therefore, official documents and laws from colonial times, declared the freedom of indigenous peoples and provided their protection55 as well as their right of occupancy of lands. 56 However, pursuant to the same documents, indigenous territorial rights could be, and indeed were, limited or extinguished by "fair war" as understood by the Crown. 57 In fact, during colonization, the Portuguese Crown also passed orders and laws to encourage European occupation of the colonial territory, including through the domination of native people encountered there.

Even when the Portuguese Crown issued colonial titles in the form of concessions to some indigenous communities, this did not protect indigenous peoples from wars and massacres due to lands disputes. In Brazil, indigenous peoples' right to lands have always been relegated to a secondary category of rights, left vulnerable

54 F. Costa Tourinho Neto, Os direitos originarios dos indios sabre as terras que ocupam e suas conseqiiencias juridicas in JULIANA SANTILLI (COORD.) Os DIREITOS INDIGENAS EA CONSTITUI<;:Ao, (Nucleo de Direitos Indigenas, Sergio Antonio Fabris ed., 1993). 55 Cartas Regias [Royal Letters] 30 July 1609 promulgated by Filipe III in MANUELA CARNEIRO DA CUNHA, OS DlREITOS DO INDIO: ENSAIOS E DOCUMENTOS (1987). 56 See Cartas Regias [Royal Letters] 10 September 1611, Alvara Regio [Royal Act] 1680, Alvara Regio [Royal Act] 1775. MANUELA CARNEIRO DA CUNHA, Os DIREITOS DO INDIO: ENSAIOS E DOCUMENTOS, 59, (1987). 57 Tourinho Neto, F. Costa, Os direitos originarios dos indios sabre as terras que ocupam e suas consequencias juridicas in JULIANA SANTILLI (COORD.) Os DIREITOS INDiGENAS E A CONSTITUI<;:Ao, (Nucleo de Direitos Indigenas, Sergio Antonio Fabris ed., 1993 ). to prevailing economic and political interests in place. Moreover, the few concessions of titles that indigenous peoples did receive did not correspond to the full recognition of indigenous peoples' traditional lands. Above all, such concessions served to accommodate some of the conflicts over lands on the ground, giving no effect to indigenous peoples' rights. Titles conferred to indigenous peoples were invariably rejected by subsequent State governments. The title held by indigenous peoples was often in a limbo status within the legal systems, unlike the protections made available to individual property rights.58

b. Independent State: Brazilian Empire The eighteenth century was described a heterogeneous century in Brazil. 59

Brazil changed its political regime from Colony to Empire and from Empire to the

Old Republic. African slavery and European immigration took place on a significant scale. Also, oligarchic tensions and attempts to centralize the political power of

Brazil were prominent at this time. Naturally, the political scene influenced the legislation on indigenous peoples. With the rise of African slavery in the eighteenth century, the focus of legislation relating to indigenous peoples changed from labour to lands. It was also the first time that the humanity of indigenous peoples was referred to in the country's Iegislation.60

On the J1h of September 1822 Brazil proclaimed its independence from

Portugal.61 In 1824, the Emperor's government was imposed as a constitutional

58 The contradiction between colonial titles and their non-recognition by the Nation State is evident in the struggle of indigenous peoples ( converted into rural people) for the recognition of their collective identity and lands. Fernando Pedreira Sodero Esbo90 hist6rico da forma9ao do direito agrario no Brasil, RJ, AJUP 1990 cited in CARLOS FREDERICO MARES SOUZA FILHO (org.), 0 RENASCER DOS Povos INDiGENAS PARA o DIREITO, 45, (2006) (1998). 59 MANUELA CARNEIRO DA CUNHA, "Politica Indigenista no Seculo XIX", in H!STORIA DOS INDIOS NO BRASIL, 133-15426 (Manuela Carneiro da Cunha ed., 2006) (1992). 60 MANUELA CARNEIRO DA CUNHA, "Politica lndigenista no Seculo XIX", in H!STORIA DOS INDIOS NO BRASIL, 133-15426 (Manuela Carneiro da Cunha ed., 2006) ( 1992). 61 The presence of the Portuguese Royal family exiled in Brazil from the Napoleonic occupation regime. The records on the debates around the formulation of the 1824 Constitution reveal that a number of parliamentary members defended indigenous peoples and even urged the State to refrain from interfering in the lands left to the indigenous peoples. 62 However, that Constitutional Assembly was dissolved, and the 1824

Constitution was elaborated and imposed by Prince Pedro I with no reference to indigenous people (nor to afro-descendants) as an attempt to introduce formal equality of freedom and citizenship in the country. But the Independent State under the

Emperor used the ideology of formal equality to justify the repression of cultural, ethnic, racial, gender and other differences.

Although Brazil was now an independent nation, under Prince Regent Pedro

I-a member of the Portuguese Royal family-power was centralized. Prince Pedro I introduced the so-called monist legal tradition in Brazil, according to which special statutes aimed at particular portions of the society were no longer accepted.

Arguably, that legal tradition was aimed at ending privileges and creating an egalitarian society. However that formal assertion of an egalitarian society was disconnected with the reality: in the independent Brazilian State, blacks remained slaves; indigenous peoples were never considered part of the citizenry; poor people and women did not have equal civil rights. Therefore special rights were denied and privileges were kept to the dominant sector of the society.

For instance, the 1824 Constitution was silent about the sesmaria regime and about indigenous peoples' territorial rights. Nonetheless, such silence was not necessarily interpreted as extinguishing the property rights derived from the sesmaria regime or to completely extinguish the right to lands of indigenous peoples. It was a

of Portugal during the previous years led to Independency under a monarchic regime. 62 CARLOS FREDERICO MARES SOUZA FILHO (org.), 0 RENASCER DOS Povos INDiGENAS PARA 0 DIREITO, 124, (2006) ( 1998). grey area. A couple of months before independence, Regent Prince Pedro I ended the sesmaria regime, prohibiting any new concession of lands and conferring the status of private property upon legitimate sesmarias lands. 63 But there was also no regulation on the existing sesmarias,or., on indigenous peoples' lands .

The legal status of indigenous lands was again in a limbo. During the Empire regime, indigenist legislation was very limited and subsidiary to the regulation of land for the purpose of occupation and exploitation of the lands. Up to 1845 and the ratification of Regulamento das Missi5es, no new document on indigenist legislation was produced in the Empire. 64 Meanwhile, following the 1834 de-centralization of the governing structure, a number of local governing powers (provincias) started to .. take up legislative anti-indigenous initiatives at will. 65

Under Pedro II's Empire, Law 601 of 18 September 1850 established a new regulation for the occupation of lands in Brazil, dealing with terras devolutas 66, sesmaria and indigenous rights issues. Generally, Law 601 (1850) established that terras devolutas were the lands not used by the public authorities, or legitimately possessed by private parties, including those legally held· under the sesmaria regime or validated by this law. According to that law, those empty lands (terras devolutas) could only be transferred to the private patrimony by sale and no other form of acquisition of such lands would be allowed. 67 Under Law 601, concepts such as registro de im6veis (registration of lands) and reservas indigenas (indigenous

63 Resoluc;ao do Principe Regente de 17 de julho de 1822. CARLOS FREDERICO MARES SOUZA FILHO (org.), 0 RENASCER DOS Povos INDiGENAS PARA o DIREITO, 59, (2006) (1998). 64 MANUELA CARNEIRO DA CUNHA, "Polftica Indigenista no Seculo XIX", in HISTORIA DOS INDIOS NO BRASIL, 138 (Manuela Carneiro da Cunha ed., 2006) (1992). 65 MANUELA CARNEIRO DA CUNHA, "Polftica Indigenista no Seculo XIX" in H!STORIA DOS INDIOS NO BRASIL, 139 (Manuela Carneiro da Cunha ed., 2006) (1992). 66 Terras devolutas are lands that are not and have never been legitimately incorporated into public or private patrimony. Lei No. 601 de 18 de setembro de 1850, art. 3 (Brazil), D.O. also find at: http://www.planalto.gov.br/ccivil/LEIS/L0601-1850.htm. 67 Lei No. 601 de 18 de setembro de 1850, art.1 and art.3 (Brazil), D.O. also find at: http://www.planalto.gov.br/ccivil/LEIS/L0601-1850.htm. reservations) were introduced. These concepts continue to remain in use. Despite its assimilationist goals and ideas, Law 601 made some attempts to guarantee differentiated rights over the lands occupied by indigenous peoples.

Dealing with non-regulated situations and attempting to organize and provide incentives for immigration and colonization of lands for agricultural purposes in

Brazil, Law 601 also stated that indigenous lands were "reserved lands" for

"indigenous colonization". 68 Unlike the titling of lands to non-indigenous individuals, private property title would not be conferred to indigenous peoples over their lands. The designation "reserved lands" was a weak attempt to reaffirm indigenous peoples' originary rights over certain areas identified as "available", and recognizing indigenous peoples as the natural and first owners of the lands.69

Formal protections of indigenous peoples' right to lands established in law had little impact on the ground. In fact, legal recognition of indigenous rights was meaningless and particularly worrisome when indigenous peoples' identities, cultures, and lands were threatened by law-making. For example, the term "reserved lands" and the exceptions made to formally safeguard indigenous peoples' rights in law were vague enough to be circumvented, and even to obstruct the establishment of indigenous land tenure. On the ground, cordial integration of the major society and indigenous peoples was easily transformed into cruel discrimination due to heavy interests over lands. Despite the formal recognition of indigenous peoples' originary right over lands, under the activities of the independent State indigenous peoples were left without substantial parts of their lands due to an unenforceable right.

68 Lei No. 601 de 18 de setembro de 1850, art.12 (Brazil), D.O. also find at: http://www.planalto.gov.br/cciviVLEIS/L0601-1850.htm. 69 CARLOS FREDERICO MARES SOUZA FILHO (org.), 0 RENASCER DOS Povos lNDiGENAS PARA 0 DIREITO, 125, (2006) (1998). c. Old Republic On the 15th of November 1898 a republican government (Republica dos

Estados Unidos do Brazil) replaced Monarchy in Brazil. The republican political regime restored the provinces and was controlled by the central power through oligarchy. The 1891 Republican Constitution was silent regarding indigenous peoples' rights and the legal status of their lands. The silence meant the ratification of the old norms. According to the new Constitution in the federative system, the federation unit (states) would have ownership over lands that belonged to the former provmces. Those lands (terras devolutas) included only indigenous lands from extiguished groups (aldeias extintas) because, generally, indigenous lands were never declared to be terras devolutas. 70

The adoption of 1891 Constitution was preceded by a polemic debate.in which some politicians advocated that the Republic of the United States of Brazil was constituted by the free federation of the peoples, including indigenous peoples, living within the limits of the former Empire. Others politicians denied the existence of other peoples and their special status in the territory. The debate was inspired by international relations and the formation of States in other parts of the world.

According to that first position, indigenous peoples were designated as

"empirically confederated to the Brazilian States".71 These theorists argued that the federalization of indigenous nations was acceptable as it would be limited to the maintenance of the friendly relationship among nations and to guarantee Federal protection against any violence perpetrated against indigenous person or territory.

70 MANUELA CARNEIRO DA CUNHA, "Politica lndigenista no Seculo XIX" in HISTORIA DOS INDIOS NO BRASIL, 146 (Manuela Carneiro da Cunha ed., 2006) (1992). 71 Miguel Lemos and R. Teixeira Mendes, "Bazes de uma constitui9ao politica ditatorial federativa para a Republica Brazileira", 1890, cited in MANUELA CARNEIRO DA CUNHA, Os DIREITOS DO INDIO: ENSAIOS E DOCUMENTOS, 72, (1987). Indigenous peoples would have their jurisdiction over their territories acknowledged like any other nation.72

From a legal point of view, the proposed theory would justify a differentiated legal status to indigenous lands: the Brazilian right to property would not apply to indigenous titled lands because indigenous peoples would hold rights over lands like any other nation, although united in the Republic.73 However, the 1891 Constitution did not adopt such structure of federalism with special status conferred to indigenous peoples. Instead, the 1891 Constitution kept silent regarding indigenous peoples and their right to lands. Indigenous issues were now invisible under the Brazilian legal system.

Despite the silence of the 1891 Constitution regarding indigenous peoples' rights, indigenous lands were not left completely unprotected. Due to the aristocracy's interests in an unclear legal regime for indigenous land rights, indigenous peoples did not have their right to property recognized like those acquired by individuals owners of sesmarias. However, indigenous lands were not considered terras devolutas without owners. 74 As such, indigenous lands did not fall into the constitutional category of lands that would be designated to the federation states. Still, due to the lack of specific legislation regarding indigenous land rights, innumerous indigenous lands were treated as terras devolutas and titled as private property, granted to individuals by the federated states.

72 CARLOS FREDERICO MARES SOUZA FILHO (ORG.), TEXTOS CLASSICOS SOBRE O DIREITO E OS Povos INDiGENAS (1992). 73 R. TEIXEIRA MENDES, "Em defesa dos selvagens brazileiros", Rio de Janeiro, Igreja Positivista do Brazil, 1920, cited in MANUELA CARNEIRO DA CUNHA, Os DIRE!TOS DO INDIO: ENSAIOS EDOCUMENTOS, 73, (1987). 74 The 1891 Brazilian Constitution and the recognition of the distinction between reservas indigenas and terras devolutas is still cited as jurisprudence by the Brazilian Federal Supreme Court Justice. See Supremo Tribunal Federal [STF], Recurso Extraordinario n. 416.144-3/MT, Relator: Min. Ellen Gracie, voto Min. Gilmar Mendes, DJ 01.10.04, STFJ. References have therefore been made to indigenous peoples' right to lands in formal legal instruments since colonial time. However, it was only in 1934 that indigenous peoples' territorial rights were conferred constitutional status.75 Since then, all the subsequent Constitutions recognized, in some way, indigenous peoples' right to lands in Brazil. Sometimes this recognition displayed a clear assimilationist intent to acknowledge only recognize provisional rights-because it was believed that, in time, indigenous peoples would be integrated76 into the Brazilian major society. However, the constitutional protection of indigenous lands in Brazil developed to recogntze the relationship between lands and indigenous peoples' fundamental rights77 in addition to the right to enjoy the natural resources and the lands permanently and exclusively by indigenous peoples. 78

When indigenous peoples right to lands were recognized m the Brazilian

Constitution of 1967, the administration was conferred the responsibility of identifying and demarcating indigenous lands. However, there were charges of fraud on the part of the Indian Federal Protection Service (SPI) for selling documents that would allegedly prove that the area was not indigenous land due to the "lack of an indigenous presence in the area". Land titling was often based on fraudulent official documentation of a "declaration of inexistence of indigenous people"-that could formally "free" the land from being indigenous-issued by the Service of Indian

Protection.79 When that practice was banned, indigenous peoples faced the problem of

75 Constitui<;iio da Republica dos Estados Unidos do Brasil de 1934, art.129. 76 DARCY RIBEIRO, Os INDIOS EA CIVILIZA<;:Ao - INTEGRA<;:Ao DAS POPULACES INDiGENAS NO BRASIL MODERNO, 487-503, (2004) (1970). 77 Constitui<;iio Federal Brasileira de 1988, art. 231. 78 Constitui<;iio da Republica Federativa do Brasil de 1967, art.I 86. 79 In 1912, Joiio Mendes Jr. Reaffirmed the originary right of indigenous peoples to their lands. JULIANA SANTILLI (COORD.) Os DIREITOS INDiGENAS E A CONSTITUI<;:Ao, (Nucleo de Direitos Indfgenas, Sergio Antonio Fabris ed., 1993). In 1993, the Brazilian Federal Supreme Court reaffirmed the immemorial rights of indigenous peoples to lands in the Krenak case. Supremo Tribunal Federal [STF], A<;iio Originaria Civil n. 323-7/MG, Relator: Min. Francisco Rezek, DJ 10.06.1994, STFJ. a lack of demarcation of their lands due to non-indigenous occupation of the areas.

Ironically, the Service of Indian Protection (Servi<;o de Prote<;iio ao indio­

SPI) was established as a federal administrative body to assist indigenous peoples, with responsibilities, inter alia, to guarantee the effective possession of indigenous territories and to adopt measures to avoid trespass of indigenous lands by non­ indigenous people and vice versa. 80 The SPI established a procedure for regulating indigenous lands in order to protect indigenous lands and peoples. However, this was poorly verified in administrative practice and was not adopted by judicial bodies nor accepted by the constitutional legal culture.81

Indian Statute, 1973 The federal law 6001/1973 (Indian Statute)82 deals with the legal status of indigenous communities and indigenous rights in Brazil. The statute was conceived and entered into force while the country was dominated by an authoritarian regime of

Military Dictatorship. At that time, the Brazilian Government was suffering intense criticism from the international community regarding complaints of constant human rights violations related to land disputes and specially the situation of the Y anomami people.

The Indian Statute was elaborated as an attempt to show the international community that the Brazilian government was committed to the existent international human rights law and had a national public police to protect indigenous peoples.

Although innovative, the statute's content was still assimilationist and characterized the federal policies in force at the time. In fact, the rights established in the Indian

80 Decreto No. 8072, de 20 de Junho de 1910, art.2 §§2 and 3, (Brazil). Decreto No. 9214 de 15 de dezembro de 1911, (Brazil). 81 CARLOS FREDERICO MARES SOUZA FILHO (org.), 0 RENASCER DOS Povos INDIGENAS PARA 0 DIREITO, 127, (2006) (1998). 82 Lei Federal No. 6001, Estatuto do Indio [Indian Statute], de 19 de dezembro de 1973, D.O.U. de 21.12.1973 (Brazil). Statute, including territorial rights, were considered provisional as they would only be valid until indigenous people became take part of - or would be assimilated into - the

Brazilian majority society.

Nonetheless, the federal law 6001/1973 (Indian Statute) recognized different kinds of indigenous lands, according to a transitional stage of 'evolution' to "become civilized" people. Although the law was first intending to offer temporary protection to indigenous peoples' lands, it was later developed to serve the 1988 CF Article 231 with a procedure of land demarcation was established by the Indian Statute.83

The 1973 Indian Statute is still the major federal law regarding indigenous' rights in Brazil. It has been modified only to ensure consistency with the Federal

Constitution of 1988. For instance, the creation of different types or classes of indigenous lands and the assimilationist intent behind regulating indigenous peoples' territorial rights were invalidated by the 1988 Constitution. The Indian Statute is still in force since no new federal legislation has replaced it, although proposed replacement statutes have been discussed for decades in order to change it.84

Regarding indigenous peoples' territorial rights, the most significant article of the Indian Statute that is in force, complementing the 1988 Constitution, is Article 19.

Article 19 established that the National Indian Foundation (FUNAI) is responsible for the administrative demarcation of indigenous lands, following the procedures established in a regulatory decree issued by the Executive branch of the State (Federal

Government). The current Administrative Decree in force is Decreto 1776 of 1996, regulating the procedure of demarcation of indigenous lands.

83 Lei Federal No. 6001, Estatuto do Indio [Indian Statute], de 19 de dezembro de 1973, D.O.U. de 21.12.1973 (Brazil). 84 Reforms of the Lei Federal No. 6001, Estatuto do Indio [Indian Statute], de 19 de dezembro de 1973, D.O.U. de 21.12.1973 (Brazil) were proposed and are still under revision by the Brazilian National Congress. See INSTITUTO SOCIOAMBIENTAL, Povos INDiGENAS NO BRASIL: 1996-2000, 105- 106 (Carlos Alberto Ricardo ed., 2000). d. Brazilian Federal Republic (Dictatorship and Democracy)

It was only in the late 1990's-under the 1988 Constitution-that demarcation

of indigenous lands (and mostly in the Amazon region) became significant in Brazil.

Today 13% of the territory is demarcated indigenous land. 85 That is certainly an

advance in a country infamous for its economic and social disparities that are deeply rooted in the unfair system of lands distribution86 and in the limited access to justice.

But the recognition of lands in legislation has still proven not to be enough when: a) there is no State initiative to securing indigenous peoples' right to self-determination, meaning indigenous control over their lands and lives, including to develop that land now demarcated; and b) when there are numerous pending suits, including injunctive decisions overturning or suspending the effects of demarcation to the benefit of third parties-usually ranchers or mining and timber companies.

The paradoxical pattern of formal recognition of indigenous peoples' land rights followed by a lack of implementation has been a recurrent problem in Brazil.

The root of that implementation gap can be found in the fact that legislation regarding indigenous peoples' right to lands has always been related to the need to regulate and favour non-indigenous land occupation. Indigenous peoples' rights have lacked enforcement due to State general preference to accommodate the economic and political interests of the dominant elite of the country.87 It was only fairly recently

85 12,41 % of the Brazilian territory, and mostly in the Amazon region, have been demarcated as indigenous lands according to the concept of traditional lands to indigenous peoples. FUNAI - FUNDA<;:AO NACIONAL DO INDIO, As TERRAS INDiGENAS (2008) available at: http://www.funai.gov.br/. The Brazilian Institute of Geography and Statistics (IBGE) estimates 734.127 or about 0,43% of the Brazilian population is of indigenous people. IBGE CENSUS 2000. 86 According to INCRA, Brazil has a territory of about 850.201.500 hectares and 51 % of it is registered as private property, and 44% of those lands are owned by the wealthiest 1% of the population. (Data Folha, June 1993) 87 The Brazilian Civil Code regulates private property rights and is inspired by Roman law. In Brazil, individual property rights are regulated in a detailed manner as one of the most important objects of Law because the patrimony and the patriarchal family were identified as central to the that indigenous peoples' land rights protection in Brazil began to gradually shift from an issue of agrarian policy issue to a human rights issue under the 1988 Federal

Constitution and international human rights law. 88

The participation ofindigenous peoples in the Brazilian Constitutional Assembly

The 1988 Constitutional Assembly-the first democratic process of

Constitution making-was conducted with an important degree of participation of the indigenous movement, along with other civil society (human rights and environmental) movements in the country. Therefore, article 231 of the 1988 Federal

Constitution introduced humanist innovations. Article 231 of the 1988 Brazilian

Constitution recognized the protection of indigenous peoples' cultures, languages, and forms of social organizations interrelated to the protection of indigenous lands.

The 1988 Constitution crystallized the concept of indigenous lands as the areas necessary for the subsistence, spiritual and cultural activities, and traditions of the indigenous communities.89 Reservation or demarcation of temporary small plots of lands (aldeias) was therefore substituted by demarcation of contiguous areas90 necessary for the continuity of the people. Today, indigenous peoples' lands are protected and regulated by the 1988 Constitution, the 1973 Indian Statute, and the

Administrative Decreto 1775/1996.

The developments of these constitutional protections in Brazil were due to the active participation of the indigenous movement in the process of making the 1988

organization of the western society. The creation of a regulatory system for the establishment of economic values regarding the preservation and conservation of lands and environment has only recently entered the agenda of discussion in Brazil, and mainly through the indigenous movement claims. 88 See infra Chapter IV, e. 89 See supra Chapter II. 90 The contiguous model of demarcation refers to the demarcation of all the area necessary for the survival and development of indigenous peoples and introduced by CF 231, in opposition to the old model of villages demarcation called aldeamento. Constitution. It was also influenced by the developments in international human rights law, and particularly by the attention directed to the Y anomami critical situation in the early 1980's. The Yanomami claim for demarcation of their lands arose after several deaths were caused by the presence of intruders in their lands; this case was brought to the attention of the international community and before the Inter-American

Commission on Human Rights in 1985.91

This case, which had international repercussions, opened the way for the new legislation and policy of the State regarding indigenous peoples' right to lands. In

1991, the Y anomami land was demarcated in Roraima to meet the physical, social and cultural needs of the indigenous peoples from the area. 92 The concept of indigenous land was subsequently developed into Article 231 of the 1988 Brazilian Federal

Constitution. The State's political commitment to the protection of indigenous peoples' lands and human rights was then reaffirmed during the Earth Summit in

1992.93 However, as of today, indigenous peoples still suffer with from a lack of protection of their land rights, even in demarcated areas such as the Yanomami land.94

The gap between legislation and implementation is thus central to the problem plaguing indigenous peoples in Brazil.

Brazilian Federal Constitution, 1988 The 1988 Brazilian Federal Constitution is the highest legal instrument in

Brazil, and as such, it introduced substantial changes to the assimilationist mentality

91 Yanomami v Brazil, Case n.7615, Inter-Am. C.H.R, Resolution 12/85, OEA/Ser.LN/II.66 Doc. 10 rev. I (1985). 92 The demarcated area of Yanomami indigenous land in Brazil is 9,664,975 ha. Decreto Presidencial, 25 May 1992. 93 The United Nations Conference on Environment and Development (Earth Summit) was held in Rio de Janeiro, Brazil, in June 1992. 94 See Hutukara Yanomami Association, Report on the visit of a group of Congressmen that tried to persuade the Yanomami people to allow mining activities within their lands. HUTUKARA, RELATORIO DE VISITA DE PARLAMENTARES A TERRA INDiGENA YANOMAMI, 15 February 2008, available at: http://www.survival-intemational.org/news/32 l 5. that prevailed in the prev10us decades towards indigenous peoples. The 1988

Constitution conferred constitutional protection to cultural diversity as the patrimony of Brazii95 and recognized indigenous peoples' originary right to lands, in accordance with indigenous cultures, forms of organization, and customs. 96 The 1988 Democratic

Constitution incorporated socio-cultural aspects in the definition of indigenous land to guarantee indigenous peoples' continuity and respect their cultural diversity.97 The constitutional text defined indigenous lands as lands traditionally occupied by the

Indians. Lands in which indigenous peoples have inhabited permanently, used for their productive activity, their welfare and necessary for their cultural and physical reproduction, according to their uses, customs and traditions.

Because indigenous lands are patrimony of the Union, the Constitution established that the federal government shall demarcate, and ensure protection to all the indigenous peoples' lands, and that the removal of indigenous peoples from their traditional lands is forbidden, except "in case of a catastrophe or an epidemic which represents a risk to their population, or in the interest of the sovereignty of the country, after decision by the National Congress".98

In Brazil, the identified and recognized indigenous lands are titled to the Union for the permanent and exclusive use and possession by indigenous peoples.99

Indigenous peoples cannot acquire full property rights over their traditional lands, but the possession and usufruct rights are understood as a special kind of ownership right.

In fact, the most urgent claims in Brazil have been limited to the safeguarding of the

95 Constitui9ao da Republica Federativa do Brasil de 1988 [CF88], art. 216. 96 Constitui9ao da Republica Federativa do Brasil de 1988 [CF88], art. 231. 97 See supra Chapter II. 98 Constitui9ao da Republica Federativa do Brasil de 1988 [CF88], art. 231, para. 5. 99 Constitui9ao da Republica Federativa do Brasil de 1988 [CF88], art. 20 and art. 231, para.2. demarcation of indigenous lands according to the constitutional prov1s10n of CF

Article 231, and are not directed towards contesting the extension of the ownership right conferred. Generally, the constitutional provision of Article 231 is considered to offer satisfactory, formal security to indigenous peoples and their lands. The formal sufficiency of the constitutional provision is verified in the States' own effort to comply with its domestic obligations through the demarcation of indigenous lands for the protection of indigenous peoples, their environment, and their cultures.

So far, the main claims of indigenous peoples in Brazil concern securing lands in the constitutional mold without much discussion on the formal title of the lands.

According to the current position of the federal body FUNAI, the State's property right combined with perpetual usufruct, permanent occupation, and participation in the management of the land and resources by indigenous people, respond to the demand for indigenous' land security. The combination of possession and property rights to indigenous peoples, and the Union, is believed to better secure indigenous right to land, attending to special needs that may arise in protection of vulnerable groups. 100

The protection of indigenous lands is seen above all as a way to protect indigenous peoples' cultural and physical survival. The protections under Brazilian law do not necessarily encompass all the formal features of the internationally acknowledged right to property of indigenous peoples, as for instance they do not hold full ownership rights or full control of the lands. Much of this limitation is

100 The legal protection conferred by the CF88 could be considered enough as legislation, if at least the Executive implementation of rights (through the demarcation of indigenous lands) would be followed by a consistent enforcement of rights in the judiciary, offering legal security to the areas demarcated. rooted in the paternalist mentality derived from old assimilationist policy. However, in legal terms, the interpretation of such limitations of indigenous peoples territorial rights should be harmonized with international human rights standards allowing full protection of indigenous peoples lands and their self-determination. Today the State has to comply with its international obligations and has acknowledged on the political scene the converging scope of the Constitutional and international provisions regarding indigenous peoples' rights.

But the lack of enforcement of these rights have raised doubts as to whether the constitutional protection of indigenous lands is sufficient as it is to observe indigenous peoples' human rights and the State's international obligations.

Demarcation alone has not produced sustainable outcomes for indigenous peoples.

This demands a reaffirmation of the constitutional rights conferred to indigenous peoples without discrimination.

Unfortunately, a number of cases have shown that administrative demarcation of lands, titled as 'property of the Union for the permanent and exclusive use by indigenous peoples' is not enough to secure indigenous lands and indigenous rights in

Brazil because indigenous peoples' lands are being threatened by innumerous forms of invasion and also by legal challenges against demarcation procedures. 101 There is only limited indigenous control over their identified and demarcated lands in the current regime due to pending legal challenges.

The judiciary-known for its slow process-is often used as a strategic tool by third-parties and the federation units to undermine or diminish the federally recognized right to lands of indigenous peoples. Formal recognition of indigenous

101 See infra Chapter IV, a, d and e. peoples' lands may thus become meaningless on the ground, if no enforcement and legal security are verified in the judiciary. The unbalanced agrarian structure of the country and the idea of an individual property right regulated by civil statutes, as opposed to Constitutional rights of indigenous peoples are the common grounds for numerous of the judicial challenges against the demarcation of indigenous lands. 102

Takeovers of traditional lands and judicial challenges against demarcations also find support in the lack of harmonization among constitutional law, indigenous and development policies. 103 The State's general preference for, and reluctance to let go of, colonial legal traditions has contributed to the lack of enforcement of indigenous peoples' constitutional rights.

Administrative Decree 1775, 1996 Since 1988, in Brazil, indigenous peoples have had their inherent territorial rights related to their cultural and physical survival and development recognized by the Constitution. Indigenous peoples are also guaranteed the permanent possession of their lands and exclusive enjoyment of the soil, rivers, lakes and other resources within their lands plus a share with the Union of benefits received from the exploitation of the water and energy resources of the subsoil of their land. 104

In order to ensure that those indigenous territorial rights are effectively secured, the 1988 Constitution determined that indigenous peoples lands should be

102 The Brazilian agrarian structure is rooted in the concept of private property, inherited from the colonial agrarian structure. The social function of property and the existence of collective and difuse rights over the lands and the environment are acknowledged and protected in the Brazilian Federal Constitution but have not yet been enforced by the Judiciary. According to the 1988 Brazilian Federal Constitution, the concept of private property is counterbalanced with the idea of social justice. However, the constitutional provisions for the guarantee of social justice -- including the protection of indigenous peoples' lands -- have mostly been interpreted as programmatic norms and perhaps too broad to be considered as justiciable as a right to individual property, which is extensively regulated by the Brazilian Civil Code. Brazilian Federal Constitution, Articles 5 XXIII 184, 186, and 231.

103 For instance, the contemporary forms of taking and using lands by ranchers, supported by governmental policies-usually to develop monoculture farms and other forms of natural resources' exploitation-are regulated by a secular system of formal and informal rules to which lands are economic assets at the disposition of the individuals, and thus, subject to any kind of trade. 104 Constitui9ao da Republica Federativa do Brasil de 1988 [CF88], art.231. identified through an administrative procedure of demarcation of lands. In Brazil, the demarcation procedure does not give or take a right; it does not create an indigenous immemorial site or a traditional habitat; it only clarifies the extensions and limits of indigenous land necessary for indigenous peoples' cultural survival. 105

The demarcation procedure, established in the Decreel 775/96, is composed of

4 major steps. First, an area is identified by a multidisciplinary group of experts in accordance with the traditional use of the territory by an Indigenous people. Second, the Minister of Justice declares the area as an indigenous land. Third, the indigenous land is physically demarcated by the federal indigenous agency (FUNAI). Finally the demarcation is ratified in a homologation decree signed by the President of Brazil.106

On the ground, the Decree 1775/96 and each phase of the demarcation procedure have been subject to legal challenges within domestic courts and particularly at the Brazilian Federal Supreme Court. 107 Despite the legitimate possibility of judicial control over the administrative acts in the context of land demarcation, most of the domestic claims filed have a clear intent to provoke delays in conferring indigenous rights, to increase the insecurity in indigenous peoples' lands, and to move towards an irreversible situation on indigenous' land loss.

However, today, the promotion and protection of indigenous peoples' rights domestically-including the implications of an inactive judiciary-are also monitored by international human rights bodies, to which the State has accepted jurisdiction.

e. Brazilian foreign policy and enforcement of human rights Since the re-establishment of democracy in Brazil, the State has recognized

105 See irifra Chapter IV, a. 106 Decreto No. 1775, de 08 de Janeiro de 1996, Art. 2, D.O.U. 09.01.1996. 107 See infra Chapter IV, c, d and e. that there are challenges to be dealt with and affirmed its efforts to promote, protect and respect human rights-in stark contrast to the history of human rights violations denial during the dictatorship regime. 108 Concerning indigenous peoples human rights, and the numerous violations taking place, the State still needs to acknowledge the particularly vulnerable situation of indigenous peoples and the specific obstacles to protect indigenous peoples and their fundamental rights on a non-discriminatory basis. Instability, incoherence and a schizophrenic application of the law characterize the protection of indigenous lands under the model of lands regulation instead of the model of human rights today.

While the Executive Federal Government has made international political commitments to promote human rights, these have not been supported by enforcement agents, the states as federation units, the judiciary, and the legislature in Brazil One of the reasons for this dissociation of commitments and practice can be found in the process by which the legal incorporation and relevance of international human rights laws have been dealt with domestically. Reviewing the international human rights developments in Brazil, Pinheiro highlighted that "changes in foreign policy during the 1980s and 1990s, which were marked by the acceptance of international monitoring, compliance with multilateral human rights organizations, accountability for state agents, and transparency in regard to human rights violations, were not the result of massive or overwhelming socio-political change". 109

From 1985, with the return of the civil government (although not directly

108 Initiatives at all levels of government-federal, state and municipal-and institutions to protect, promote and respect human rights have been established in Brazil, with increasing participation and monitoring by the civil society. Today Brazil has a Human Rights Special secretary with status of Ministry that responds to reports of human rights violations of the State and develops public policies on human rights. 109 PAULO SERGIO PINHEIRO, BRAZIL AND THE INTERNATIONAL HUMAN RIGHTS SYSTEM, University of Oxford Centre for Brazilian Studies, Working paper CBS-15-00(P), 38, (1999) available at: http://www.brazil.ox.ac.uk/_ data/assets/pdf_ file/0005/9419/pinheiro 15.pdf. elected) and the re-establishment of democracy in Brazil, international human rights have started to be incorporated into the domestic legislation through the ratification of international treaties. According to Pinheiro, the new approach of transparency in

Brazilian foreign policy contributed to: 1) the control of State violence previously accepted under the military regime; 2) the promotion of changes in policy and legislation; 3) the making of the judiciary's application of international human rights norms more viable; and 4) the transformation of the social dynamics of the State through encouraging civil society to confront violations and abuses on the part of the

State. International norms were decisive in strengthening and empowering groups struggling domestically to have their rights respected, and in creating conditions for the internalization of such norms in the domestic legal and political systems. 110

Therefore, the voice of indigenous peoples influenced the Constitutional Assembly to guarantee indigenous peoples' right to lands in line with human rights standards.

However, the actual incorporation and implementation of human rights norms in Brazil has faced a number of obstacles that reveals the inconsistencies between the acceptance and use of international human rights instruments in Brazil. In fact, there has been a clear tension between the federal government's more pro-active policy of promoting human rights and the lack of commitment-and to some degree ~ immunity-of state governments agents, judiciary, police and other institutions to comply with and enforce human rights obligations. 111 Particular difficulty is identified in the lack-and avoidance-of reference to human rights standards and norms in indigenous land rights' cases such as Raposa Serra do Sol case before the

Brazilian Federal Supreme Court. 112

110 Ibid., 37. Ill Ibid., 29 112 See infra Chapter IV, e. Only in extreme and widely known cases of violation of human dignity and fundamental rights-such as the imminent threat to extinction of the Krenak people due to loss of lands-and only under the umbrella of an international system of human rights, have indigenous land rights' claims gained relevance and sympathy from the Brazilian judiciary. The recognition of indigenous peoples as peoples and their right to self-determination-meaning control over their lives, lands and institutions-are protected under the right to lands in Constitutional and International laws. Nonetheless, lack of implementation and enforcement of such right has led to

"violent" racism against indigenous peoples in Brazil.

The gap between commitments and practices can result in the State's violation of international human rights law. Although the positions within the State's institutions such as the Federal Government, local government and the judiciary are in radical opposition on the ground, internationally the State as a whole must account for its violation of human rights obligations. Therefore, international human rights law and the Brazilian Constitution set the minimum obligations for the State as a whole regarding the protection of indigenous peoples' rights. Although international human rights bodies are not acknowledged to have any direct influence over domestic courts, international accountability plays a key role in the State's own system of checks and balances to safeguard justice for indigenous peoples without discrimination.

International Monitoring Through the Ratification of International Human Rights

Treaties

Since 1985 and the first constitutional efforts in the formation of the democratic regime, which led to the 1988 Brazilian Federal Constitution, Brazil has reaffirmed the constitutional protection of indigenous peoples' rights and committed itself to an international human rights agenda. Brazil included human rights as part of its modernization project, to move further from the dictatorship regime because of ethical reasons and in order to achieve a more influential role in international institutions. 113 Therefore, the incorporation of human rights' protections in Brazil was gradual, but complementary to the constitutionalization of fundamental rights.

Brazil has accepted most of the international human rights instruments, including the ones that recognize and protect indigenous peoples' rights.

As a charter member of the United Nations and a member of the Human

Rights Council 114, Brazil has assumed an important role in the field of international human rights. On the 24th of April 1992, the country acceded to the International

Covenant on Civil and Political Rights (ICCPR) and to the International Covenant on

Economic, Social and Cultural Rights. However, the State did not accept the jurisdiction of the Human Rights Committee to consider individual complaints under the First Optional Protocol to the ICCPR115 • Brazil ratified the International

Convention on the Elimination of All Forms of Racial Discrimination (ICERD) and recognized the competence of the Committee on the Elimination of Racial

Discrimination (CERD) to consider individual claims under the optional article 14, on

17 June 2002. Brazil is also party to the International Labour Organization (ILO)

Convention No. 169. The State ratified the ILO Convention No. 169 in 2002, and incorporated the international convention into its domestic legislation through the

Decree 5.051 of 19 April 2004. In 2007, with the majority of the state members of the UN General Assembly, Brazil voted in favor of the adoption of the UN

Declaration on the Rights of Indigenous Peoples and in 2008 the State received the

113 Ibid. 114 Brazil is a member of the Council from 19 June 2006 until 2011. The Human Rights Council was created by the UN General Assembly on 15 March 2006 with the main purpose of addressing situations of human rights violations and make recommendations on them. G.A. Res. 60/251, UN Doc. A/Res/60/251 (3 April 2006). 115 First Optional Protocol to the International Covenant on Civil and Political Rights, (16 December 1966), entry into force 23 March 1976. UN Special Rapporteur on the Fundamental Rights and Freedoms of Indigenous

People, Prof. James Anaya.

At the regional level, Brazil is a member of the Organization of American

States (OAS) and is bound by the American Declaration of the Rights and Duties of

Men. Brazil ratified the Protocol of San Salvador on 21 August 1996, which is the instrument for the Inter-American Region concerning economic, social and cultural rights. Brazil is party to the Inter-American Convention on Human Rights and accepted the jurisdiction of the Inter-American Court of Human Rights, on 10

December 1998. The Inter-American Commission on Human Rights monitors the situation of human rights of the OAS member States and has issued recommendations for the protection of indigenous peoples' territorial rights in Brazil in 1985, 2004, and

2007. 116 Brazil has been a leading country in the working group discussions on the

OAS Declaration on the rights of indigenous peoples.

116 Yanomami v Brazil, Case n.7615, Inter-Am. C.H.R, Resolution 12/85, OEA/Ser.LN /ll.66 Doc. 10 rev. 1, Chapter 3, (1985), and Raposa Serra do Sol v. Brazil, Petition 250- 04 and Precautionary Measures 818-05, Inter-Am. C.H.R, Annual Report 2004,0EA/Ser.LN/11.122, Doc. 5 rev. I, Chapter 3 (2005). IV - Enforcement of Rights: Cases before the Brazilian Federal Supreme Court The urgent need for constitutional, legislative and institutional reform with regard to the rights of indigenous peoples to be implemented on the ground has been identified by Professor Stavenhagen, former UN Special Rapporteur on the fundamental rights and freedom of indigenous peoples.117 However, according to Stavenhagen, in different parts of the world he found slowness and difficulties in implementing those reforms and the frequent inconsistency between legislation on indigenous rights and sectoral legislation. According to him, "This contradiction arises above all in connection with the right to natural resources, generating a great deal of uncertainty and tension, which often finds expression in persistent social conflict." 118

The gap between formal recognition and implementation of indigenous peoples' territorial rights is~erent to the foundations of Law and the occupation of lands in Brazil. 119 The prevalence of economic interests over the lands and its natural resources over the protection of the human rights of indigenous peoples is the main reason why indigenous lands are not protected on the ground. Indigenous peoples are facing judicial challenges against indigenous territorial rights, even after their lands have been demarcated and ratified by the State. 120 Structural transformation and more pro-active initiatives at all levels of the State are required to fill the gap between formal protection and the situation on the ground, 121 and to promote equality in

117 Professor Rodolfo Stavenhagen particularly noted the legal standards of Burundi, Cambodia, Morocco, Norway, Nicaragua and the Bolivarian Republic of Venezuela in regard to indigenous peoples' rights and observed the constitutional reform processes of Nepal and Kenya. 6th Annual Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, Rodolfo Stavenhagen to the UN Human Rights Council, UN Doc. A/HRC/4/32 para. 6 (27 February 2007). 118 Ibid., para. 7. Professor Stavenhagen identified that in countries such as Cambodia, Chile, Mexico and the Philippines, practice shows that these conflicts are sometimes resolved in a manner contrary to indigenous people's interests and rights. Nevertheless, he acknowledged that the new legal standard has become an essential tool for promoting the rights of these people, especially through the judicial system. 119 See supra Chapter III. 120 See infra Chapter IV, d and e. 121 See more on formalism and realism in the legal system for the protection of indigenous Brazil. 122

The Brazilian legal provisions for the promotion and protection of collective fundamental rights-including indigenous peoples' rights-exist. However, such provisions require further development to achieve the social, political and legal relevance once envisioned. Discrimination against indigenous peoples and their cultures is central to the lack of indigenous rights' enforcement because it does not allow for cultural sensitivity. For instance, arguments that indigenous lands are too much land for too "little people"123 or that valuable lands and resources are wasted on

"primitive people" are commonly presented in court cases. Discrimination and the misconception about the significance of lands to indigenous peoples and the denial of their fundamental rights to be culturally distinct and to develop as peoples are key obstacles to the implementation of indigenous peoples' right to lands in Brazil.

Brazil faces a crucial decision-whether to assert its position of reaffirmation

(or denial) of indigenous peoples' constitutional right to lands. The judiciary plays a special role in this process. Although enforcement of indigenous peoples' right to lands by domestic courts is still limited, current efforts by the State towards a more progressive position have been identified.124 Nonetheless, the Federal Supreme Court

peoples' rights. S. JAMES ANAYA, International Human Rights and Indigenous Peoples: The Move Toward the Multicultural State, 21 ARIZ. J. INT'L & COMP. L. 13 (2004). 122 Inequalities are one of Brazil's dismal characteristics, where the top 1% of the population has a monthly income greater than the total monthly income of the lower 50%of the population, and the indigenous people are at the bottom line of that socio-economic pyramid. According to IBGE/UNICEF, over 50 million people live in poverty-with less than half of the per capita minimum wage (minimum wage of around US$ 190.00/month) and 4 7 .6% of those are children. The racial inequality is verified in the 34.5% of the white children living in poverty conditions, whereas 63.2% of the indigenous children are affected by poverty. UNIFEM/UNICEF, Percentage of poor children in Brazil, DESIGUALDADES RACIAIS E DE GENERO ENTRE CRIANCAS, ADOLESCENTES E MULHERES NO BRASIL, NO CONTEXTO DOS OBJETIVOS DO MILENIO (2004). 123 12.41 % of the Brazilian territory, and mostly in the Amazon region, have been demarcated as indigenous lands according to the concept of traditional lands to indigenous peoples. FUNAI - FUNDA<;:Ao NACIONAL DO INDIO, As TERRAS INDiGENAS (2008), available at: http://www.funai.gov.br/. The Brazilian Institute of Geography and Statistics (IBGE) estimates 734.127 or about 0,43 % of the Brazilian population are indigenous people. IBGE CENSUS 2000. 124 See infra Chapter IV, c. must urgently affirm and enforce indigenous peoples' rights.

a. The Federal Supreme Court and indigenous land rights' cases The Federal Supreme Court (STF) is the highest judicial body in Brazil, 125 and the competent organ to decide on constitutional matters and disputes between the federation states and the Union. 126 Therefore, indigenous land rights' cases are usually directed to the Supreme Court. 127 The cases generally allege the lack of constitutionality of the administrative demarcation of indigenous lands, the presidential ratification, or of the presidential decree regulating the demarcation procedure.128 Indigenous peoples' fundamental rights and their originary right to lands acknowledged in the Brazilian Constitution have only been indirectly addressed by the Supreme Court.

Supreme Court decisions tend to address procedural aspects of the disputes, allowing some degree of flexibility that would not be allowed in the pure enforcement of indigenous peoples' constitutional rights. In addition, decisions to grant injunctions have harmed indigenous peoples and the enjoyment of their rights, even if on a provisional basis. Nonetheless, in 1961, the Federal Supreme Court reaffirmed the special significance of indigenous peoples' right to lands, as a fundamental right for the existence and protection of indigenous peoples' cultures and environment, in an interpretation that would later become constitutional text. 129

125 Constituii;;ao da Republica Federativa do Brasil de 1988 [CF88], art. 104. 126 Supremo Tribunal Federal [STF], Reclamai;;ao 2.833-0/RR, Relator: Min. Carlos Britto, DJ 05.08.05, STFJ. 127 Nonetheless a number of indigenous land rights cases are addressed by the Federal Courts without having to reach the Supreme Court. See Jurisprudence of Federal Courts on indigenous land rights cases. See ERIKA y AMADA, ANALISE JURIDICA DA DEMARCA(:AO ADMINISTRA TIVA DAS TERRAS lNDiGENAS NO BRASIL, 113, (Procuradoria Federal Especializada FUNA, Relat6rio Juridico, July 2006). 128 See supra Chapter III, d. 129 In 1961, Federal Supreme Court Justice Victor Nunes Leal interpreted the constitutional art. 216 to distinguish civil ownership right to indigenous lands rights. "Aqui nao se trata do direito de Since then, the supremacy of indigenous peoples' constitutional right to lands

has not been declared by the Federal Supreme Court. Under the democratic

Constitution of 1988, the Supreme Court has decided in only a few cases concerning

indigenous peoples lands. It has declared the Union's property rights (see Box 1

Krenak case), but has not enforced indigenous peoples' right to lands or reaffirmed its

preeminence as a constitutional right over individual property rights. However, case

law and injunctive decisions by the Federal Supreme Court have invalidated titles

conferred by the federation states to third parties over indigenous lands-first of all

because they were property of the Union and not the state's property.130 In other court

rulings, the Federal Supreme Court has not allowed the removal of non-indigenous

illegal occupants from demarcated and ratified lands-sometimes even after

compensation was paid. 131 For example, in the case of the Guarani people from Mato

Grosso do Sul, a Supreme Court preliminary ruling contributed to the eviction of

propriedade comum; o que se reservou foi o territ6rio dos indios ... Nao esta em jogo, propriamente, um conceito de posse, nem de dominio, no sentido civilista dos vocabulos; trata-se de um habitat de um povo. Se os indios, na data da Constituic;ao Federal ocupavam determinado territ6rio, porque desse territ6rio tiravam seus recursos alimenticios, embora sem terem construc;oes ou obras permanentes que testemunhassem posse de acordo com o nosso conceito, essa area, na qual e da qua! viviam, era necessaria a sua subsistencia. Essa area ... e que se mandou respeitar. Se ela foi reduzida por lei posterior, se o Estado a diminuiu de dez mil hectares, amanha a reduziria em outros dez, depois, mais dez, e poderia acabar confiando os indios a um pequeno trato, ate ao territ6rio da aldeia, porque ale e que a "posse" estaria materializada nas malocas ... Entendo, portanto que, embora a demarcac;ao desse territ6rio resultasse, originariamente, de uma lei do Estado, a Constituic;ao Federal disp6s sobre o assunto e retirou ao estado qualquer possibilidade de reduzir a area que, na epoca da Constitui9ao, era ocupada pelos indios, ocupada no sentido de utilizada por eles como seu ambiente ecol6gico." Supremo Tribunal Federal [STF], Recurso Extraordinario n. 44.585/MT, Relator: Min. Ribeiro da Costa, D.J. 11.10.61; Supremo Tribunal Federal [STF], MS 16.443-DF, Relator: Min. Raphael de Barros Monteiro, D.J. 27.03.68. 130 Opinion of the Federal Supreme Court Justice Francisco Resek in Krenak "Nao podia o Estado, assim, dar as terras a terceiros e promover registro disso ... o poder publico estadual nao tinha base juridica para invocar condi9ao resolutiva - em gesto unilateral - e disseminar titulos de propriedade a partir de entao, porque desde 1934 as constitui96es vinham dizendo do dominio da Uniao sobre as terras em que verificada - como aqui atesta o acervo pericial - a posse indigena. Supremo Tribunal Federal [STF], Ac;ao Originaria Civil n. 323-7/MG, Relator: Min. Francisco Rezek, DJU 08.04.1994, STFJ. See also Supremo Tribunal Federal [STF], Mandado de Seguranc;a n. 20.723-0/DF, Relator: Min. Djaci Falcao, DJU 18/03.88; Supremo Tribunal Federal [STF], Mandado de Seguranc;a n. 20.575-0/DF, Relator: Min. Aldir Passarinho, 22, DJ. 21.11.86; Supremo Tribunal Federal [STF], Mandado de Seguranc;a n. 20.515-6/DF, Relator: Min. Djaci Falcao, DJU 22.08.86; and Supremo Tribunal Federal [STF], Mandado de Seguran<;a n. 21575, Relator p/ ac6rdao: Min. Ilmar Galvao, DJ 17.06.94. 131 See supra Chapter IV, e. indigenous peoples from a demarcated area that was under judicial litigation. 132

The ambivalent position of the Federal Supreme Court-to offer limited protection or else no protection to indigenous peoples-has contributed to the sense of weak or absent enforcement of indigenous peoples' constitutional rights in the country. 133 Indigenous peoples' right to lands has not been asserted and enforced, as it should, with the weight of a fundamental right for indigenous peoples. Meanwhile, the legal insecurity created by such decisions undermines the efforts to implement such rights at the administrative level-for instance through the demarcation of indigenous peoples' lands. When a right formally proclaimed by the Constitution, is not vested with enforcement on the ground, it can easily be transformed into an object of political bargaining, and subject to the prevailing economic interests.

The 1988 Federal Constitution, and international human rights law have set rights and standards that help to assert indigenous peoples rights, and counter-balance the political influence within the judiciary.134 Therefore, enforcement of indigenous people's constitutional rights is not only available in the current Brazilian legal order, but also in line with the Brazilian political commitments and international obligations to promote and protect human rights. 135

132 See supra Chapter IV, d. 133 Indigenous land rights cases in the Brazilian Federal Supreme Court: Patax6 ha ha hae BA, Guarani-Kaiowa MS, Raposa Serra do Sol RR. See supra Chapter IV. 134 See supra Chapters III. 135 See infra Chapter VI Box 1 - Krenak case: the reaffirmation of indigenous peoples right to lands at the Federal Supreme Court

In 1994, already under the rule of 1988 Constitution, the Supreme Court issued one of the few and last sentences to enforce the constitutional protection of indigenous lands for the benefit of the Union and the Krenak people on the ground in a decisive manner. 136

The Krenak people were forcibly removed from their traditional lands, located in Vale do Rio Doce (between Minas Gerais and Espirito Santo states), in a discriminatory effort to 'empty' the lands for occupation of private parties. 137 The state of Minas Gerais then issued titles over those newly 'empty' areas to 54 ranchers. The illegal take over of indigenous lands was consolidated through the federation unit.

While the Krenak people were no longer occupied their lands because of that forced, discriminatory, and even violent removal, 138 the Prosecutors Office and the Union filed a claim (As;ao Civil Originaria) before the Federal Supreme Court to secure the Krenak traditional land. It was alleged that the security of Krenak land was essential to the survival of Krenak people and culture. Since displacement from their traditional lands, a number of Krenak members were disaggregated from the group. Some died and many ran away from the new areas where they were confined and forced to live under new social rules. Reduced to 600 people in the 1920's, by 1989 there were only 130 Krenak members. 139

In this scenario of the threatened extinction of a people, the Federal Supreme Court when addressing the case, placed indigenous territorial rights above any other property right. In 1994 the Supreme Court declared that all the titles issued by the Government of Minas Gerais were void. The Supreme Court declared that the ranchers did not even have the right to stay in the area while presenting their case to discuss their right to compensation for alleged improvements. 140 The key legal reason for the outcome was that the Krenak lands once taken belonged to the Union; therefore, the state of Minas Gerais could not have granted any title over it.

In 1997, the land of the Krenak people was officially returned. However, environmental damages and the incomplete demarcation of the indigenous land still pose challenges to the existence of indigenous peoples and their development according to their customs and traditions. 141

136 Supremo Tribunal Federal [STF], A1,ao Originaria Civil n. 323-7/MG, Relator: Min. Francisco Rezek, DJ 08.04.1994, STFJ. 137 The removal of the Krenak people was largely conduced by the FUNAI and previous SPI federal agencies. INSTITUTO SOCIOAMBIENTAL, ENCICLOPEDIA Povos INDiGENAS NO BRASIL (updated 2008), available at: http://www.socioambiental.org/pib/epi/krenak/retorno.shtm. 138 AIL TON KRENAK, 0 Eterno Retorno do Encontro, A 0UTRA MARGEM DO 0CIDENTE, (Adauto Novaes ed.) (1999). 139 Ibid. 140 Supremo Tribunal Federal [STF], As;ao Originaria Civil n. 323-7 /MG, Relator: Min. Francisco Rezek, DJ 08.04.1994, STFJ. 141 Krenak Indigenous People Block Railway of Biggest Brazilian Mining Company, CONSELHO INDIGENISTA MISSIONARIO, 01 December 2005, available at: http://www. cimi. org. br/?system=news&action=read&id= 15 9 5 &eid=340. Nonetheless, Krenak rights over that recognized and demarcated land seem to be ultimately secured in law since after the 1994 Supreme Court decision. The legal security conferred through the enforcement of the Krenak peoples' constitutional right to lands has allowed indigenous peoples to feel more confident that their lands will be respected as indigenous lands.

The pending cases Similar cases were pending at the time of the Krenak decision and others have ansen at the Federal Supreme Court since the Krenak decision. However, the outcome of those cases was not as far-reaching as in Krenak. Possibly, the threat to extinction of the Krenak people was an unbearable human rights responsibility for the

Court and the State to take national and internationally.

Much has changed in Brazil since the Krenak decision. Indigenous lands issues are no longer dealt with as a mere conflicts between the status of lands as belonging either to the Union, the federative states or third-parties. Since the Krenak decision, the human rights aspect of indigenous land rights cases has been identified although it has not been appropriately dealt with by the Supreme Court.

In addition to the human rights character, indigenous peoples' lands right cases now involve more political and economic interests than ever before. These economic and political dimensions reveal the discriminatory treatment suffered by indigenous peoples. Since Krenak, the Federal Supreme Court has adopted a much more timid posture regarding the affirmation indigenous peoples' rights, and limited its rulings to discuss procedural aspects of the cases, at least up to August 2008, when

Raposa Serra do Sol and Patax6 h!i h!i hae cases had their first hearings scheduled.142

Today, economic development projects, issues of the protection of border areas, conservation of the environment and climate change policies touch upon the

142 See infra Chapter VI, c. ISsue of protection of indigenous lands, cultures and forms of social and political

organization. Politicians and third parties are reluctant to recognize indigenous

peoples, their distinct cultures, or their traditional lands if that would imply any

burden to their special interests. Therefore the Supreme Court has been called to decide on polemic issues under a new political scene.

The existence of pending legal actions and granting of injunctions, which work against the recognition of indigenous lands, has paralyzed the administrative procedure of indigenous lands' demarcation in Brazil. The lack of final decisions at the Supreme Court suggests that enforceability of indigenous peoples' constitutional right to lands is problematic in Brazil. Cases where conflicts between the protection of indigenous peoples' constitutional rights and more extreme political interests are especially affected by the reluctance of the Supreme Court to progress the recognition of indigenous peoples' rights. 143 By not delivering final and consistent decisions on numerous pending cases-usually cases that are legally similar but politically or economically distinct-the Supreme Court has been denying the fundamental rights o f m. d. 1genous peop les. 144

The belief that the judiciary will not enforce constitutional rights to protect indigenous peoples has prompted an environment of insecurity and allowed discrimination to flourish. 145 This is especially the situation in cases regarding the lack of security over lands that have already been administratively demarcated and

143 See supra Chapter IV, d and e. 144 Inter-American Convention on Human Rights, Art. 24. 145 Submission to the UN Racial Discrimination Committee (CERD) for Procedures to Avoid Immediate and Irreparable Harm to the Indigenous Peoples of Raposa Serra Do Sol, and Follow-Up on Brazil's State Party Report (CERD/C/431/Add.8) submitted by the Conselho Indigena de Roraima, the Indigenous Peoples Law and Policy Program at the University of Arizona, The Rainforest Foundation US, and the Forest Peoples Programme (22 June 2006). See also supra Chapter IV, e. ratified. 146 Once the administrative demarcation is completed-a process that can last several years or decades-the land should be finally secured for the indigenous peoples' use and possession on a permanent and exclusive basis, as determined in the

Constitution. 147 But when a judicial decision-usually an injunction-or lack of decision, overturns or stops the administrative activities to implement the constitutional provision, that sense of justice is lost. 148 Therefore, today there is a great expectation for the Supreme Court's final decisions to confirm the enforcement of constitutional rights for indigenous peoples.

b. The most used legal actions The majority of the Federal Supreme Court cases on indigenous land rights are discussed within the court injunction Mandado de Seguran<;a. 149 Those cases usually refer to the unconstitutionality of the Ministry act (Portaria Ministerial) or of the subsequent presidential act (Decreto de Homologa<;ao) within the demarcation procedure of indigenous lands. 150 The requests pending at the Supreme Court are usually to: 1) invalidate the administrative procedures of the demarcations; or 2) invalidate the effects of the demarcations such as the removal of the non-indigenous occupants; and 3) stop or postpone the lands' demarcation procedure by alleging imminent threat to a third party's right. In sum, those requests are indirectly asking for the non-implementation of the constitutional provision of article 231.

146 See supra Chapter IV, d and e. 147 See supra Chapter III. 148 COORDENA<;:AO DAS 0RGANIZA<;:6ES INDiGENAS DA AMAZONIA BRASILEIRA [COIAB] ET AL., V ACAMPAMENTO TERRA LIVRE, ABRIL INDIGENA 2008 [Final Indigenous Report], available at: http://www.coiab.com.br/ coiab.php?dest=show&back=noticia&id=69&tipo=N &pagina= 11. 149 See supra Chapter IV, b. 150 Between 1990 and 2006,the Brazilian Federal Supreme Court decided on 36 suits regarding indigenous lands and 14 of them were injunction mandado de seguran9a requests. ERIKA YAMADA, ANALISE JURIDICA DA DEMARCA<;:AO ADMINISTRATIVA DAS TERRAS INDIGENAS NO BRASIL, 64-67, (Procuradoria Federal Especializada FUNA, Relat6rio Juridico, July 2006). In regard to indigenous peoples' land rights, the same factual situation can yield different views of the status quo situation that should be preserved. For instance,

Federal Supreme Court's preliminary decisions in granting injunctions have substantially conferred the benefit of maintaining the status quo to stop demarcation procedures, instead of re-establishing the situation prior to the fairly recent occupation of the lands by third parties and avoid further violations of indigenous rights.151 Court injunctions adopted by the Supreme Court rarely refer to the fumus bani Juris and periculum in mora to benefit indigenous peoples. 152 Therefore inconsistent preliminary decisions by the Supreme Court ( and other courts) granting and suspending rights established by the administrative demarcation of lands have led to an unequal application of the law, to the detriment of indigenous peoples.

Mandado de Seguranr;a The most common legal action or remedy used to challenge the demarcation of indigenous peoples' lands is the court injunction, or writ of mandamus, called

Mandado de Seguranr;a. Since 1961, the Federal Supreme Court has ruled that

Mandado de Segurarn;a requires the ultimate proof that the petitioner already holds uncontested rights (direito liquido e certo) over the disputed lands. If there is any doubt as to the certainty of that right, court injunction cannot be claimed. In terms of procedure, any request for the writ is provisional because, subsequent to the injunction, the petitioner must present a legal action (Ar;ao Civil Ordinaria) for a final decision on the case. 153

151 Summary of the Federal Supreme Court jurisprudence on indigenous peoples lands cases. See ERIKA YAMADA, ANALISE JURIDICA DA DEMARCAyA.O ADMINISTRA TIV A DAS TERRAS INDIGENAS NO BRASIL, (Procuradoria Federal Especializada FUNA, Relat6rio Juridico, July 2006). 152 ERIKA YAMADA, ANALISE JURIDICA DA DEMARCA<;:A.O ADMINISTRATIVA DAS TERRAS lNDiGENAS NO BRASIL, 72-76, (Procuradoria Federal Especializada FUNA, Relat6rio Juridico, July 2006). 153 Lei Mandado de Segurarn;:a No. 1533, de 31 de dezembro de 1951, D.O.U 31.12.1951. The Supreme Court has received request for injunction through Mandado de

Seguran<;a against the Federal Government to contest the legality of the demarcation procedures; and against indigenous peoples and their organizations to complain about their presence in disputed areas, or to request impediments to their presence in the area. In 1986, still under the previous Constitution (Constitutional Amendment 1,

1969), the Federal Supreme Court ruled on the use of Mandado de Seguranc;a in the context of indigenous lands' disputes. 154 In its findings, the Supreme Court stressed that the administrative procedure of indigenous lands' demarcation was legally valid to give effect to indigenous peoples right to lands, as affirmed in the Article 198 of the 1967 Constitution. 155 Similar confirmation is today being urged at the Supreme

Court under the 1988 Constitution.

Under the previous Constitution, the Supreme Court understood that the demarcation of indigenous lands was not an abusive act by the State, nor was it an act against private property, which was required to justify the filing of an injunction. The

Supreme Court asserted that due to the constitutional provision, there was no individual property right constituted over those areas. Moreover, existing titles over indigenous lands were void, because those lands belonged to the Union.

Consequently, the Supreme Court concluded that there could be no uncontested right to property (direito adquirido) of third parties over lands inhabited by indigenous people. Therefore, the substantial requirement of an uncontested right was lacking in

154 Supremo Tribunal Federal [STF], Mandado de Seguranc;a n. 20.575-0/DF, Relator: Min. Aldir Passarinho, 36, DJ. 21.11.86, STFJ & Supremo Tribunal Federal [STF], Mandado de Seguranc;a n. 20.515-6/DF, 46, Relator: Min. Min. Djaci Falcao, D.J.U. 22.08.86. 155 Emenda Constitucional n.l de 1969 [Constitutional Amendment], art. 198 - The lands inhabited by the indigenous communities cannot be encumbered or transferred as specified by federal law, indigenous communities are entitled of the permanent possession of those lands and have recognized the exclusive rights to the utilization of the natural resources and all the utilities existing therein. the referred cases. 156 Since then, Mandado de Seguran9a requests tend to be dismissed at the final stage by the Supreme Court based on that jurisprudence.

However, because of its faster procedure and due to its urgent or precautionary character, 157 the court injunction Mandado de Seguran9a is largely used to stop federal demarcations of indigenous lands, even if temporarily. 158 The maneuver is aimed at keeping the situation in a "long provisional" state for the benefit of non­ indigenous parties. The extensive and sometimes undetermined period of time that the precautionary measures delay the case and can allow non-indigenous occupants time to transform indigenous lands into "third-party occupied" lands. 159 Nonetheless, court injunctions are sustainable only on a temporary basis and while the Federal

Supreme Court does not deliver its final decisions, usually of dismissal of the case. 160

Ar,;ao direta de inconstitucionalidade

Another common legal action presented to contest the administrative procedure of indigenous lands' demarcation IS A9ao Direta de

Inconstitucionalidade-a remedy to contest the constitutionality of norms in Brazil.

However, according to the Brazilian Law, the A9ao Direta de Inconstitutcionalidade shall be used to verify and control the constitutionality of the general normative order. 161 Therefore, the Brazilian Federal Supreme Court has decided that A9ao

Direta de Inconstitucionalidade is not an adequate legal remedy to discuss the lack of constitutionality of the Portaria Ministerial-or the Presidential Decree because "those

156 Supremo Tribunal Federal [STF], Mandado de Segurarn;:a n. 20.575-0/DF, Relator: Min. Aldir Passarinho, 36, D.J. 21.11.86, STFJ & Supremo Tribunal Federal [STF], Mandado de Seguranc;a n. 20.515-6/DF, 46, Relator: Min. Djaci Falcao, D.J.U. 22.08.86. 157 Lei Mandado de Seguranc;a No. 1533, de 31 de dezembro de 1951, D.O.U 31.12.1951. 158 See supra Chapter IV. 159 See supra Chapter IV, e and infra Chapter VI, c. 160 In August 2008 the Supreme Court started the hearing for two important cases on indigenous land rights: Raposa Serra do Sol and Caramuru Paraguasu indigenous lands. See supra Chapter IV, c. 161 Constituic;ao da Republica Federativa do Brasil de 1988 [CF88], art. 102, I, a & Lei No. 9868 de 10 de novembro de 1999, D.O.U 11.11.1999. are substantially administrative acts and not a general normative act, that could be subject to the constitutionality control through the A<;:ifo Direta de lnconstitucionalidade". 162

Arao civil ordinaria

The A<;:iio Civil Ordinaria is a common legal action for civil cases. Regarding indigenous peoples land rights cases, this action is usually proposed after the injunction to contest and bar the enjoyment of rights by indigenous peoples. In this case, the suit is used to seek the invalidation of the demarcation of indigenous lands.

But it is also a means to request the eviction of non-indigenous people consequential to the administrative demarcation. Because of the Brazilian judiciary's slowness, an

A<;:iio Civil Ordinaria may last for a number of years before it reaches a final decision, and decades for cases involving indigenous peoples' rights. 163

c. Brazilian Federal Supreme Court recent findings Besides the jurisprudence regarding the limited or inadequate use of Mandado de Seguran<;:a injunction and A<;:iio direta de Jnconstitucionalidade to contest indigenous land rights, the Supreme Court has recently issued other important procedural decisions pointing out that, from a strictly objective legal point of view, indigenous peoples right to lands is protected under the Constitution. However,

Supreme Court's recent findings have not yet touched upon the core issue of the recognition of indigenous lands in Brazil. This fact illustrates the difficulties of finding a consistent jurisprudence on similar cases implementing constitutional law for indigenous land rights' cases. It also demonstrates the weight of economic social

162 See Supremo Tribunal Federal [STF], ADI 643, D.J. 03.04.92; Supremo Tribunal Federal [STF], ADI 769, D.J. 08.04.94; Supremo Tribunal Federal [STF], ADI 842, D.J. 14.05.93; & Supremo Tribunal Federal [STF], ADI 3335/DF, D.J. 22.11.2004. 163 For instance Patax6 ha ha hae case, STF- ACO 312/BA (since 1984) & Terra Jndigena Nonoai case, STF -ACO 442/RS (since 1986). and political factors, from the perspective of the dominant sector of the society, in the application of the law in Brazil.

Can pending legal actions paralyze the administrative procedure of demarcation? In 2007, after more than 13 years, a decision was finally delivered by the

Brazilian Federal Supreme Court on a court injunction filed against the Presidential ratification of the Jacare de Sao Domingos indigenous land's demarcation. 164 The case was subject to a long and controversial discussion among Supreme Court

Justices on whether or not a presidential ratification of an indigenous land's demarcation would be valid in face of pending suits.

Among other arguments, Justice Sepulveda Pertence recalled the similarity of the debate on the ratification of indigenous lands and the established precedents regarding disappropriation of lands for agrarian reform. He highlighted the fact that a pending legal action cannot be sufficient to stop the administrative procedures in either case Justice Pertence compared disappropriation for agrarian reform and the demarcation of indigenous lands to remind the Justices that the administrative acts

(disappropriation or demarcation) did not prevent the judiciary from analyzing compensation rights due, and therefore the administrative act was not harming the right to judicial redress of any of the parties. Moreover, Justice Pertence foresaw the end of the constitutional provision of indigenous lands' administrative demarcation if any subsequent legal action would have the power to interrupt the procedure. 165

Justices Cezar Peluso and Carlos Velloso disagreed with Justice Pertence. The diverging Justices argued, among other things, that while disappropriation for agrarian reform was a form of property acquisition, the demarcation of indigenous lands was

164 Supremo Tribunal Federal [STF], Mandado de Seguranr,;a n. 21.896-7/PB, Relator: Min. Joaquim Barbosa, 220-229, D.J. 13.06.2008. 165 Supremo Tribunal Federal [STF], Mandado de Seguranr,;a n. 21.896-7 /PB, Relator: Min. Joaquim Barbosa, 220-229, D.J. 13.06.2008. merely an administrative procedure. But the diverging position was in the minority in this case. The final outcome in the Jacare de Sao Domingos case was that the administrative procedure of demarcation should continue, even in the face of pending legal actions. This Supreme Court decision allowed administrative acts to take place in order to implement the constitutional provision of Article 231, without further delays due to pending challenges in the judiciary.

Can pending demarcation exclude the possibility for legal actions? The opposite case was also posed to the Federal Supreme Court: to define whether or not the filing of legal actions could be limited by the pending administrative demarcation of indigenous lands. The Brazilian Supreme Court issued its opinion, on a preliminary analysis (questao de ordem) in the Patax6 ha ha hae case. The Supreme Court remarkably invoked the constitutional provision of article

231 affirming that the administrative demarcation of indigenous land does not create a right but simply declares a preexisting right. 166 By doing so, in 2006 the Supreme

Court's preliminary decision regarding the indigenous land Caramuru Paraguasu of the Patax6 ha ha hae indigenous people concluded that the lack of indigenous lands' demarcation did not prevent the suits (A9ao Declarat6ria) proposed by FUNAI and the Union to declare void the titles conferred by the Bahia state over indigenous lands from being processed.

Also in that suit, Supreme Court Justices affirmed the possibility for the

Supreme Court to examine whether or not the area in dispute is an indigenous land, whenever administrative demarcation has not taken place. 167 Supreme Court Justice

Nelso Jobim proposed a test for the judiciary to find out if the area is an indigenous

166 Supremo Tribunal Federal [STF], Questao de Ordem na Ai;ao Civil Ordinaria n. 312-1/BA, Relator: Min. Nelson Jobim, 147, D.J. 27.10.2006. 167 Supremo Tribunal Federal [STF], Questao de Ordem na Ai;ao Civil Ordinaria n. 312-1/BA, Relator: Min. Nelson Jobim, 147, DJ. 27.10.2006. land according to Article 231 of the Constitution. The test searches for the elements that compose the concept of indigenous lands: 1) permanent inhabitants, 2) lands used for productive activities, 3) lands indispensable for the preservation of the environmental resources and necessary for the well being of indigenous peoples, and

4) lands necessary to the physical and cultural reproduction of indigenous peoples according to their customs and traditions. 168 Justice Jobim argued that those elements are objective to (I.e. verifiable by) by the Court. Therefore, he defined the scope of each of the elements and represented them as imaginary concentric circles.169

To exclude the possibility of an eventual judiciary intrusion into Executive activities, Justice Correa considered that the Union should find the necessary legal security in the judiciary upon demarcation of lands. That measure was meant to avoid continuing with the administrative activities when there is a possibility of error over a su b JU. d"rce area. 170 However, the practical effects in the cases, and the controversy over who has the final say on the definition of what is an indigenous land remain unclear.

The two first votes on the merits of the case at the Supreme Court: 2008.

In September 2008 the Caramuru Praguasu main suit171 began to be heard before the Federal Supreme Court. The first opinion was delivered by Justice Eros

168 Constitui9ao da Republica Federativa do Brasil de 1988 [CF88], art.231. 169 According to Justice Jobim concentric circles test: Each circle would be part and condition to the verification of the following circle, and numbered according to the above list. Circle n.2 represents (lands used for the productive activities) and will necessary include circle n.l (permanently inhabited). Circle n.2 can expand within the incorporation of elements of circles n. 3 and 4. Perhaps the proposed test will offer procedures to identify indigenous lands, and it will certainly actively engage the judges into the discussion of the merits of the cases. Supremo Tribunal Federal [STF], Questao de Ordem na A9ao Civil Ordinaria n. 312-1/BA, Relator: Min. Nelson Jobim, 147, D.J. 27.10.2006. 170 Supremo Tribunal Federal [STF], Questao de Ordem na A9ao Civil Ordinaria n. 312-1/BA, Relator: Min. Nelson Jobim, 145, D.J. 27.10.2006. 171 Supremo Tribunal Federal [STF], A9ao Civil Ordinaria n. 312-1/BA, Relator: Min. Eros Grau, Voto do Relator 24 September 2008. Grau and favored the indigenous peoples. No final decision was reached because, as in the Raposa Serra do Sol case, 172 Justice Carlos Alberto Menezes Direito asked for further examination of the court files. In both cases, the hearing was temporarily suspended and ten other Justices will present their opinions in the following months.

It is expected that the final Supreme Court decisions in Raposa Serra do Sol and

Patax6 ha ha hae will signal to the future of indigenous lands demarcation in Brazil.

The first opinion in Patax6 ha ha hae reaffirmed indigenous peoples' right to lands as recognized in the Constitution. According to Justice Grau, because those lands have always been traditional to the Patax6 ha ha hae people-and property of the Union-the titles conferred to third private parties by the state of Bahia were void.

The Justice's vote recognized the total area identified (but not yet demarcated) by

FUNAI as traditional lands to the Patax6 ha ha hae people. Moreover, Justice Grau found that the recognition of those lands by the Court was due, regardless of the completion of the demarcation procedure by the administration.

The Patax6 ha ha hae hearing took place a few weeks after the first hearing of

Raposa Serra do Sol, when the national attention turned to indigenous land rights issues in the Brazilian Federal Supreme Court. In August 2008, the Federal Supreme

Court initiated the hearing on the Raposa Serra do Sol case. 173 In that suit, Justice

Carlos Ayres Britto (Ministro Relator) delivered the first vote and also presented his position for the acceptance of indigenous peoples' rights and the administrative demarcation. He found that the expert report, which based the demarcation of the area was valid, and that the Ministry act of demarcation followed all the legal

172 See supra Chapter IV, e. 173 Supremo Tribunal Federal [STF], Pet. 3388, Relator: Min. Carlos Britto, 27.08.2008, Voto do Ministro Relator Carlos Britto, available at: http://www.stf.jus.br/portaVprocesso/verProcessoAndamento.asp. requirements and was also valid. Moreover, Justice Britto advocated for an open minded and advanced humanist interpretation of the-already advanced-1988

Federal Constitution.

According to Justice Britto' s opm10n, only the contiguous model of demarcation (large areas necessary for the physical and cultural survival and continuation of indigenous peoples) is consistent with the constitutional provisions of indigenous lands demarcation, for each ethnic group. 174 Responding to some common and discriminatory arguments against the demarcation of indigenous lands in

Brazil, Justice Britto advocated for the need for reparation for the historical violation of indigenous peoples rights. He highlighted that the value of the economic production of the lands (by illegal occupants) does not disturb indigenous peoples originary right to lands. He also affirmed that indigenous lands are perfectly compatible with the border areas of the country because the Constitution did not make any restriction to the demarcation of indigenous lands in such areas.

Justice Britto's opinion was positive for indigenous peoples because it expressed the position in favour of the maintenance of the contiguous demarcation of

Raposa Serra do Sol. For the first time a Supreme Court decision considered indigenous lands in the context of constitutional and fundamental rights at the Federal

Supreme Court, despite the interests of the powerful elite. However, if on one hand the Justice interpreted the Constitution in the light of humanist values to confirm respect for cultural diversity; on the other hand, he found that international documents and organizations were unnecessary in Brazil. The Justice's opinion followed the mistaken assumption that international human rights law cannot be harmonized with

174 Constituic;:ao da Republica Federativa do Brasil de 1988 [CF88], art. 231. national law and the sovereignty of the State. 175

Justice Britto made specific reference to the UN Declaration on the Rights of

Indigenous Peoples. He criticized the fact that Brazil voted in favour of the

Declaration, based on an incorrect reading of the right to self-determination. 176 He considered that the recognition of indigenous peoples' right to self-determination would immediately imply secession from the State as it would recognize indigenous governance over their territories. In fact, the right to self-determination today means the right indigenous peoples have to control and administrate their own lands according to their own values and cultures but within the political framework of the

State.

The Justice stated, "the Brazilian Indians did not need the Declaration to have their individual and collective dignity legally stated, because the Federal Constitution protects them in a manner so peculiar and to the right extent."177 Therefore, despite being mostly positive in terms of securing indigenous peoples right to lands, the

Justice's opinion on Raposa Serra do Sol confirmed the court's reluctance of address indigenous issues as an issue of human rights. International human rights instruments are not yet considered by predominant legal thought as constituting a system comparable and complementary to the domestic order, and as formally recognized in the 1988 Constitution.178

It 1s significant that some references and concerns regarding the use of

175 See supra Chapter III, e and Chapter VI, a. 176 ERIKA y AMADA, A DECLARAC,::AO DA ONU SOBRE DIREITOS DOS Povos lNDiGENAS E A SOBERANIA BRASILEIRA, CONECTA SUR (2008), available at: http://www.conectasur.org/index.php?page=noticia¬_id= 13 58. 177 Supremo Tribunal Federal [STF], Pet. 3388, Relator: Min. Carlos Britto, §69 (27.08.2008), Voto do Ministro Relator Carlos Britto, available at: http://www.s tf.jus. br/portal/processo/verProcessoAndamen to .asp. 178 Constituic;:ao da Republica Federativa do Brasil de 1988 [CF88], art. 5, §§ 2 and 3. international human rights instruments in the context of indigenous peoples quest for land rights were made before the Federal Supreme Court. On the positive side, it is an invitation to open the debate and an opportunity to improve the use of such instruments.

The cases still pending at the Federal Supreme Court will benefit from this first effort by indigenous organizations and even the Federal Government to clarify the use and scope of such international human rights instruments at the Federal

Supreme Court. Possibly, that effort will contribute to the development of a legal theory for the harmonization between Brazilian law and international human rights law. Indigenous policy in Brazil has already shown concern to ensure domestic laws align with international human rights standards, following implementation of the demarcation of indigenous lands as contiguous areas. Now, enforcement of indigenous peoples rights and confirmation of that model of demarcation of indigenous lands need to be established at the judiciary level.

Indigenous lands NandeRu Marangatu (Mato Grosso do Sul) and Raposa

Serra do Sol (Roraima) were the chosen cases pending at the Federal Supreme Court to illustrate the present dissertation. In both cases, indigenous peoples have had their lands demarcated and ratified after a period of struggle. Also in both cases, injunction decisions by the Federal Supreme Court have interfered with the enjoyment of indigenous peoples' right to lands, and the special interests of ranchers and state governments play a special role in the suits. However, there are fundamental differences: between the history and structure of demarcation in the different regions; on the attention and priority given to the suits; and on the impact that the State policy had on the physical survival and political organization of indigenous peoples. d. NandeRu Marangatu: indigenous people outside the demarcated land. While Raposa Serra do Sol and Patax6 ha ha hae cases are being heard at the

Supreme Court at present, other paradigmatic cases remain pending. Their status continues to affect the ability of indigenous peoples to enjoy their rights. For instance, the Guarani-Kaiowa people from Mato Grosso do Sul remain excluded from substantial parcels of their demarcated and ratified lands, N andeRu Marangatu, due to judicial challenges against that demarcation and the lack of a final decision at the

Federal Supreme Court.

In NandeRu Marangatu, due to the intrusion of non-indigenous peoples and the installation of large monoculture farms, over one thousand Guarani-Kaiowa people had been confined to 26 hectares of lands. The Guarani-Kaiowa people in the region of Dourados no longer hunt or fish due to the new conditions of the waters polluted by chemicals for agriculture.

The intense discriminatory contact with the urban society, together with the land losses and imposed changes to their ways of life, affected their forms of social organization and became a threat to their survival. 179 And yet, the Guarani-Kaiowa people remained in the region, showing that despite the precarious living conditions they face, the Guarani-Kaiowa people never considered themselves apart from their sacred sites and traditional lands. For them, more than an economic asset, indigenous lands are part of their cultural identity-and where the meaning for their lives rests with the memories of their ancestors. 180

179 For instance, many of the young indigenous people work in the sugar cane plantation under sub-human conditions because there are no other economically viable alternatives. 180 Despite the fences and private security of the ranchers, the Guarani-Kaiowa people would walk through the land as part of their culture of contemplation and being. Aldeamento policy and the 1988 Constitution

Before 1988 and the current Constitution, an old policy called aldeamento 181 combined with the assimilationist mentality of the country facilitated the "liberation" of lands for the establishment of farms and the growth of the agricultural industry in

Mato Grosso do Sul. According to aldeamento policy indigenous peoples were entitled to only small parcels of lands (villages), as they would in time be integrated into the major society. Indigenous peoples were confined to small pieces of lands, insufficient for their cultural and physical survival as indigenous peoples. Indigenous villages in Mato Grosso do Sul were surrounded by ranchers, who became more aggressive against indigenous peoples while their economic interests over the lands mcrease.· d 182

The 1988 Constitution established stronger constitutional protection of indigenous peoples' lands to guarantee the physical and cultural survival and development of indigenous peoples. 183 Nonetheless in Mato Grosso do Sul, because indigenous lands were already demarcated-and largely in the old model of aldeamento--illegal occupation by ranchers and agro-industries remained just as they were, or encroached into more indigenous territories. Guarani-Kaiowa people were considered marginalized in their own lands. 184 Starvation, malnutrition, prostitution, alcohol addiction, violence, and suicide became new challenges for the Guarani­

Kaiowa people in the Twentieth Century and the land issue has been central to all of

181 Until 1988, indigenous lands' policy was based on the belief that, in time, indigenous people would integrate the major society and leave behind their traditional way of life, uses and customs. According to the 'aledeamento' policy, indigenous people were agglomerated in small and punctual areas (reservas), enough for them to have a house and develop agriculture according to the dominant society view. 182 Since colonial time, the Guarani-Kaiowa people have been losing traditional land to new occupiers or invader, mostly ranchers in the last two decades. AMNESTY INT'L, Brazil: Safety and Survival of Indigenous Peoples at Risk., AI press release, 30 March 2005, available at: http://web.amnesty.org/library/index/engamrl 90092005 183 See supra Chapter Ill, d. 184 The Guarani-Kaiowa people name themselves as 'jungle people'. those economic, social and cultural problems.185

The constitutional recognition of indigenous lands as contiguous areas necessary for the physical and cultural survival of indigenous peoples is hardly applied to already demarcated lands in the south. Consequently, new demarcations of indigenous lands in Mato Grosso do Sul have faced more obstacles than demarcations in the Amazon region. The case ofNandeRu Marangatu demarcation is illustrative of the particular situation of indigenous peoples from that area.

Demarcation ofNandeRu Marangatu indigenous land

The administrative procedure of demarcation of the NandeRu Marangatu indigenous land started in 1999. On 30 October 2004, Ministry of Justice Portaria n.1456 was issued to declare the Guarani-Kaiowa people's permanent possession of

9300 hectares identified as indigenous lands N andeRu Marangatu. The administrative act determined that physical demarcation took place awaiting subsequent ratification by the President. Notwithstanding administrative demarcation, the Guarani-Kaiowa people were not able to reoccupy the area.

Against the demarcation of that land, possessory claims were filed at the federal court (Justir;a Federal) to request the legal annulment of that administrative act. A few ranchers claimed to be owners of those lands and alleged that: 1) the identified area was not indigenous lands; 2) demarcation was initiated by FUNAI without their prior notification; and 3) Decreto 1775/96, which defines the procedure for demarcation, was unconstitutional. 186 The petitioners included an injunction

I 85 The report addresses the link between the failure of successive Brazilian governments to resolve the problems of indigenous land rights and violence committed against indigenous leaders. AMNESTY INT'L, Foreigners in our own country: Indigenous Peoples of Brazil, AI Index AMR 19/002/2005, 30 March 2005. Also available at: http://archive.amnesty.org/library/Index/EN GAMR 190022005?open&of=EN G-BRA. 186 1-J.F. Ponta Pora/MS, Ai;iio Possess6ria n. 2001.60.02.001924-8/MS, 19.09.2001 (Brazil). request to suspend the effects of the administrative demarcation within the area that they claimed to have property. They also requested the immediate removal of indigenous people from the areas that exceeded the 26 hectares of which they were previously occupying. 187 The request was promptly accepted at the federal court.

In defense of indigenous peoples and the Union, the Federal Indian Body

FUNAI and the Public Defendants Office (Ministerio Publico Federal) argued that those lands are traditional to the indigenous people-as found in anthropological studies-and that the demarcation procedure took place in accordance with the law.

The injunction was then overturned in favor of indigenous peoples and the federal government by a Federal Tribunal (Tribunal Regional Federal) decision. 188 That tribunal also determined a deadline for the Executive to solve the conflict of whether or not those were indigenous lands. Before that deadline was over, the President signed the Decree ratifying the demarcation of the NandeRu Marangatu indigenous land, according to Portaria 1456. 189

Ideally, the presidential ratification would have concluded the demarcation procedure and defined the limits ofNandeRu Marangatu indigenous land. Indigenous people would then have been able to reoccupy their whole territory, once the State resettled and paid compensation to the bona fide occupants. However, against that presidential decree, a court injunction was filed at the Federal Supreme Court, by one of the ranchers who occupied the area. 190 In that suit the petitioner argued that part of

187 In 2004, given the official physical demarcation of the land by FUNAI, the Guarani-Kaiowa had re-occupied 400 hectares of those 9,300 hectares recognized to be indigenous lands NandeRu Marangatu. 188 TRF-3, Proc. n. 2005.03.00.006650-0 processo original A9ao Possess6ria n. 2001.60.02.001924-8/MS, Relatora: Des. Fed. Anna Maria Pimentel 02.03.2005, RTRF 09.03.2005 (Brazil). 189 Decreto Presidencial de 28 de mar90 de 2005, D.O.U. 29.03.2005 . 190 Supremo Tribunal Federal [STF], Medida Cautelar em Mandado de Seguran9a 25.463-7/DF, Relator: Min. Cezar Peluso, Decisao proferida pelo Presidente Min. Nelson Jobim, 21.07.2005, D.J. 22.07.2005. the area identified by FUNAI as was not indigenous land smce he had legally acquired the title of those lands from Mato Grosso state authority a century ago. The rancher requested that the presidential decree have its effects suspended by the

Supreme Court because of allegedly urgent and irreparable harms against his property that could arise from the social tension in the area.

In July 2005, on the next day of the rancher's injunction request, the Chief

Justice of the Federal Supreme Court Nelson Jobim191 decided, in a preliminary stage, to suspend the presidential decree regarding NandeRu Marangatu indigenous land.

The Justice understood that the presidential ratification of lands' demarcation couldn't have happened because there were pending claims in the judiciary regarding the legality of the demarcation. 192 The Justice also manifested an understanding of

"imminent danger of occupation by indigenous peoples before a final decision on the legality of the demarcation procedure".

In a domino effect, because of that Supreme Court's preliminary decision from

July 2005, the Federal Tribunal also reviewed its previous ruling in favor of indigenous peoples. The President of the Federal Tribunal 3rd Region (Tribunal

Regional Federal da Terceira Regiao) re-established the effects of that previous injunction. The Guarani-Kaiowa people were confined by judicial order to the initial

26 hectares-instead of their 9300 hectares of lands that had already been identified. 193 The increasing environment of conflict between the indigenous peoples,

191 Nelson Jobim is the current Ministry of Defense, the Executive body responsible for the Army Force. 192 The Chief Justice made reference to the Jacare de Sao Domingos, although pending final decision. In the Jacare de Sao Domingos case, the petitioners argued that the Presidential Decree ratifying the demarcation of the indigenous land in Paraiba violated the principle of non-removal of the judicial control over administrative acts. Petitioners alleged that the Presidential act could not have taken place before the end of the existent judicial process. Supremo Tribunal Federal [STF], Mandado de Seguran9a n. 21.896-7/PB, Relator: Min. Joaquim Barbosa, 220-229, D.J. 13.06.2008. 193 TRF-3, Proc. n. 2005.03.00.006650-0 processo original A9ao Possess6ria n. 2001.60.02.001924-8/MS, Relatora: Des. Fed. Anna Maria Pimentel 02.03.2005, decision suspended third parties, the fact that the area was located in an area along the Paraguay border along with the Federal Supreme Court decision were factors that resulted in the review against indigenous peoples by the Federal Tribunal.

In December 2005, FUNAI filed a redress action (Suspensiio Liminar) before the Federal Supreme Court. FUNAI requested the suspension of the injunction until the final judgment of NandeRu Marangatu by the Federal Supreme Court. FUNAI alleged that the disputed land was of traditional indigenous occupation; that those preliminary decisions were not legitimate; that the intent to diminish rights of indigenous peoples was persistent; and that the decision was bringing harm to the public health, order and security of the region.

The Federal Supreme Court denied FUNAI's request affirming that "to accept the request of FUNAI would imply keeping the indigenous community in an area whose demarcation is under judicial examination. The permanence of this community in the disputed area, as stressed by the President of the Federal Tribunal, would lead to the reversed periculum in mora. The Justice then concluded that the most harmful effects to the public order would arise from the presence of indigenous individuals in the area, and that parties should wait for the final decision on the merits of the case

MS 25.463. 194

Prompted by those decisions, on the 16th December 2005, 96 Guarani-Kaiowa families received the judicial order of eviction from the portion of area they had reoccupied since demarcation. Quickly, in January 2006, 700 indigenous people were removed from that parcel of land, under a brutal operation by the federal police and ranchers. Ejected from their lands, indigenous families were forced to live by the due to STF decision in 21 July 2005, 02.12.2005, TRFJ 03.12.2005 (Brazil). 194 Federal Supreme Court case discussing the legality of the presidential decree that ratified the demarcation of NandeRu marangatu indigenous land. roads-the nearest place to their crops.

Because of the public commotion caused in that removal operation, it was expected that the case was still going to be considered by the Supreme Court in 2006.

However, to date, the final judgment is still pending in the Supreme Court. Since

2007, the Guarani-Kaiowa people from NandeRu Marangatu have occupied 101 of the total 9 ,31 7 hectares of the demarcated land, due to an agreement between the

Federal Governments and farmers in December 2006. Despite this positive measure, indigenous people fear that the agreement will compromise their rights that are pending confirmation by the Supreme Court. However, they are left with no other option while waiting for a final decision on the suit.

e. Raposa Serra do Sol: reaffirmation or denial of rights? Raposa Serra do Sol (RSS) is the traditional land of 19,000 members of the

Ingaric6, Wapichana, Patamona, Macuxi, and Taurepang indigenous peoples. The land was identified and demarcated as a contiguous area consisting of 1,678,800 hectares. 195 Raposa Serra do Sol land includes boarder areas of Brazil with Venezuela and Guiana. Over thirty years of continuing struggle for official recognition and effective protection of the indigenous land, accompanied by a number of legal obstacles, has turned Raposa Serra do Sol into an important symbol of the movement for indigenous rights in Brazil. The international initiatives of the indigenous organization Conselho Indigena de Roraima has also served as an example to other indigenous peoples of how to access international human rights mechanisms.

The administrative demarcation of Raposa Serra do Sol land was concluded in

2005 and has been subject to intense political pressures and has been threatened to be overturned by numerous judicial challenges. The Divergent interests over Raposa-

195 lNSTITUTO SOCIOAMBIENTAL, MAPA DA AMAZONIA BRASILEIRA 2004, ISA, 2004. Serra do Sol indigenous land have been identified since the installation of gold and other mineral extraction operations by the end of the nineteenth century, and later included the use and exploitation of other natural resources as well as the development of cattle ranching and monoculture farms. 196 The growth of mining activities by individuals garimpeiros without effective control, since the end of the

1980' s, increased the intensity of conflicts in the region. 197 In the 1990' s the installation of ranchers in the area resulted in new conflicts against indigenous peoples, now with support by local authorities.

Together with the mining and agro-business industries, local authorities also supported the establishment of state development projects-like the hydroelectric plant in the Cotingo River-in Raposa Serra do Sol. The government of Roraima is today known for its opposition to the demarcation of indigenous land; for promoting illegal settlements; and for investing in infrastructure projects or mining centers within or near indigenous land. 198 In addition, indigenous peoples from Raposa Serra do Sol obtained no enforcement of rights at the Federal Court (Justi<;a Federal de

Roraima) level. Altogether, these interests have been part of a strategy to adversely allow occupation of the Raposa Serra do Sol area by non-indigenous people.

The intent of non-indigenous occupation was to avoid the implementation of

196 According to Serpro, out of the 193 farms located in the indigenous area, only 8 of them, presented titles to the lands, provided by local authorities. However, according to the constitutional text, state governments cannot conceive titles within indigenous land because it is a matter of federal jurisdiction. 197 For instance, with the protection of the Yanomami area as indigenous land in early 1990' s, the "garimpeiros" migrated from there to the Brazilian frontiers with the Guiana and then to the Raposa-Serra do Sol area, largely supported by the local authorities. Raposa indigenous land was clearly more vulnerable because, at that time, it was not yet identified, although claimed as an indigenous area. Throughout the Twentieth century, the installation of agro-business increased, resulting in conflicts, such as those between rice farmers and indigenous peoples in Raposa Serra do Sol area throughout the 1990s. 198 The Roraima state government has also implemented a colonization strategy of installing new municipalities, even if economically unsustainable, in the indigenous land Raposa-Serra do Sol. Marcia Santilli, Facada na Raposa in Povos INDiGENAS NO BRASIL: 1996-2000, 297-303 (Instituto Socioambiental, Carlos Alberto Ricardo ed., 2000). the federal recognition of that contiguous area for indigenous peoples, and maintain the exploitation of economic activities developed in the area. Third-parties interested in remaining in the area were supported by local authorities alleging "social crises" in the federation unit due to the recognition of such large area as indigenous land. All these arguments were used to petition courts to reevaluate the area demarcated as indigenous land and culminated in a Federal Supreme Court case.

Demarcation ofRaposa Serra do Sol indigenous land

In 1993, more than 20 years since the demarcation procedure started, the indigenous area Raposa-Serra do Sol was identified and approved by the federal body for indigenous policy, the National Indian Foundation (FUNAI). 199 However, according to the demarcation procedure,200 the FUNAI declaratory act still depended upon the acknowledgment of the Ministry of Justice and upon ratification by the

President. Long delays created obstacles to this recognition, with a number of suits contesting the validity of the Ministerial act.

Arguments against demarcation based on questions of national security served as an excuse for the local authorities to favor interests other than those of indigenous peoples'. In the meantime, municipalities were created within the indigenous land to encourage non-indigenous migration to the area.201 Ranchers also enlarged the areas that they had invaded, as if no law or enforcement authorities would dare to impede their actions. New suits were brought to the federal court against the demarcation of the indigenous land Raposa Serra do Sol by those same ranchers, which impeded the

199 The administrative procedure of recognition of the indigenous land Raposa Serra do Sol started in 1977 with the Procedure BSB/3233/77. See detailed chronology of the case by Conselho Indigena de Roraima available at: http://www.cir.org.br/raposa_legal.php. 200 See supra Chapter Ill, d. 201 Pacaraima, Uiramutii and Normandia municipalities. See detailed information about the creation of Uiramuta municipality in Raposa Serra do Sol lands by Conselho Indigena de Roraima available at: http://www.cir.org.br/raposa_geral.php. progress of the administrative demarcation of the indigenous land.

In April 2005, the Ministry of Justice issued a new Ministerial act, Portaria n.534, establishing the new but similar limits to Raposa Serra do Sol indigenous land demarcation. The Supreme Court then dismissed all Raposa Serra do Sol pending cases202 as the contested Portaria 820 was no longer in force. This represented an attempt to solve those pending suits through a political maneuver instead of addressing these issues in the Federal Supreme Court on the basis of indigenous peoples' constitutional rights. In any case, the Supreme Court dismissal decision allowed the 2005 presidential ratification of indigenous land Raposa Serra do Sol to proceed.203 However, since then, new suits against the demarcation of that indigenous land and against the administrative procedures of demarcation-including the 2005 presidential act of ratification-have been filed, followed by intense threats and violence against the indigenous communities.

In Raposa Serra do Sol, demarcation alone has not been enough to ensure the security of the rights of indigenous peoples to their lands. Three years since the ratification of the land's demarcation, the majority of non-indigenous occupants have been resettled, pursuant to the Presidential Decree. A small number of occupants­ among them a handful of violent rice growers-remain on the land. The unbalanced powers of the rural elite were believed to be enough to overturn the demarcation in a final decision at the Federal Supreme Court. Illegal occupants refused to leave the land based on the argument that the ongoing judicial processes before the Federal

Supreme Court may overturn the demarcation of Raposa Serra do Sol indigenous land

202 The suits that were initially filed at the federal court of Roraima were later submitted to the Federal Supreme Court due to the federation conflict installed between the Union and Roraima. 203 Portaria No. 534/05, D.O. 13.04.2005 and Decreto Presidencial de 15 de Abril 2005, D.O 18.04.2005, ratifying the demarcation of the indigenous land Raposa Serra do Sol, comprehending 1.747.464 hectares. and allow them to stay.204

The continued presence of powerful and anti-indigenous occupants have led to environmental degradation and increased violence in the area. As a result, indigenous peoples have faced numerous human rights violations such as the isolation of communities by the burning of bridges; attacks against indigenous members properties and institutions, including hospitals and schools; physical and emotional threats; and beatings and shootings of indigenous peoples. 205 In 2008, the Federal

Police initiated an operation to remove the non-indigenous occupants from the area.

In May 2008 10 indigenous people were shot by employees of a rice grower installed in the land.206 The removal operation was suspended by a court's preliminary decision that attended the state of Roraima and rice growers' request.207

The suit in the Federal Supreme Court

Pending actions challenging the constitutionality of the Raposa Serra do Sol demarcation were filed at the federal level and directed to the Federal Supreme Court in 2006.208 Those suits along with petitions filed directly at the Federal Supreme

Court were the alleged reasons for delaying the presidential ratification of the

204 For detailed chronology See INSTITUTO SOCIOAMBIENTAL, CRONOLOGIA RAPOSA SERRA DO SOL (2008), available at: http://www.socioambiental.org/inst/esp/raposa/?q=cronologia&page=l. 205 Submission to the UN Racial Discrimination Committee (CERD) for Procedures to Avoid Immediate and Irreparable Harm to the Indigenous Peoples of Raposa Serra Do Sol, and Follow-Up on Brazil's State Party Report (CERD/C/431/Add.8) submitted by the Conselho Indigena de Roraima, the Indigenous Peoples Law and Policy Program at the University of Arizona, The Rainforest Foundation US, and the Forest Peoples Programme (22 June 2006). Also available at: http://www.law.arizona.edu/depts/iplp/advocacy!raposa/documents/CERDpetitionFINALl.pdf See also CONSELHO INDiGENA DE RORAIMA, 10.500 iNDIOS ESTAO ISOLADOS EM RAPOSA SERRA DO SOL, 03 June 2008, also available at: http://www.cir.org.br/noticias.php?id=522. 206 Images from the attacks against indigenous peoples. Conselho Indigena de Roraima, 09 May 2008, available at: http://www.cir.org.br/noticias.php?id=515. 207 Supremo Tribunal Federal [STF] AC 2009/08, Relator: Min. Carlos Britto, liminar concedida (injunction request accepted), 09 April 2008, STF Andamento http://www.stf.jus.br/portal/processo/verProcessoAndamento.asp. 208 There are 34 claims in the Federal Supreme Court concerning the demarcation of Raposa Serra do Sol indigenous land. The Supreme Court is deciding the case under the Petition 3388. Supremo Tribunal Federal [STF], Pet. 3388, Relator: Min. Carlos Britto, 27.08.2008, Voto do Ministro Relator Carlos Britto, http://www.stf.jus.br/portal/processo/verProcessoAndamento.asp. administrative demarcation of that land up to 2005, although according to law the administrative procedure can be finalized despite of pending suits. Frozen in a judicial limbo, the federal protection of indigenous peoples' lands, the Raposa Serra do Sol faded. Although there were legal grounds for a judicial final decision, there was a political maneuver-issuing a new Portaria of demarcation-that helped the judiciary to find a way to allow the demarcation to be finalized. After the 2005 demarcation and ratification of Raposa Serra do Sol as indigenous land, the issue became one of enforcing indigenous peoples rights in the face of third-party interests and rights.

In March 2008, hundreds of Federal Police were sent to Roraima in order to remove the remaining non-indigenous occupants that refused to leave. Some of the occupants had received compensation but still remained in the area. The Federal

Government seemed to be engaged in the removal operation 'as long as there is no contrary decision by the Supreme Court' .209 And as expected, on 09 April 2008, the

Federal Supreme Court ordered, on a preliminary basis, the suspension of the Federal government operations. attend' mg th e Rora1ma ' state governments, request. 210

Worryingly, Justices at the Supreme Court have conveyed to the public media the possibility of reviewing the demarcation of RSS as a contiguous area, and suggested that the reduction of the area may be considered to appease the political tensions. Such a reduction would be an enormous step backwards for the peoples of

Raposa Serra do Sol and for all indigenous peoples in Brazil because it is in complete disregard of the constitution. National and international attention has been drawn to

209 Affirmation from Federal Police Chief in meeting with indigenous leaders in Boa Vista, just before the operation Upatakon III. Available at: http://www.cir.org.br/noticias.php?id=477. 210 Supremo Tribunal Federal [STF] AC 2009/08, Relator: Min. Carlos Britto, liminar concedida (injunction request accepted), 09 April 2008, STF An dam en to http://www.stf.ius.br/portal/processo/verProcessoAndamento.asp the case211 and the Supreme Court has committed to deliver a final decision to bring an end to the 34 pending legal actions against the demarcation of Raposa Serra do Sol.

In August 2008 the hearing was initiated with a favorable opinion to indigenous peoples rights, but then suspended until December 2008.

International repercussion

Misleading information on the Raposa Serra do Sol case has fuelled discriminatory discussions at the local and national political level against indigenous peoples, and has been encouraged by the media. Also, proposals for new statutes to limit indigenous peoples' constitutional rights and to resize indigenous lands have again gained support within the National Congress because Raposa Serra do Sol was not finally decided at the Supreme Court.

Although the first Supreme Court Justice's opinion in the case was in favor of the identified and demarcated contiguous area of Raposa Serra do Sol, there is a strong fear that the Federal Supreme Court as a whole (after the 11 votes) will not reaffirm the right to lands of Raposa Serra do Sol indigenous peoples as recognized in the Constitution. Indigenous peoples fear the potential for the demarcation procedures to be overturned, or the creation of exceptions to keep some degree of non-indigenous occupation within the demarcated indigenous lands.212 Such a result may be considered to be a violation by the State of its international human rights obligations.

Petition before the Inter-American Commission on Human Rights

In 1997 the Inter-American Commission on Human Rights, in its report on the

211 Anna Pata Anna Yan indigenous campaign in favor of Raposa Serra do Sol indigenous land, Conselho Indfgena de Roraima, June 2006, available at: http://www.cir.org.br/noticias.php?id=527. 212 Although deciding on a specific case, a final decision of the Supreme Court, in Raposa Serra do Sol, to interpret the Constitution in detriment of indigenous peoples will open a precedent to similar reduction ofrights in other indigenous lands. Human Rights situation m Brazil213, stressed that the delay and difficulties in recognizing the cultural integrity of the Makuxi people and their full ownership of their land-the Raposa Serra do Sol area-weakens traditional indigenous leadership and structure. 214 The Commission recommended that the Brazilian Government ratify the demarcation of the Raposa-Serra do Sol indigenous area, in order to protect the

Macuxi indigenous peoples and their culture. However, domestically the Federal

Government alleged that it could not advance the recognition of indigenous peoples' land rights over other local interests, with suits challenging the demarcation procedure were yet to be concluded.

By 2004, the situation of the indigenous peoples from Raposa Serra do Sol became critical on the ground. Waves of violence and discrimination peaked every time there was an announcement from the Federal Government regarding measures of protection of indigenous lands, followed by no effective administrative action or judicial security. Indigenous peoples suffered severe backlash from the local government and illegal occupants, without judicial protection of their rights consistent with the Federal Constitutional provision of Article 231.215

The failures of the State to protect indigenous peoples' cultural and physical integrity and to secure indigenous peoples' territorial rights, motivated an international complaint before the Inter-American Commission on Human Rights. 216

The Commission adopted precautionary measures on the case, recommending that the

213 Inter-Am. C.H.R., Report on the Situation of Human Rights in Brazil, OEA/Ser.L/V/II.97, Doc.29 rev.I, 29 September 1997, VI J( e) (1997) also available at: http://www.cidh.oas.org/countryrep/brazil-eng/index%20-%20brazil.htm. 214 Inter-Am. C.H.R., Report on the Situation of Human Rights in Brazil, OEA/Ser.L/V/II.97, Doc.29 rev.I, 29 September 1997, VI J(e) (1997) also available at: http://www.cidh.oas.org/countryrep/brazil-eng/index%20-%20brazil.htm. 215 See supra Chapter II. 216 Conselho Indigena de Roraima (CIR) and Rainforest Foundation-US co-filled a petition to the Inter-Am. C.H.R. regarding demarcation of the Raposa-Serra do Sol area. Raposa Serra do Sol v. Brazil, Petition 250-04 and Precautionary Measures 818-05, Inter-Am. C.H.R, Annual Report 2004,0EA/Ser.L/V /Il.122, Doc. 5 rev. I, Chapter 3 (2005). State protect the security of indigenous peoples' lives and respect their territories in

Raposa Serra do Sol.217

The Commission held a hearing on the case, in March 2007. Due to there being no significant improvement in the situation, the Commission reaffirmed the precautionary measures that had been issued to the State. The Commission considered that land security and cultural survival were interrelated issues and required the State to guarantee the rights to freely move and to live in the indigenous land, free from violence and aggression or violation of rights. The Commission further required an investigation and judicial measures to punish the violations of indigenous rights.218 The case is still being monitored, and the Commission receives reports on the situation from the State and the petitioners. Also, petitioners have requested that the Commission refer the case for a final decision and provisional measures to the Inter-American Court of Human Rights.219

UN Committee on the Elimination of Racial Discrimination

In June 2006, Conselho Indigena de Roraima, Rainforest Foundation-US,

Forest Peoples Program and the Indigenous Peoples Law and Policy Program of the

University of Arizona submitted a communication to the United Nations Committee on the Elimination of Racial Discrimination (CERD) regarding the situation of

217 Raposa Serra do Sol v. Brazil, Petition 250-04 and Precautionary Measures 818-05, Inter-Am. C.H.R, Annual Report 2004,0EA/Ser.L/V/II.122, Doc. 5 rev. 1, Chapter 3 (2005). Inter-Am. C.H.R., precautionary measures adopted in 2004 and reaffirmed in March 2007: 1. Protect the life and personal integrity of the members of the Ingaric6, Macuxi, Patamona, Taurepang and Wapichana indigenous peoples, respecting their cultural identity and their special relationship with their ancestral lands. 2. Assure that the beneficiaries can continue to live in their communities without any type of aggression, coercion or threat. 3. Abstain from illegally restricting the right of free circulation of the members of the Ingaric6, Macuxi, Patamona, Taurepang and Wapichana indigenous peoples. 4. Investigate seriously and exhaustively the facts which led to the request for precautionary measures. 21s Ibid. 219 Conselho Indigena de Roraima re-submmited request to the Inter-Am. C.H.R., Petition 250- 04 and Precautionary Measures 818-05 in June 2008. violence and discrimination faced by indigenous people in connection with violations of their rights to the indigenous land Raposa Serra do Sol.220 Since then, CERD has issued four letters to the Brazilian government (dated 18 August 2006; 14 March

2007; 24 August 2007, and 7 March 2008) requesting information about the situation of indigenous peoples from Raposa Serra do Sol and noting the CERD's concern about the situation of indigenous peoples in Raposa Serra do Sol.

The CERD invited Brazil to appear before it during its 71 st Session, in Geneva in 2007. After the dialog with the State representatives and having heard the updates from the indigenous organization, CERD expressed its extreme concern and recommended the complete removal of all remaining non-indigenous occupants and protection of the indigenous communities, as well as reparations for indigenous peoples for the illegal use of and environmental damage to their lands.221

Communications with the UN Special Rapporteur on the situation of human rights and fundamental freedoms ofIndigenous People

Indigenous peoples from Roraima have also been in contact with the office of the Special Rapporteur (SR) since 2005 regarding the situation in Raposa Serra do

Sol. The previous Special Rapporteur, Rodolfo Stavenhagen, issued two letters to the

Brazilian government regarding Raposa Serra do Sol in 2007. The Special Rapporteur on adequate housing has also made recommendations to the Brazilian Government regarding the situation of indigenous peoples' lands in Mato Grosso do Sul and

Raposa Serra do Sol in Roraima.

220 Submission to the UN Racial Discrimination Committee (CERD) for Procedures to Avoid Immediate and Irreparable Harm to the Indigenous Peoples of Raposa Serra Do Sol, and Follow-Up on Brazil's State Party Report (CERD/C/431/Add.8) submitted by the Conselho Indigena de Roraima, the Indigenous Peoples Law and Policy Program at the University of Arizona, The Rainforest Foundation US, and the Forest Peoples Programme (22 June 2006). Also available at: http://www. law .arizona.edu/depts/ iplp/advocacy /raposa/ documents/CERDpetitionFIN AL 1. pdf. 221 CERD letters to Brazil dated 07 March and 15 August 2008. Also available at: http://www.law.arizona.edu/depts/iplp/advocacy/raposa/cerd.cfm?page=advoc. In August 2008 the new Special Rapporteur, James Anaya, visited Brazil.

Special Rapporteur Anaya included a visit to the Raposa Serra do Sol area in his itinerary. In that same month, the Federal Supreme Court commenced the hearing of

Raposa Serra do Sol case.222 The need to harmonize State policy and law without having to reject international human rights instruments is the current challenge the

Brazilian judiciary is facing in the Raposa Serra do Sol case.

f. And now?

The 2007 Federal Supreme Court decision in the Jacare de SaoDomingos case allows administrative acts to take place in order to implement the constitutional provision of Article 231, instead of such acts being delayed while endless legal challenges are resolved. Nonetheless, no significant change has occurred in legal practice since that decision. Instead, inconsistencies have arisen in judicial decisions.

For instance, a Supreme Court preliminary decision in 2008 ordered the

Executive to withdraw the police force deployed to remove non-indigenous illegal occupants that remained in Raposa Serra do Sol, which had been demarcated as indigenous land.223 The violence provoked by the illegal occupants had certainly made this situation unstable. Yet, the decisive argument in this case was that there were pending petitions pending before the Supreme Court that contested the demarcation of the land. Consequently, the enjoyment of indigenous peoples' right to lands in Raposa Serra do Sol was again postponed, pending final decisions on the legal actions before the Federal Supreme Court.

Other indigenous peoples in Brazil have also been waiting for the Supreme

222 See supra Chapter IV, c. 223 Supremo Tribunal Federal [STF] AC 2009/08, Relator: Min. Carlos Britto, liminar concedida (injunction request accepted), 09 April 2008, STF Andamento http://www.stf.jus.br/portal/processo/verProcessoAndamento.asp Court to deliver final decisions regarding the enforcement of their constitutional right to lands, such as in Patax6 ha ha hae and others.224 Meanwhile, legal protections of the administrative procedure of demarcating indigenous lands and the constitutional promise of protecting indigenous peoples' rights remain only partially reaffirmed on the ground, such as in NandeRu Marangatu. In fact, indigenous peoples have not enjoyed their rights to their demarcated lands due to a lack of enforcement of their rights by the Brazilian judiciary since the Krenak decision. Indigenous peoples still suffer due to illegal activities and economic projects developed without their part1c1pat10n.· · · 225

Non-indigenous parties have sough injunctions and other procedural remedies as a tactic to delay and frustrate the claims of indigenous peoples. By granting injunctions, without examining the actual merits of the legal disputes, the Supreme

Court has prevented indigenous peoples from enjoying their territorial rights.226 The resulting lack of legal security to the detriment of indigenous peoples has promoted national and international concerns regarding the non-discriminatory legal treatment dispensed to indigenous peoples in Brazil.

This situation raises questions of whether the Brazilian Federal Supreme Court will establish a consistent approach to indigenous land rights' cases. What has prevented Judges and Justices from supporting the administrative policy of

224 There are 144 pending cases of indigenous lands in the Federal Supreme Court and the decision on Raposa Serra do Sol is expected to guide the solution of all the other cases. Joma! 0 Estado de Sao Paulo, 26 August 2008, also available at: http://www.socioambiental.orglinst/esp/raposa/?q=node/288. 225 Communication sent by APOINME, CIR, COIAB and Wara indigenous organizations to the Experts on the ILO Convention No. 169, September 2008, also available at: http: //www. ins titutowara. org. hr/inform eo it. html. 226 Intruders and settlers, called 'colonizers' of lands for purposes of agro-business, mining and logging activities rely on the lack of judicial remedies and judicial final decisions to continue their activities in the indigenous lands. See lNSTITUTO SOCIOAMBIENT AL, ENCICLOPEDIA DOS Povos lNDiGENAS DO BRAZIL 2001-2005, (2006) and INSTITUTO SOCIOAMBIENTAL, MINERA<;:Ao EM TERRAS INDIGENAS NA AMAZONIA BRASILEIRA, (2005). recognition and demarcation of indigenous lands? How can this situation be change?

While the Federal Supreme Court has developed initial statements regarding the procedural aspects of indigenous peoples' land rights cases, it is yet to reaffirmed indigenous peoples' constitutional right to land and to enforcement this fundamental right. Some of the Supreme Court conclusions, although mostly based on injunctions, are of extreme relevance if they are regarded as precedents of the Court to be applied in a consistent manner in the pending and future cases. V - Insights from international human rights law in the context of indigenous peoples Despite the immense diversity of indigenous peoples around the world,227 the

violations of rights and challenges they face are quite similar.228 In most parts of the

world, indigenous peoples suffer from a lack of security over their rights to land and

natural resources.229 Indigenous peoples face multiple obstacles in securing their right

to land, including: racism, entrenched forms of discrimination and colonialism;

assimilationist policies; lack of legal recognition of indigenous peoples' rights m

national systems; inflexible or deficient land administration services; lack of

resources, capacity, and political connections or awareness to take advantage of

existing legal opportunities for their own benefit.230

The lack of legal and administrative security over lands and natural resources

are the most recurrent reasons for the endangerment and destruction of indigenous

communities.231 Due to conflicts over lands, indigenous peoples face threats and

death, disease and health problems, disappearances of whole communities, forced

changes in cultural habits and in socio-economic relations, starvation, and other h uman ng. h ts v10. l ations.. 232

227 There are more than 350 million members of at least five thousand groups, most of them living in remote areas. INTERNATIONAL WORKING GROUP FOR INDIGENOUS AFFAIRS (IWGIA) (last visited November 2007) www.iwgia.org. According to lnstituto Socioambiental, there are today 227 indigenous peoples comprehending about 600 thousand members, or approximately 0,2% of the Brazilian population. INSTITUTO SOCJOAMBIENTAL, INDIGENOUS PEOPLES FROM BRAZIL: WHO, WHERE, HOW MANY?, (last visited in September 2008): http://www.socioambiental.org/pib/portugues/guongua/guantossao/indexgua.shtm 228 CYNTHIA PRICE-COHEN (ED.), HUMAN RIGHTS OF INDIGENOUS PEOPLES (1998). 229 The indigenous organization Tebtebba mapped the negative effect of economic globalization on indigenous lands throughout the world. See INTERNATIONAL FORUM ON GLOBALIZATION, GLOBALIZATION: IMPACTS ON INDIGENOUS PEOPLES (2006). Also available at: http://www.tebtebba.org/tebtebba files/forms/ifgmap l .pdf 230 MARCUS COLCHESTER, TOM GRIFFITHS, FERGUS MACKAY & JOHN NELSON, Indigenous land tenure: challenges and possibilities in LAND REFORM (Forest Peoples Programme, UK) (2004). 231 World Rainforest Movement, The struggle for land and the fate of the forests (Marcus Colchester & L. Lohmann eds.) (1993). 232 See supra Chapter IV A discrete body of international human rights law upholding the collective rights of indigenous peoples has emerged and is rapidly developing to protect indigenous peoples' rights to lands as fundamental rights, based on the principle of self-determination.233 Land is essential for indigenous life and community continuity; it encompasses security of individual rights and survival as well as communal rights and cultural survival. Therefore, violations of right of indigenous peoples to land are being addressed as matters of human rights under international law and under domestic, constitutional law. In Brazil, the right of indigenous peoples to land is recognized in the Constitution, but yet to be treated as an issue of human rights protection. 234

The usefulness of the link between international human rights and constitutional law

In Brazil, for different purposes and reasons, indigenous peoples' territorial rights have been formally recognized since the time of colonization.235 Nonetheless, on the ground, Brazil has not consistently implemented indigenous peoples' rights through policy and law enforcement. 236 This contradiction is deeply rooted in the

State's difficulty to go beyond formalism, overcome discrimination and to actually accept indigenous peoples as peoples. Indigenous peoples have distinct cultures and are entitled to collective rights, including the constitutionally recognized fundamental right to lands. It was only with the participation of indigenous peoples and organizations in the national and international political arena that the understanding, cultural acceptance and recognition of indigenous peoples' rights began to move from

233See S. JAMES ANAYA, INDIGENOUS PEOPLES IN INTERNATIONAL LAW (2004). See also S. WIESSNER, The rights and Status of Indigenous Peoples: A Global Comparative and International legal Analysis, 12 HARV. HUM. RTS. J., 57 (1999). 234 See Supra Chapter III. 235 See supra Chapter Ill 236 See supra Chapter IV cases formalism to realism. 237

The active participation of indigenous representatives in the political arena contributed to important developments and responses from international human rights bodies, for instance: the revision of ILO Convention No. 107 and ratification of

Convention No. 169 (1989); the establishment of the UN Working Group on

Indigenous populations (1982); and the adoption of the UN Declaration on the Rights oflndigenous Peoples (2007).238 The recognition of the application of the principle of non-discrimination and of international human rights law in the context of indigenous peoples' rights influenced the work of several international institutions, such as the

UN Human Rights Committee, CERD and the Inter-American System of Human

Rights. The legislation and constitutional reforms of States have also been influenced by such developments in international human right standards as applied to indigenous peoples. 239

Brazil's recognition and commitment to universal human rights standards is reflected in its 1988 Constitution, which mirrors international laws. Therefore, the lack of legal efficacy of formally-recognized indigenous peoples' rights, and particularly, the lack of enforcement of those rights by the judiciary, can no longer be hidden from international scrutiny. Today, more than ever, indigenous peoples, organizations, and other civil society entities can file human rights complaints under national and international laws. The promotion and protection of indigenous peoples' rights are monitored by the international community due to the existence of

237 S. James ANAYA, Divergent Discourses about International Law, Indigenous Peoples, and Rights Over Lands and Natural Resources: Toward a Realist Trend, 16 COLO. J. INT'L ENVTL. L. & POL'Y 237 (2005). 238 Indigenous peoples' representative started to participate at the United Nations and the Inter­ American Human Rights System in the late l 970's to ground their concerns on generally applicable human rights principles in the indigenous context. 239 S. JAMES ANAYA, International Human Rights and Indigenous Peoples: The Move Toward the Multicultural State, 21 ARIZ. J. INT'L & COMP. L. 13 (2004). international treaties ratified by the States. Therefore, the historical and persistent gap between formal recognition and implementation of indigenous peoples' rights on the ground is today being confronted by insightful experiences from the international human rights bodies.

Federal Supreme Court precedents, combined with the court's recent findings, its present willingness to deal with indigenous land rights cases and the developments in international human rights law can help the judiciary overcome the colonialism and discrimination that has thus far prevented it from reaching final decisions in the numerous cases pending. Fundamental rights are protected under both the Brazilian

Constitution and international human rights law. Therefore, international human rights law can and should be used to interpret and strengthen constitutional provisions, allowing the State to fully implement and observe its international human rights obligations.240

International Human Rights instruments: the protection of indigenous lands

The UN Declaration on the Rights of Indigenous Peoples (2007) and the OAS

Draft Declaration on the Rights of Indigenous Peoples (1997) (OAS Declaration); the

UN International Labour Organization (ILO) Convention Concerning Indigenous and

Tribal Peoples in Independent Countries No. 169 (1989); article 27 of International

Covenant on Civil and Political Rights (1966) (ICCPR); the UN Convention on the

Elimination of Racial Discrimination (1969); the UN Universal Declaration of Human

Rights (1948); the Inter-American Convention on Human Rights (1969) and its

Declaration on the Rights and Duties of Men (1948) support the assertion that indigenous peoples have collective and individual rights that are intrinsically and fundamentally related to their distinct cultures and ways of life. This includes

240 See infra Chapter VI, c. territorial rights. Therefore indigenous land rights should be protected as human rights.

The UN Declaration on the Rights of Indigenous Peoples is not an internationally legally binding instrument,241 the OAS Declaration has not yet been approved by the OAS General Assembly. Furthermore, the International Labour

Organization Convention Concerning Indigenous and Tribal Peoples in Independent

Countries No. 169 is not widely accepted242; and that article 27 of the ICCPR is only one article of a Covenant. However, all those instruments and provisions have been interpreted and used to link the relationship of indigenous peoples' to their lands with the survival and continuation of indigenous peoples, their cultures, customs and traditions. Moreover, these instruments have also advanced the practice of international human rights monitoring bodies and human rights courts, which in tum have influenced the domestic court decisions of some States.

For instance, the practice of the UN Human Rights Committee; CERD, and the Inter-American Court and Commission on Human Rights have established an international jurisprudence regarding indigenous peoples' land and human rights claims, crystallizing international customary law, particularly in the last decade.243

Human rights are not a restricted given set of rights. Rather, it is the construction of rights that ensures the protection of human dignity.244 Particularly in the context of

241 The Bolivian National Congress approved a domestic Law which incorporates the 46 articles of the UN Declaration on the Rights of Indigenous Peoples within its statutory body of laws. Ley 1101 de 2007 previously adopted by the Bolivian Congress House in October 2007 and by the Senate House on the 31 October 2007, submitted for ratification by the President Evo Morales. 242 ILO Convention No. 169 is ratified by 20 countries: Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Denmark, Dominica, Ecuador, Fiji, Guatemala, Honduras, Mexico, Nepal, Netherlands, Norway, Paraguay, Peru, Spain, and Venezuela, Available at: http://www.ilo.org/ilolex/english/convdispl .htm (last visited in October 2008). 243 See S. JAMES ANAYA, The Emergence of Customary International Law Concerning the Rights of Indigenous Peoples, 12 LAW & ANTHROPOLOGY: INT'L Y.B. LEGAL ANTHROPOLOGY 127 (2005). See also S. JAMES ANAYA, INDIGENOUS PEOPLES IN INTERNATIONAL LAW, 61-72, (2004). 244 FLA VIA PIOVESAN, DIREITOS HUMANOS E O DIREITO CONSTITUCJONAL INTERNACIONAL, (2006). indigenous peoples, additional protections that are specific to indigenous peoples are still required under international and domestic laws to guarantee the effective implementation of already recognized rights: their human rights.

Significant practice and jurisprudence of international human rights bodies At the United Nations level, the International Labour Organization (ILO) took the initiative to adopt ILO Convention No.107 (1957), the first multilateral treaty devoted specifically to the protection of indigenous peoples' human rights, including their collective right to land.245 That Convention was substituted by the UN

International Labour Organization Convention Concerning Indigenous and Tribal

Peoples in Independent Countries No. 169 (ILO Convention No. 169) (1989). ILO

Convention No. 169 is the most widely-referenced internationally binding instrument directed at indigenous issues. 246

Fundamentally, the UN Human Rights Committee's General Comment 23 on the Article 27 of the International Covenant on Civil and Political Rights (1966) associated the protection of indigenous culture with traditional lands and resources.247

In addition, CERD has repeatedly affirmed in its recommendations to States that indigenous peoples have the right to own, develop, control and use their communal lands in order to sustain their culture and lives.248 Most recently, the adoption of the

UN Declaration on the Rights of Indigenous Peoples, an important indigenous-. specific international human rights instrument, has consolidated the recognition of the fundamental character of indigenous peoples' right to lands.249

At the regional level, the Inter-American Human Rights System has ruled in

245 The subsequent multilateral treaty, ILO Convention No. 169 (1989), substituted ILO Convention No. 107 in order to replace the assimilationist bias of the world 1950's mentality. 246 For a detailed review of the ILO regime, PINERO-RODRIGUEZ, LUIS, INDIGENOUS PEOPLES, POST­ COLONIALISM AND INTERNATIONAL LAW-THE ILO REGIME: 1919-1989 (2006). 247 UN Hum. Rts. Committee General Comment 23, UN Doc. CCPR/C/21/Rev.1/Add.5 ( 1994). 248 CERD General Comment XXIII, UN Doc. A/52/18, Annex V ( 1997). 249 UN Declaration on the Rights oflndigenous Peoples, UN Doc. A/Res/61/295/L67 Add.I (2007). favour of the protection of indigenous peoples' right to property-in a quite culturally inclusive manner-acknowledging indigenous customs, traditions and land tenure systems. 250 Legal instruments such as the Inter-American Convention on Human

Rights as well as on the OAS Charter and the American Declaration on the Rights and

Duties of Man have been interpreted in this manner.251 Therefore, given their meaning to indigenous peoples' physical and cultural survival, indigenous peoples' lands are strongly protected under International Human Rights Law.

a. Protection of indigenous peoples' lands within the practice of UN bodies i. International Labour Organization The International Labour Organization (ILO) is a specialized UN agency, functioning in a tripartite structure including governments, employers and employees.

The ILO is concerned with social justice involving labour and labour conditions, addressing discrimination, labour injustices and the peace and harmony of the world.252 The UN International Labour Organization Convention Concerning

Indigenous and Tribal Peoples in Independent Countries No. 169 (ILO Convention

No. 169) changed the assimilationist mentality of the previous ILO Convention No.

107 by incorporating concerns about the social welfare of native people in independent countries and leading the agency to look at the whole issue of indigenous rights, particularly indigenous peoples' access to lands.

Both ILO Convention No. 107 and Convention No. 169 subject State parties to reporting procedures and supervisory mechanisms under the general provisions of

250 See infra Chapter V, b. 251 See Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Case No.11.577, Judgment of 21 August 2001, Inter-Am. Ct. H.R. (ser. C) No. 79, & Maya Indigenous Communities of the Toledo District v. Belize, Case No. 12.053, Decision 12 October 2004, Inter-Am. C.H.R. Report No.40/40. 252 Constitution of the International Labour Organization, Preamble ( 1946). the ILO Constitution.253 The periodic Government reports on the implementation of ratified Conventions No. 107 and No. 169 are reviewed by the ILO Committee of

Experts on the Application of Conventions and Recommendations. The Committee may ask for additional information and make observations, especially if problems regarding the enforcement of the Conventions are identified. A compilation of the

Committee's observations is published in its annual report.254 The Committee may also have on-site visits to engage in fact finding or to provide advisory assistance.

The ILO Convention No. 169 is an innovative development because it explicitly employs the language of collective rights. For instance, it referrs to indigenous control over "their own institutions, ways of life and economic development" and to the maintenance and development of "their identities, languages and religions."255 ILO Convention No. 169 and ILO Convention No. 107 represent the bulk of specific contemporary international standards on indigenous rights. The

ILO Conventions adapted general and specific rights to the context of indigenous peoples, in a way not previously found in international treaty law.256 Particularly regarding land rights, ILO Convention No. 169 refers to the respect for indigenous cultures and spiritual values as reflected in the collective aspect of the right to land.257

Brazil and the /LO Conventions

Under ILO's supervisory mechanisms with regard to the situation of vulnerable indigenous groups (such as the Yanomami people), Brazil was called upon to promote compliance with the ILO Convention No. 107 by reforming its policies

253 Constitution of the International Labour Organization, arts. 22 and 23 (1946). 254 The report is also used at the Labour Conference when selecting problem cases and calling States concerned to appear before the Committee and explain the reasons for the identified problems. 255 UN International Labour Organization Convention Concerning Indigenous and Tribal Peoples in Independent Countries No. 169, Preamble (1989). 256 PATRICK THORNBERRY, INDIGENOUS PEOPLES AND HUMAN RIGHTS, 320 (2002). 257 UN International Labour Organization Convention Concerning Indigenous and Tribal Peoples in Independent Countries No. 169, article 13 (1989). and practices in terms of securing land rights, self-sufficiency, and cultural integrity for indigenous peoples. 258 In 1999, the ILO Committee of Experts made observations on the impact of the construction of four hydroelectric plants affecting Guarani areas in the Vale do Ribeira in Brazil, and it requested the Government to keep it informed of the situation regarding the plants' impact on the surrounding communities.259

Even though, at the time, Brazil was only party to ILO Convention No. 107, the Committee interpreted the State's obligations according to general normative precepts consistent with ILO Convention No. 169.260 Since 2004 Brazil has incorporated ILO Convention No. 169 into its domestic law, but no significant change has taken place regarding further legislation or consultation procedures. In 2008, a group of indigenous organizations and the Central Unica dos Trabalhadores (CUT) sent a communication to the ILO Convention No. 169 mechanism of experts regarding the State's violation of indigenous peoples right to consultation and participation in the decisions of projects that affect at least four indigenous lands.261

Indigenous peoples right to lands in the /LO Convention N.169

ILO Convention No. 169 calls upon the States to respect the special importance of the relationship of indigenous peoples with their lands or territories to

258 ILO, Report of the Committee of Experts on the Application of Conventions and Recommendations: General Report and Observations Concerning Particular Countries, Report 3 (part 4A), International Labour Conference, 81 st Session, at pp. 348-52 (1994); Report of the Committee of Experts on the Application of Conventions and Recommendations: General Report and Observations Concerning Particular Countries, Report 3 (part 4A), International Labour Conference, 781h Session, at p. 353-54 (1991 ); Report of the Committee of Experts on the Application of Conventions and Recommendations: General Report and Observations Concerning Particular Countries, Report 2 (part 4A), International Labour Conference, 781h Session, at p.355-68 (1989). 259 ILO, Report of the Committee of Experts on the Application of Conventions and Recommendations: General Report and Observations Concerning Particular Countries, Report 3 (part IA), International Labour Conference, 861h Session, at p.440 ( 1999) 260 S. JAMES ANAYA, INDIGENOUS PEOPLES IN INTERNATIONAL LAW, 226-32 (2004). 261 Communication sent by APOINME, CIR, COIAB and Wara indigenous organizations to the Experts on the ILO Convention No. 169, also available at: http://www.institutowara.org.brlinformeoit.html (2008). their cultures and spiritual values. According to ILO Convention No. 169, article 13, indigenous lands include the concept of territories, which covers the total environment of the areas that the peoples concerned occupy or use. Article 14 established obligations upon the State parties in order to secure indigenous peoples' rights over lands, including through recognition, identification and demarcation, effective protection of indigenous peoples land tenure systems, as well as legal resolution of indigenous peoples' land claims. The ILO Convention No. 169 highlighted the collective aspect of the indigenous relationship with lands; indigenous peoples' right to natural resources and the right to participate in the use, management and conservation of those resources. The Convention addresses indigenous peoples' rights to participation and to consultation. Similar to the 1988 Brazilian Federal

Constitution, ILO Convention No. 169 established that States are obliged to adopt measures to prevent-and punish-unauthorized intrusions onto, or use of, indigenous lands. Also, article 16(1) determines that indigenous peoples shall not be removed from the lands, which they occupy. Furthermore, article 16(3) states that whenever possible, these peoples shall have the right to return to their traditional lands, as soon as the grounds for relocation cease to exist.

Indigenous peoples' territorial rights included ownership, possession, and use of lands and natural resources because, in many countries like in Brazil, indigenous peoples do not have full title to their lands. However, they are still protected under the ILO Convention No. 169. The recognition of the collective nature of the right that arises from the relationship that indigenous peoples have with their lands and territories-as opposed to an imposed western model of property as a right belonging to individual-was expressed in observations by the ILO Governing Body.262

262 Ibid. 347. ii. Human Rights Committee The United Nations Human Rights Committee is the Monitoring Body for the

1966 ICCPR, one of the most important instruments of the international Bill of

Rights. The competence of the Human Rights Committee was established in Article I of the Additional Protocol I to the ICCPR. The Human Rights Committee monitors

State compliance with the ratified ICCPR and Additional Protocols.

Article 27 of the ICCPR states: In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.

The Human Rights Committee has interpreted the right to culture in a broad manner to include the right of a minority or indigenous people to exist as such .. As the Human Rights Committee commented:

"culture manifests itself in many forms, including a particular way of life associated with the use of land resources, especially in the case of indigenous peoples. That right may include such traditional activities as fishing or hunting and the right to live in reserves protected by law. The enjoyment of these rights may require positive measures of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them. "263

The Committee has also identified the need for some positive measures by

States to protect the identity of a minority or indigenous peoples and the rights of its members to enjoy and develop their culture. These are, in practical application, collective rights. The UN Human Rights Committee has also recognized the fundamental importance of the link between indigenous peoples' economic and social activities and their traditional land for indigenous cultural protection. The Committee

263 UN. Hum. Rts. Committee General Comment N.23 (50), UN Doc. HRI/GEN/1/Rev.l at38 (1994). has also concluded that under the ICCPR, States have legal obligations to protect indigenous peoples' cultural integrity, which necessarily includes the obligation to protect indigenous peoples' land, resources and property rights. The interrelation of civil, political, economic, social and cultural communal rights with the right to lands has shown to be fundamental to the protection of indigenous peoples and their various human rights.264

Therefore, cases concerning indigenous peoples and their right to lands have been subject to review by the Human Rights Committee pursuant to Article 27 of the

ICCPR. That is, these cases have been raised in the context of the protection of fundamental cultural rights.265 Despite the fact that the rights expressed in the ICCPR are generally individual in nature, article 27 links the rights of individuals to collective and group rights, as it protects indigenous peoples' cultural rights. Thus, the interpretation and application of article 27 of the ICCPR by the UN Human Rights

Committee has ensured that the ICCPR is the a very useful legal mechanism within the UN human rights system in terms of protecting indigenous peoples' rights to land as collective, fundamental human rights. This approach to indigenous peoples' rights to lands is reinforced by articles 11 and 25 of the UN Declaration on the Rights of

Indigenous Peoples.

iii. CERD The United Nations Committee on the Elimination of Racial Discrimination

(CERD) is the monitoring body for the International Convention on the Elimination

264 ERIKA YAMADA, COLLECTIVE ECONOMIC, SOCIAL AND CULTURAL RIGHTS APPROACH TO INDIGENOUS LAND RIGHTS (May 2005) (unpublished L.LM thesis, Raoul Wallemberg Institute/University of Lund) Available at: http://www.jur.lu.se/Intemet/english/ essay /Masterth.nsf/0/672AE54626 l 632CEC 125701200361801 /$F ile/exam.pdf?OpenE!ement) 265 Kitok v. Sweden, UN Hum. Rights Committee 43rd session, Communication No. 197/1985 (27 July 1988); Lubicon Lake Band v. Canada, UN Hum. Rights Committee 45th session, Communication No. 167/1984 (26 March 1990); & Ilmari Uinsman vs. Finland, UN Hum. Rights Committee 52nd session, Communication No. 511/1992 (8 of November 1994). of All Forms of Racial Discrimination (ICERD). A group of independent experts monitors States parties in their implementation of the rights set in the ICERD. The

Committee examines States' reports and addresses its concerns and recommendations to the State party. The Committee also performs its monitoring functions through the early warning procedure, and the examination of inter-state or individual complaints.

Whereas the inter-State complaint procedure is seldom used, and the individual complaints procedure requires State acceptance of the competence of

CERD,266 the early-warning procedure has been more accessible to indigenous peoples. The Committee has received requests for urgent procedures to respond to problems that generate escalating conflicts, hatred, and discrimination against indigenous peoples. The Committee has been considered the situation of indigenous peoples in many countries, particularly in the Americas,267 where land based conflicts have reflected serious violations of the ICERD.

In its monitoring tasks, the Committee has consistently affirmed the territorial rights of indigenous peoples as necessary for equality before law, and essential for the enjoyment of civil, political, social, economic and cultural rights without discrimination based on race, color, national, or ethnic origin.268 In its General

Comment XXIII-cited in most letters and decisions of the Committee concerning indigenous peoples and their rights to equal dignity and freedom from any kind of discrimination-CERD makes reference to indigenous peoples' right to own, develop, control, and use their communal lands and territories as well as their resources:

266 CERD Convention, art. 14 (1965). 267 CERD Committee has monitored the situation of indigenous peoples under the early-warning procedure in Australia, Belize, Brazil, Chile, Nicaragua, Peru, Suriname, United States, besides the Philippines, and New Zealand. 268 CERD decision 1(68) considering the situation of the Western Shoshone people of the United States of America, under the early-warning and urgent measure procedure, Committee on the Elimination of Racial Discrimination, §§ 7 and 8 (11 April 2006). "3. The Committee is conscious of the fact that in many regions of the world indigenous peoples have been, and are still being, discriminated against and deprived of their human rights and fundamental freedoms and in particular that they have lost their land and resources to colonists, commercial companies and State enterprises. Consequently, the preservation of their culture and their historical identity has been and still is jeopardized .... 5. The Committee especially calls upon States parties to recognize and protect the rights of indigenous peoples to own, develop, control and use their communal lands, territories and resources and, where they have been deprived of their lands and territories traditionally owned or otherwise inhabited or used without their free and informed consent, to take steps to return those lands and territories. Only when this is for factual reasons not possible, the right to restitution should be substituted by the right to just, fair and prompt compensation. Such compensation should as far as possible take the form of lands and territories. "269 CERD General Comment XXIII ( 1997)

Furthermore, in its monitoring activities the Committee has repeatedly expressed its concerns regarding discriminatory treatment of indigenous peoples, particularly in the process of securing lands and in legal actions involving indigenous peoples at the domestic level. 270 The Committee has called on States parties to take effective measures, including legislation, to secure indigenous peoples' rights demarcation and titling of lands,271 to remove non-indigenous occupants, and to investigate and punish of crimes and racial hatred against indigenous peoples.272

When reviewing the situation of the indigenous peoples in the Raposa Serra do

Sol (RSS) indigenous land in Brazil under the early-warning and urgent measure procedure, the Committee stated that, despite the demarcation and ratification of the land, the situation of Raposa Serra do Sol indigenous peoples had not improved and

269 CERD General Comment XXIII, 51 st Session, UN Doc. A/52/18, Annex V, §§ 3 and 5 (1997). 27° CERD letter to Belize (situation of the Maya people from the Toledo district), 24 August 2007 and CERD Letters to Brazil (situation of the Macuxi, Wapichana, Taurepang, lngaric6 and Patamona people from Roraima) 14 March 2007, 24 August 2007, 7 March 2008, and 15 August 2008. 271 CERD letter to Nicaragua (situation of the Awas Tingni Community), 24th August 2007. 272 CERD letters to Brazil (situation of the Macuxi, Wapichana, Taurepang, lngaric6 and Patamona people from Roraima) 14 March 2007, 24 August 2007, 7 March 2008,tid 15 August 2008. may have even had deteriorated further in many regards due to violent attacks, threats

and escalating racial conflicts related to indigenous land rights claims. 273 In its letter to Brazil,274 the Committee made strong recommendations to the State party and highlighted important practical actions to have indigenous peoples' territorial rights effectively secured in that country. The Committee recalled the State's international obligation to implement the Convention in Brazil, including through the observation of domestic judicial remedies. The Committee then called upon the State to take the following practical administrative and judicial measures:

"1. Complete the final and total removal of all illegal non­ indigenous occupants of the RSS, as a matter of urgency,( ... ) as all legal impediments have allegedly been removed; 2. Ensure, through adequate federal and state means, the security of all members of the indigenous communities, as well as the exercise of their rights under the Convention.( ... ); 3. Ensure, in the light of the Committee's General Recommendation 31 on the prevention of racial discrimination in the administration and functioning of the criminal justice system, that the absence of investigations or prosecutions is not due to prejudice of the local police or judicial authorities towards the indigenous communities, or their local complicity with the perpetrators of the violent acts against those communities. ( ... ); 4. Provide adequate reparation to the indigenous communities for the illegal use of their lands and the environmental damage suffered, as an obligation assumed by the State party under article 6 of the Convention; 5. Investigate, prosecute and convict persons responsible for the dissemination of ideas based on racial superiority or hatred, as well as for acts of violence or incitement to such acts against the indigenous peoples in RSS, as required under Article 4 of the Convention; 6. Prevent and combat prejudice leading to racial discrimination and provide information on measures adopted with regard to promoting tolerance ( ... ), according to article 7 of the Convention." CERD letter to Brazil regarding the situation of indigenous peoples

273 CERD letter to Brazil (situation of the Macuxi, Wapichana, Taurepang, Ingaric6 and Patamona people from Roraima), 24 August 2007. 274 CERD letters to Brazil (situation of the Macuxi, Wapichana, Taurepang, Ingaric6 and Patamona people from Roraima) 14 March 2007, 24 August 2007, 7 March 2008, and 15 August 2008. from Raposa Serra do Sol (March 2007)275

Significantly, the CERD was the first UN body to issue a decision towards the

United States government regarding indigenous peoples' rights. Considering the situation of the Western Shoshone people, the Committee expressed its concern and made strong recommendations to the government of the United States that it freeze, desist from and stop all activities that violate the right to land of the people concerned.276 The committee linked indigenous peoples' collective right to lands to the ICERD and expressed its concerns regarding the lack of legal protection, State policies, and judicial remedies available to indigenous peoples to secure their lands right:

"7. The Committee is of the view that past and new actions taken by the State party on Western Shoshone ancestral lands lead to a situation where, today, the obligations of the State party under the Convention are not respected, in particular the obligation to guarantee the right of everyone to equality before the law in the enjoyment of civil, political, economic, social and cultural rights, without discrimination based on race, color, or national or ethnic origin. The Committee recalls its General recommendation 23 ( 1997) on the rights of indigenous peoples, in particular their right to own, develop, control and use their communal lands, territories and resources, and expresses particular concern about: a) Reported legislative efforts to privatize Western Shoshone ancestral lands for transfer to multinational extractive industries and energy developers. b) Information according to which destructive activities are conducted and/or planned on areas of spiritual and cultural significance to the Western Shoshone peoples, who are denied access to, and use of, such areas ... e) The reported intimidation and harassment of Western Shoshone people by the State party's authorities ...which gravely disturb the enjoyment of their ancestral lands. f) The difficulties encountered by Western Shoshone peoples

275 CERD letter to Brazil under the early warning and urgent procedure on the situation of indigenous peoples from Raposa Serra do Sol (14 March 2007). 276 CERD decision 1(68) considering the situation of the Western Shoshone people of the United States of America, under the early-warning and urgent measure procedure, Committee on the Elimination of Racial Discrimination, 6th Session (20th February- 10th March 2006). in appropriately challenging all such actions before national courts and in obtaining adjudication on the merits of their claims, due in particular to domestic technicalities." 277

The Committee then urged the United States government to abide by CERD General Recommendation 23 and to take immediate action "to initiate a dialogue with the representatives of the Western Shoshone peoples in order to find a solution acceptable to them, which complies with their rights under ( ... ) the Convention." The Committee recommended that the United States adopt the following measures until a final decision or settlement is reached on the status, use, and occupation of the indigenous lands:

a) Freeze any plan to privatize Western Shoshone ancestral lands for transfer to multinational extractive industries and energy developers; b) Desist from all activities planned and/or conducted on the ancestral lands of Western Shoshone or in relation to their natural resources, which are being carried out without consultation with and despite protests of the Western Shoshone peoples; c) Stop imposing grazing fees, trespass and collection notices, horse and livestock impoundments, restrictions on hunting, fishing and gathering, as well as arrests, and rescind all notices already made to that end, inflicted on Western Shoshone people while using their ancestral lands.278

b. Protection of indigenous peoples' lands within the OAS The OAS has its own system of human rights protection, with its own instruments, monitoring procedures and bodies. Given the historical context in which

American societies have developed, indigenous issues are a substantial part of the agenda of the OAS, often as human right issues. 279 The so-called Inter-American

277 CERD decision 1(68) considering the situation of the Western Shoshone people of the United States of America, under the early-warning and urgent measure procedure, Committee on the Elimination of Racial Discrimination, 681h Session (201h February- I 01h March 2006). 278 Ibid. 279 Inter-Am. Charter of Social Guarantees, art.39 (1948). See also S. JAMES ANAYA, & ROBERT WILLIAMS JR., The protection of Indigenous Peoples' Rights over Land and Natural Resources Under the Inter-American Human Rights System, 14 HARV. HUM. RTS. J. 33, 2001. System of Human Rights is comprised of the Inter-American Court of Human Rights and the Inter-American Commission on Human Rights. 280

The Inter-American Commission on Human Rights considers claims of human rights violations committed by OAS member States under both the Inter-American

Convention on Human Rights and the American Declaration on the Rights and Duties of Men. 281 If the State concerned has accepted the jurisdiction of the Inter-American

Court of Human Rights, violations of the Inter-American Convention may be brought before the Court by the Inter-American Commission.

Although neither the American Convention nor the Declaration on the Rights and Duties of Men mentions indigenous peoples specifically, both included general human rights provisions that protect indigenous peoples' right to land. For instance, the right to property is affirmed by Article 21 of the American Convention on Human

Rights and Article XXIII of the American Declaration on the Rights and Duties of

Man. These instruments have been interpreted by the regional human rights bodies to include land tenure regimes derived from indigenous customs and traditions.282 In cases concerning indigenous peoples' rights, the OAS bodies have also made reference to other relevant international instruments such as the ILO Conventions.

The rights to physical well being and cultural integrity have been interpreted in the OAS human rights system in conjunction with the right to land and natural resources for subsistence, familial and social relations, religious practices, and even the very existence of indigenous communities as distinct cultural groups. The Inter­

American human rights system recognizes indigenous peoples' right to the protection

280 See F. Piovesan, Direitos Humanos e o Direito Constitucional Internacional, 2006, pp. 221-251. 281 See F. Piovesan, Direitos Humanos e o Direito Constitucional Internacional, 2006, pp. 230-237. 282 Mayagna (Sumo) A was Tingni Community v. Nicaragua, Case No.11.577, Judgment of 21 August 2001, Inter-Am. Ct. H.R. (ser. C) No. 79, and Sawhoyamaxa Indigenous Community v. Paraguay, Case No.322, Judgment of 29 March 2006, Inter-Am. Ct. H.R. (ser. C) No.146. of their traditional lands and natural resources, derived from the right to property, physical well-being and cultural integrity and the principle of non-discrimination.283

Therefore, member States have corresponding legal obligations at the OAS level.

i. Jurisprudence of Inter-American Court of Human Rights Awas Tingni

In 2001, the Inter-American Court issued a landmark decision in the case of

Awas Tingni involving an indigenous community's land rights in Nicaragua. 284 The

Inter-American Court in Awas Tingni recognized the collective character of the right to land of the indigenous peoples as well as the relationship of indigenous lands to the cultural and spiritual life of the people. In that case, the government of Nicaragua approved concessions for logging in areas without the consent of the indigenous people and without offering any domestic legal remedy in response to the indigenous peoples' rights claims.

At that time, Nicaragua did not have a statute regulating recognition and demarcation of indigenous lands, and thus, did not offer adequate legal protection for indigenous peoples in terms of securing their traditional lands. Awas Tingni was considered by the Inter-American Commission on Human Rights, and precautionary measures were adopted to secure indigenous peoples' rights. The case was further referred to the Inter-American Court of Human Rights. It was the first case of indigenous lands right in which an international tribunal issued a legally binding decision. The Court's decision set an important precedent for the rights of indigenous peoples in international law in the Americas and elsewhere.

283 S. JAMES ANA YA, & ROBERT WILLIAMS JR., The protection of Indigenous Peoples' Rights over Land and Natural Resources Under the Inter-American Human Rights System, 14 HARV. HUM. RTS. J. 33, 31-96, 2001. 284 Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Case No.11.577, Judgment of 21 August 2001, Inter-Am. Ct. H.R. (ser. C) No. 79, §149. The Court found that Nicaragua had violated the right of the Mayagna (sumo) community of Awas Tingni to property, as affirmed in the Inter-American Convention on Human Rights. The right to property was interpreted by the international body to protect the traditional land tenure of indigenous peoples. The Court affirmed the right of the Mayagna indigenous peoples to have their lands demarcated and titled. The

Court also pointed out the need for Nicaragua to reform its laws and administrative procedures to effectively guarantee territorial rights of indigenous peoples in

Nicaragua.285 The international decision established December 17, 2002 as the deadline for the enforcement of the international judgment.

This deadline passed without Nicaragua implementing substantial changes in the situation of the community. The community filed a legal action before the

Nicaraguan Supreme Court.286 The domestic claim alleged that the Government had violated of the Constitution of Nicaragua and other domestic laws in failing to implement the Inter-American Court's decision and by failing to protect land rights of the indigenous peoples concerned. As a result, in 2003 Nicaragua adopted a statute defining a set of rules and procedures to demarcate and title indigenous communal lands. This statute initiated the demarcation process.

Sawhoyamaxa

In March 2006, the Inter-American Court issued a decision on another m. d"1genous 1an d ng . ht s case: saw h oyamaxa zn. d"zgenous community. v. p araguay. 287

This decision further developed international jurisprudence regarding indigenous peoples' land rights, particularly in relation to the obligation of the State to provide

285 Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Case No.11.577, Judgment of 21 August 2001, Inter-Am. Ct. H.R. (ser. C) No. 79, §§ 142-155. 286 The Awas Tingni community still suffers from the presence of invaders on their lands and still awaits demarcation and titling, which would guarantee the full enjoyment of their territorial rights. 287 Sawhoyamaxa Indigenous Community v. Paraguay, Case No.322, Judgment of 29 March 2006, Inter-Am. Ct. H.R. (ser. C) No.146. effective protection to indigenous peoples' land rights.

The Sawhoyamaxa indigenous community alleged that the State of Paraguay did not ensure their right to property. The community territorial rights' claim had been pending at the domestic level since 1991, even though administrative demarcation recognized some parcels of their lands. The community alleged that human rights violations were occurring while the decision was pending. The

Community and the Inter-American Commission stated before the Court that the failure of Paraguay to grant indigenous peoples judicial protection was barring the community and its members from title and possession of their lands, placing them a situation of vulnerability, which threatened their survival and integrity.

The Court found that Paraguay had violated the right to life288 (based on the deaths of adults and several children), in connection with violations of the right to property. Community members were subjected to precarious living conditions as they lived beside the roads while their land rights claims were pending. The Court based its decision on article 21 of the American Convention in relation to the communal property of indigenous communities, referring to the ILO Convention No. 169. The

Court found that the State of Paraguay violated Articles 1(1) and 2 of the American

Convention because it failed to ensure an accessible and simple procedure to protect indigenous rights; and it failed to provide the competent authorities with the technical and material conditions necessary to respond timely to the requests by the community for the protection of their fundamental rights.289

Under Paraguayan laws, indigenous communities have rights to their lands.

The Paraguayan Constitution recognizes the existence of indigenous peoples as

288 American Convention on Human Rights, art.4 (1969). 289 Sawhoyamaxa Indigenous Community v. Paraguay, Case No.322, Judgment of 29 March 2006, Inter-Am. Ct. H.R. (ser. C) No.146, §109. groups, which have preceded the formation of Paraguay. Therefore, indigenous cultural identity and the relationship with their traditional territories and their communal land-tenure systems are protected under Paraguayan laws. Despite the

State's formal recognition of indigenous peoples' right to lands as an element of indigenous culture and survival, the Inter-American Court stated that: "the point at issue is effective vesting of property rights. "290 The Court f~und that "such merely abstract or legal recognition becomes meaningless in practice if lands have not been physically delimited and surrendered."291 Accordingly, the Court clarified that actual possession and occupation of the land is not required to deteline whether the area is an indigenous land if the special relationship of the indigenous community with the land exists. 292

Further the Court affirmed that the fact that the traditional land is being privately held by third parties, regardless of their 'productivity', does not constitute an

"objective and reasoned" ground for dismissing prima facie claims of indigenous people. 293 Therefore, the indigenous community was entitled to restitution as they were unwillingly dispossessed of their lands.294 The Court determined that the principal means available for the State move the members of the Community from the side of the road was to give them their traditional lands. However, existing administrative procedures were slow and inefficient and did not offer any certainty of an effective resolution. Hence, the Court concluded that the State did not guarantee to the right to communal property to the members of the Sawhoyamaxa Community and did not provide either guarantees or judicial protection within a reasonable time.

290 Id. at § 124. 291 Id. at§ 143. 292 Id. at§ 131. 293 Id. at§§ 138 and 139. 294 Id. at§ 128. ii. Inter-American Commission on Human Rights The Inter-American Commission on Human Rights reports on the situation of human rights in OAS member States. In respect to indigenous peoples and their territorial rights, the Commission has interpreted the right to lands in connection with the right to cultural integrity.295 In a number of its human rights reports, the

Commission has affirmed that indigenous peoples' right to cultural integrity includes the productive organization of the indigenous communal ancestral land tenure, and the preservation of indigenous cultural identities.296 In its monitoring role, the

Commission has accepted important human rights complaints regarding indigenous land rights, has carried significant investigations, and has referred some cases to the

Inter-American Court, such as in the Awas Tingni v. Nicaragua case.297

In 2004, considering the case of the Maya people from Belize,298 the Inter­

American Commission found that Belize violated the right of the indigenous people to property299 and to equality before the law,300 because the Government of Belize failed to effectively secure and respect Maya customary land tenure. Even though

Belize was not party to the Inter-American Convention on Human Rights-the primary binding human rights instrument of the region-the Commission considered the case under its competence to monitor the compliance of the OAS member States with the American Declaration and according to principles of customary international

295 See the Inter-Am C.H.R. Reports on the Situation of Human Rights in different countries: Ecuador - OEA/Ser.L.N./II.96, doc. IO rev.I (1997); Brazil - OEA/Ser.L./V./II. 97, doc.29 rev. I (1997); Mexico - OEA/Ser.L.N./II.106, doc.59 (2000). 296 Inter-Am. C.H.R, Report on the Situation of Human Rights of a Segment of the Nicaraguan Population of Miskito Origin and Resolution on the Friendly Settlement Procedure, OEA/Ser.LN/Il.62, doc.26 at 76 (1983). 297 Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Case No.11.577, Judgment of 21 August 2001, Inter-Am. Ct. H.R. (ser. C) No. 79. 298 Maya Indigenous Communities of the Toledo District v. Belize, Case No. 12.053, Decision 12 October 2004, Inter-Am. C.H.R. Report No.40/40. 299 American Declaration of the Rights and Duties of Man (1948), Art. XXIII. 300 American Declaration of the Rights and Duties of Man (l 948), Art. II law.301

The case arose because the Government of Belize had approved logging and oil concessions on lands traditionally used and occupied by Maya people without their consent. In Belize, those areas were officially designated as State land because Belize did not have a specific domestic statute regulating the recognition and demarcation of indigenous lands. The situation of lack of rights and lands security violated the human rights of the Maya people, according to widely shared values and practices of Sates. 302

Several Maya individuals filed a lawsuit in the Supreme Court of Belize to have the logging concessions enjoined and declared in violation of the Maya's rights.

However, there was no effective response from the Government and therefore the case was brought to the Inter-American Commission on Human Rights. The

Commission found that the failure to recognize the Maya's land tenure when other forms of property were protected under Belize's legal system discriminated against the indigenous peoples.

The Commission found that Belize violated the right to judicial protection of indigenous people, 303 because of the delay and inaction of the State in the earlier lawsuit filed before the Supreme Court. The Commission recommended that the State engage in fully informed consultations with the Maya people to adopt the legislative and administrative measures necessary to secure Maya property rights, based on their customary land tenure system. The Commission recommended that Belize compensate indigenous people for the environmental damage resulting from the

301 Maya Indigenous Communities of the Toledo District v. Belize, Case No. 12.053, Decision 12 October 2004, Inter-Am. C.H.R. Report No.40/40. 302 Prof. S. James Anaya refers to "New and Emergent Customary International Law". See S. JAMES ANAYA, INDIGENOUS PEOPLES 1N INTERNATIONAL LAW, 61-72 (2004). See also S. JAMES ANAYA, The Emergence of Customary International Law Concerning the Rights of Indigenous Peoples, 12 LA w & ANTHROPOLOGY: lNT'L Y.B. LEGAL ANTHROPOLOGY 127 (2005). 303 American Declaration of the Rights and Duties of Man (1948), Art. XVIII. logging.304

The Commission's decision vindicated the position that Maya property rights exist based upon customary tenure, independent of any government grant. 305 The findings of the Commission gave new impetus to the negotiations between the Maya leaders and the government. In 2007, the Supreme Court of Belize issued its landmark decision on the case, recognizing the right to land of indigenous peoples, as established in domestic and international law. (See Box 2)

Box 2 - The case of the Maya people of Southern Belize

Considering the claim of Maya people from the Toledo District of Belize306, the Inter­

American Commission on Human Rights issued a final report, which found that the Stat had violated the human rights of indigenous peoples in relation to their lands and resources. The Government's grant of logging concessions over traditional Maya areas without the informed consent of the community was found to be a violation of the American Declaration of the Rights and Duties of Men.

Despite the absence of domestic legislation protecting indigenous peoples' right to lands, the Inter­

American Commission affirmed the State's obligation to recognize and protect indigenous lands. The

Commission found that the State of Belize violated the right to equal treatment before the law and violated the Maya people's right to judicial protection, affirmed in the American Declaration article

XVIII.

In 2006, the Sarstoon-Temash Institute for Indigenous Management (SATIIM) filed an injunction in the Supreme Court of Belize based on the Inter-American Commission to stop government-authorized seismic testing and oil exploitation on Maya indigenous lands. In April 2007, the Supreme Court of Belize received other two lawsuits against the government of Belize, alleging the violation of constitutional right to property and the right to equality of the Maya people by State authorities. All the violations were connected to the lack of recognition and protection of indigenous

304 Maya Indigenous Communities of the Toledo District v. Belize, Case No. 12.053, Decision 12 October 2004, Inter-Am. C.H.R. Report No.40/40, § 197(1 ). 305 S. JAMES ANAYA, The Case of the Maya Villages of Belize: Reversing the Trend of Government Neglect to Secure Indigenous Land Rights, 8 HUM. Rrs. L. REV. 377, 4 (2008) (co-author Maia S. Campbell). 306 Maya Indigenous Communities of the Toledo District v. Belize, Case No. 12.053, Decision 12 October 2004, Inter-Am. C.H.R. Report No.40/40 .. peoples' customary land rights in Belize.

In October 2007, the Supreme Court of Belize issued a landmark decision. The Supreme

Court affirmed that indigenous Maya communities from Belize have rights to the lands and the natural resources from the lands that they have traditionally occupied. The Supreme Court recognized that the customary property right of the Maya people was protected under Belize Constitutional Law and under

International Law. Significantly, the Chief Justice of the Belize Supreme Court relied on the newly­ adopted UN Declaration on the Rights of Indigenous Peoples307 to support evidence of general principles of international law regarding the right to lands of indigenous peoples, and to interpret

Belize's constitution as including indigenous peoples' territorial rights. 308

c. Protection of Indigenous Peoples' lands under Customary International Law In addition to the practice of the UN and OAS human rights monitoring bodies regarding the recognition and protection of the indigenous peoples' right to land, the fundamental relationship among indigenous peoples, territories, culture, lives and spirituality has also been affirmed within Customary International Law.309 States,

Indigenous Peoples, intergovernmental agencies, and NGOs have reaffirmed indigenous peoples' right to land when reporting on the situation of indigenous peoples' human rights; in international commitments; in domestic policies; and in agreements signed with indigenous peoples. Although oftentimes such recognition is not followed by implementation at the domestic level, the formal manifestation of the

307 UN Declaration on the Rights oflndigenous Peoples, UN Doc. A/Res/61/295/L67 Add.l (2007). 308 Supreme Court of Belize, Decision on the Consolidated claims, Claim Form, Aurelio Cal et al. (Santa Cruz Village) v. A.G., Claim No. 171 of2007; Claim Form, Coy et al. (Conejo Village) v. A.G., Claim No. 172 of 2007, also available at: http://www. law .arizona.edu/depts/iplp/advocacy/maya_ belize/documents/ClaimsN os 171 and 172of2007 .pdf. 309 The consensus among States and intergovernmental agencies such as human rights monitoring bodies, indigenous peoples, NGOs and other relevant international actors followed from widely shared values of human dignity and evidenced in the practice comprise international custom. International custom, as an evidence of general practice of States accepted as Law, along with International Conventions or Treaties, and General Principles of Law are sources of International Law. Statute of the International Court of Justice, Art. 38(1). More on indigenous peoples and international customary law, see S. JAMES ANAYA, INDIGENOUS PEOPLES IN INTERNATIONAL LAW, 61 (2004). shared values and concerns of States leads to the formation of customary international law.

Likewise, treaty based rights and rights that are part of customary international law-such as indigenous peoples' right to land-impose obligations upon States and can be asserted within international and national legal systems. Contemporary international human rights law in the context of indigenous peoples includes treaties and conventions, as well as customary international law. 310 The adoption of the UN

Declaration on the Rights of Indigenous Peoples311 highlighted the customary international law character of a number of indigenous peoples' rights, including territorial rights. The Declaration is a formal expression of State consensus in the recognition of indigenous peoples' rights. The long process of having the Declaration adopted is evidence of the evolving character of international law and the time required for States to affirm indigenous peoples' rights.

i. UN Declaration on the Rights of Indigenous Peoples The approval of the UN Declaration on the Rights of Indigenous Peoples by the General Assembly of the United Nations312 on 13 September 2007-after over 20 years of negotiation indigenous peoples-is a major step towards the legal and political recognition of indigenous peoples' rights. The UN Declaration interprets fundamental human rights in the specific context of indigenous peoples. The UN

Declaration is underpinned by the principle of non-discrimination; the universality of human rights; and the right to self-determination of indigenous peoples. Regardless

310 See S. JAMES ANAYA, INDIGENOUS PEOPLES IN INTERNATIONAL LAW, 72 (2004). 311 UN Declaration on the Rights of Indigenous Peoples, adopted by the UN General Assembly on 13 September 2007. UN Declaration on the Rights of Indigenous Peoples, UN Doc. A/Res/61/295/L67 Add. I (2007). 312 The General Assembly adopted the Declaration on the Rights of Indigenous Peoples by a majority of 144 States voting in favor, 4 votes against (Australia, Canada, New Zealand and the United States) and 11 abstentions (Azerbaijan, Bangladesh, Bhutan, Burundi, Colombia, Georgia, Kenya, Nigeria, Russian Federation, Samoa and Ukraine). of whether the Declaration represents "soft" or "hard law", some provisions of the

Declaration are already part of customary international law and have established international legal obligations. Indigenous peoples' rights to land are international human rights. States are bound to protect such rights through treaties and international customary law.

As a Declaration, the UN instrument for indigenous peoples is not automatically legally binding. However, some of the provisions of the UN

Declaration have already been incorporated in international human rights law through the interpretation of international human rights treaties (such as the right to property under the American Convention on Human Rights) and through customary international law (such as the right to non-discrimination313, and the adoption of the

Declaration as domestic law,314 the reference to the Declaration by domestic courts,315 and by international bodies316).

The Declaration is a benchmark to against which State compliance with its commitments towards indigenous peoples can be assessed. Therefore the Declaration can also be referenced within domestic legal systems.317 Moreover, the instrument is promotes the enforcement of rights by States. Therefore, States and their judiciaries cannot ignore the existence of such an important document. The Declaration provides impetus for innovations in domestic legislation and State practice regarding indigenous peoples. The outstanding and historic Supreme Court decision in Maya acknowledged the land rights of indigenous peoples based on Belize's Constitutional

313 CERD observation on the USA in the Western Shoshone case. 314 In Bolivia the Declaration was adopted as domestic law in 2007. 315 See Belize Supreme Court case supra. 316 Saramaka People v. Suriname, Serie C. Case No. 172, Sentence 28 November 2007, Inter-Am. Ct.H.R. 317 Maya Indigenous Communities of the Toledo District v. Belize, Case No. 12.053, Decision 12 October 2004, Inter-Am. C.H.R. Report No.40/40. Law and on International Human Rights Law. The recognition of such rights by the national Supreme Court of Belize with reference to international human rights law and the UN Declaration strongly influenced the outcome of the case. VI - Human rights for the protection of indigenous peoples' lands in Brazil According to the 1988 Constitution, the protection of human dignity is a fundamental Constitutional principle just like the democratic regime, the division of powers, and the universal suffrage. 318 The Constitution determines the immediate applicability of norms that define the fundamental rights and guarantees. 319 However, the implementation of human rights, and particularly those relating to indigenous peoples land rights, is still problematic in Brazil.

Social and political resistance regarding indigenous peoples' right to land as a human rights is rooted in discrimination. This discrimination limits the reach of

Constitutional Article 231. Although Article 231 encompass human rights dimensions within its scope, indigenous peoples' land rights are subject to political and economic pressures because it is placed in stark opposition to the interests of the country's rural elite, and are not perceived to be matters of human rights.

The indigenous quest for traditional lands-in contiguous areas-are not deemed to be consistent with agrarian reform to improve the distribution of land.

Therefore, indigenous traditional lands tend to be re-seized and even subject to trade negotiations. Only by viewing Indigenous land rights through the lens of human rights can the cultural significance of indigenous territories be respected. These lands are not mere economic assets. Indigenous lands have a special meaning and cultural and spiritual values for indigenous peoples that must be respected according to

318 See FLA VIA PIOVESAN' DIREITOS HUMAN OS E O DIREITO CONSTITUCIONAL INTERNACIONAL ( 1997), for a detailed study of the Brazilian Federal Constitution of 1988 and International Human Rights Treaties; the way the Constitution has opened the country to the international arena of human rights protection; and the contribution of international human rights law to the strengthening of the country's Constitution. The interdisciplinary study - a mix and interaction of Constitutional Law and International Human rights Law towards the same goal: the protection of human dignity - 1s a reaffirmation of the so called International Constitutional Law. 319 Constituic;:ao da Republica Federativa do Brasil de 1988 [CF88], art. 5, § 1. domestic and international laws.320

The 1988 Brazilian Federal Constitution established the primacy of human dignity and guarantees of fundamental rights in the domestic legal order. 321

Fundamental rights and freedoms are enumerated in a non-exhaustive list in Article 5 of the Brazilian Constitution, often inspired by the language of international human rights instruments.322 In fact, Article 5 states that the rights and guarantees explicitly enumerated in the Constitution do not exclude other rights derived from the constitutional regime and other principles adopted, including in international treaties to which Brazil is party.323 The Constitution establishes that everyone is equal before the law without distinction of any nature and that ensures inviolability of the right to life, freedom, equality, security, and property. With respect to the right to property, the Constitution affirms that property shall observe its social purpose.324

Therefore, the protection of indigenous peoples' fundamental rights­ including their right to lands-is properly protected under Article 5 of the

Constitution as a fundamental right to life and property, even if there are no specific provisions for that in the Constitution. International human rights treaties and bodies have recognized indigenous peoples' right to lands in the context of the right to property, adding cultural and collective aspects to that individual right.325

Human Rights Protection and the right to lands

In 2007, the the UN General Assembly adopted the United Nations

320 See supra Chapter II. 321 FLAVIA PIOVESAN, DIREITOS HUMANOS E O DIREITO CONSTITUCIONAL INTERNACIONAL, 61 (1997). Reference to the inclusion of the individual rights and guarantees as one of the clausula petreas, or immutable nucleus of the Constitution. Constituii;;ao da Republica Federativa do Brasil de 1988 [CF88], art. 60. 322 Constituii;;ao da Republica Federativa do Brasil de 1988 [CF88], art. 5 III. 323 Constituii;;ao da Republica Federativa do Brasil de 1988 [CF88], art. 5 § 3 324 Constituii;;ao da Republica Federativa do Brasil de 1988 [CF88], art. 5, XXII and XXIII. 325 See supra Chapter V. Declaration on the Rights of Indigenous Peoples. 326 The Declaration added to the established jurisprudence of the Inter-American system of human rights and the practice of the UN Human Rights Committee and UN CERD Committee,327 Brazil voted in favor of such adoption. The Declaration applies and interests existing human rights standards to the specific context and reality of indigenous peoples. 328 In that

Declaration, the States affirmed the consensus on the recognition of several fundamental indigenous rights, including the right to lands-based on the principle that indigenous peoples are equal to all other peoples and have the right to be different

[distinct cultures?]. 329 Likewise the human rights aspects of indigenous peoples' right to lands in the 1988 Brazilian Federal Constitution should be recognized, consistent with the framework of the international protection of human rights.

Similarities

According to the 1988 Brazilian Federal Constitution, indigenous lands that are to be demarcated are those traditionally occupied by indigenous peoples. In

Brazil, the procedure for demarcating land-as established in the Constitution-does not create or destroy a substantive right and does not create an immemorial site or a traditional habitat. Rather, demarcation only clarifies the extensions and limits of indigenous land as areas necessary for their cultural survival: a fundamental right.

Demarcation is judicially enforceable at any domestic court in Brazil.330

326 UN Declaration on the Rights of Indigenous Peoples, UN Doc. A/Res/6 l/295/L67 Add. l preamble (2007). 327 See supra Chapter IV. 328 See supra Chapter V, c. 329 UN Declaration on the Rights of Indigenous Peoples, UN Doc. A/Res/61/295/L67 Add.I preamble (2007). 330 In that sense, the opinion of Supreme Court Ministro Relator Carlos Britto in the Raposa Serra do Sol case was historic to express the entire conformity of that Court's understanding of the Art. 213 interpretation with the demarcation of contiguous areas such as that one. Supremo Tribunal Federal [STF], Pet. 3388, Relator: Min. Carlos Britto, 27.08.2008, Voto do Ministro Relator Carlos Britto, http://www.stf.jus.br/portal/processo/verProcessoAndamento.asp. The Constitution incorporates socio-cultural aspects in the definition of indigenous lands, aiming to protect indigenous peoples' continuity and cultural survival. An equivalent concept has been reaffirmed in international jurisprudence on human rights. 331 In addition to the recognition of land tenure, the Brazilian

Constitution establishes the obligation upon the State to hear the affected indigenous communities before Congressional authorization of exploitation and use of the natural resources in indigenous land takes place. The Constitution also aims to safeguard the participation of indigenous peoples in the profit of such activities. 332 Both constitutional provisions were later supported by the incorporation of ILO Convention

No. 169 into the domestic legal order.333

Differences

Although sharing similar concerns and principles, domestic and international laws can be contrasted in terms of the definition and extent of protection dispensed to indigenous peoples' right to lands. For instance, unlike international human rights law, in Brazil indigenous lands are not titled as collective property to indigenous peoples but as patrimony of the Union.334

Under domestic Brazilian law, Indigenous peoples have the permanent and exclusive right to possess and use the lands and its natural resources but cannot alienate (sell, transfer or rent) the land because the Federal government holds ownership rights over the indigenous lands. 335 The constitutionally-defined

331 Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Case No.11.577, Judgment of 21 August 2001, Inter-Am. Ct. H.R. (ser. C) No. 79, and Sawhoyamaxa Indigenous Community v. Paraguay, Case No.322, Judgment of29 March 2006, Inter-Am. Ct. H.R. (ser. C) No.146. 332 Constitui<;ao da Republica Federativa do Brasil de 1988 [CF88], art. 23 l, § 3. 333 UN International Labour Organization Convention Concerning Indigenous and Tribal Peoples in Independent Countries No. 169, art. 15 (2) (1989). 334 Constitui<;ao da Republica Federativa do Brasil de 1988 [CF88], art. 20, XI and art. 49, XVI. 335 Constitui<;ao da Republica Federativa do Brasil de 1988 [CF88], art. 231 conferred only partial ownership of indigenous lands by the State represents a special feature of titling and imposes some restrictions to indigenous peoples' property rights in Brazil. Although challengeable in some cases, the imposed restriction on ownership rights have been defended in Brazil as a means of better protecting indigenous lands. 336

Arguably, the restrictions on the alienation of lands and the exploitation of some of the natural resources therein found should not affect the constitutional scope of protection of the right of indigenous peoples to self-determination. In fact, to date indigenous claims have not contested the restrictions on property rights rather the focus has been upon the lack of implementation and enforcement of the said right.

Thus far, the Union's ownership rights over indigenous lands have not been identified as a threat to indigenous lands and to indigenous peoples' self-determination.

However, once demarcations are concluded and indigenous peoples regain real control over their traditional lands, conflicts may arise in regard to that limited property right. For instance, the lack of respect for indigenous traditional land tenures could be found if the federal government imposes culturally insensitive restrictions upon indigenous peoples' freedom in managing their lands and resources. Also, the clash of authority over the activities ( economic, cultural and even military) and development in indigenous lands could also test whether the constitutional protection is indeed similar in reach and scope as the international human rights standards promote.

The language of Constitutional Article 231 is elastic enough to be interpreted property rights for indigenous peoples, meaning permanent and exclusive possession and use of their traditional lands' soil and rivers; however, this was not a typical ownership right. According to the Brazilian Federal Constitution, the lands traditionally occupied by indigenous peoples are part of the patrimony of the Union, and Congress holds plenary power to authorize the exploitation and use of the water resources and the prospecting and mining of mineral resources. 336 Generally, indigenous peoples are in a more vulnerable economic and social condition and, without the interference of the State, could be forced to give up on their land rights. Therefore the justification for partial ownership rights to indigenous peoples. and harmonized with international human rights standards such as the ones affirmed in the UN Declaration on the Rights of Indigenous Peoples and the ILO Convention

No. 169. If the constitutional right to land is not yet in complete harmony with international standards, it does not mean that it could not happen. In fact, according to the Brazilian legal system and Brazil's international commitments, that is not only possible but also required to take place.

Implementation of indigenous peoples' right to lands

In Brazil, despite the initial implementation of indigenous peoples' right to lands through demarcation, in practice, indigenous peoples still face heavy discrimination in law and policy. Such discrimination prevents indigenous peoples from safely accessing their land and natural resources and from fully exercising their territorial rights as recognized in the Constitution.337 Violation of indigenous peoples' constitutional right to lands is exacerbated by the lack of consistent affirmation and enforcement of that fundamental right in Brazilian courts. Therefore, indigenous peoples' right to lands cannot be considered to be fully implemented on the ground if there is no judicial enforcement of that right.338 Not surprisingly, the

State's failure to comply with its obligations to protect indigenous peoples' rights under international law is often related to the incongruent practice of the judiciary and the Executive, and the lack of enforcement of constitutional and international human

337 FINAL INDIGENOUS REPORT FROM V ACAMPAMENTO TERRA LIVRE, Abril lndigena 2008, available at: http://www.coiab.com.br/coiab.php?dest=show&back=noticia&id=69&tipo=N &pagina= 11. See also supra Chapter IV, d and e. 338 Considering the duty of States to implement international norms, Professor Anaya summarizes" ... the judiciary may play an important role in the implementation of international norms, even within the bounds of limited judicial competency to directly invoke te norms or enforce them against the political branches of government. And ... the political branches themselves must be attentive to applicable international norms and should serve as conduits for the norm's implementation. Ultimately, the state as a whole is bound to indigenous rights standards embodied I or derivative of treaties to which the state is a party as welll as to those standards now part of customary international law. A special, affirmative duty under international law enjoins states to adopt the measures necessaries, through their various competent institutions, to give practical meaning to indigenous peoples' rights.", S. JAMES ANAYA, INDIGENOUS PEOPLES IN INTERNATIONAL LAW, 199-200 (2004). rights laws.339

It was only in 2008-twenty years after the adoption of the Brazilian Federal

Constitution-that the Federal Supreme Court took charge of cases involving meritorious, substantive issues regarding indigenous land rights.34°Consequently, the

Supreme Court promoted discussion in the Brazilian society about the demarcation of indigenous lands, the discrimination and violence perpetrated against indigenous people, the conflicting economic and political interests that affect the protection of minority cultures and indigenous lives, and initially reaffirmed that respect for cultural diversity in the country were necessary.341

Developments in international human rights law provide inspiration for better policies to enforce indigenous peoples' right to lands under the Brazilian Constitution.

Human rights principles and values relate the right to land and the right to non­ discrimination of indigenous peoples as the contemporary alternative to overcome colonialism. 342 The main legal arguments for the use of and reference to international human rights law for indigenous land rights cases-based on the Federal Constitution and on general principles of international law-are:

I. International law can be a tool to interpret the constitution

because, domestically and internationally, the common goal of these

instruments is to protect the integrity of indigenous peoples' lives and

cultures.

339 See Chapter IV, a. 340 See Chapter IV, c. 341 Supremo Tribunal Federal [STF], Pet. 3388, Relator: Min. Carlos Britto, 27.08.2008, Voto do Ministro Relator Carlos Britto, http://www.stf.jus.br/portal/processo/verProcessoAndamento.asp. 342 See supra Chapter III, e. II. international human rights law imposes obligations upon the

State once incorporated into the domestic legal system, and it can be directly

applied as law in domestic cases.

a. International Human Rights Law and the Brazilian Legal Order The 1988 Brazilian Federal Constitution affirmed the State's commitment to the international order,343 incorporated international human rights treaties in the national legal system,344 and determined the competence of the President to ratify international treaties. 345 In 2004, Constitutional Amendment 45 further regulated the incorporation of international human rights treaties and defined their constitutional status. 346 Constitutional Amendment 45 also raised the possibility of acceptance of the Jurisdiction of an International Criminal Tribunal by the Brazilian State.347

Although not yet applied in case law to recognize indigenous peoples' rights as ihuman rights, Constitutional Amendment 45 has defined some aspects of justiciability and the direct application of international human rights treaties domestically.

i. The problem of justiciability of rights On one hand, international human rights instruments were inspired by the

343 Constituic;:ao da Republica Federativa do Brasil de 1988 [CF88], Preamble: "N6s, representantes do povo brasileiro, reunidos em Assembleia Nacional Constituinte para instituir um Estado Democratico, destinado a assegurar o exercicio dos direitos sociais e individuais, a liberdade, a seguranc;:a, o bem­ estar, o desenvolvimento, a igualdade e a justic;a como valores supremos de uma sociedade fratema, pluralista e sem preconceitos, fundada na harmonia social e comprometida, na ordem intema e intemacional, com a soluc;:ao pacifica das controversias, promulgamos, sob a protec;:ao de Deus, a seguinte CONSTITUI<;AO DA REPUBLICA FEDERATIVA DO BRASIL. 344 Constituic;:ao da Republica Federativa do Brasil de 1988 [CF88), art. 5, §§ 1 and 2. 345 Constituic;:ao da Republica Federativa do Brasil de 1988 [CF88], art. 84, VIII. 346 Constituic;:ao da Republica Federativa do Brasil de 1988 [CF88], art. 5, §3 "The international treaties and conventions on Human Rights which are approved, in each House of National Congress, in two rounds, by three fifths of votes of the respective members, will be equivalent to Constitutional Ammendments." Added by Emenda Constitucional n.45 [Constitutional Amendment No.45] (2004). 347 Constituic;:ao da Republica Federativa do Brasil de 1988 [CF88], art.5 §4: "Brazil shall be submitted to the jurisdiction of International Penal Tribunal to which creation it had manifested agreement." Added by Emenda Constitucional n.45, (2004). fundamental agreement of the need to protect universal rights for human dignity348 and to develop a more adequate and equalitarian relationship between States and individuals.349 On the other hand, international human' rights law has also been challenged for its lack of justiciability.350 In some countries, international human rights law has been relegated to diplomatic commitments without immediate applicability or direct consequences on the ground. However, to guarantee some effectiveness to human rights at the international level, international human rights bodies were given jurisdiction to monitor States' compliance with human rights treaties they have ratified. 351

When a violation of human rights guaranteed in a ratified treaty or customary law takes place, the State is breaching an international obligation. It is not just a political commitment. States that violate their obligations respond internationally and are sometimes ordered to pay compensatory damages and to undertake recommended remedial actions, or both. Nonetheless, compliance with international human rights law, including the recommendations of international monitoring bodies' and court decisions may be insufficient to protect indigenous rights. Some still argue that compliance is voluntary--it is a programmatic commitment rather than a legal obligation of the State. Therefore, the most effective use of international human rights law has proven to be through the incorporation and actual application of international law and standards into domestic legislation and enforced at domestic courts.

348 See more on the definition of human dignity according to Humanism principles. ANTONIO AUGUSTO CAN(:ADO TRINDADE, A HUMANIZA<;:AO DO DIREITO INTERNACIONAL (2006). 349 The protection of indigenous peoples' right to self-determination in international law-meaning the control over their own lives, cultures and lands-is in recognition of a more egalitarian relationship between indigenous peoples and States. See S. JAMES ANAYA, INDIGENOUS PEOPLES IN INTERNATIONAL LAW, 97-184 (2004). 350 YUVAL SHANY, How Supreme is the Supreme Law of the land? Comparative Analysis of the influence of international human rights upon interpretation of constitutional text by domestic courts, 13 BROOK. J. INT'L. L. 2, 2006 351 See supra Chapter V. Incorporation of international human rights law

In many countries the use of international human rights law has been subjected to political criticism and restricted to incremental standards for domestic policy rather than part of the mandatory domestic legal order. Some States fear, for instance, that the immediate applicability of international human rights law right after ratification of an international treaty threatens the sovereignty of the State and disrespects the national democratic system. Thus, the incorporation and status of international treaties are crucial and have been discussed by States as Constitutional issues.352

In Brazil, the incorporation and the constitutional status of international human rights law have been formally established, although yet to be reaffirmed and enforced by domestic courts. One of the prominent reasons advanced for the reluctance of Brazilian courts to use international human rights law is the lack, or unclear, regulation of the status and reach of international human rights law.

Interpretations of the Federal Constitution in favour of the use of international human rights law, based on the analyses of the ideals within the constitution-making process in 1988 and of Brazilian political developments regarding its foreign policy, have not been sufficient to convince lawyers and judges to develop the use of international human rights law in Brazil. Therefore, it is important that prior to dealing with cases concerning human rights, domestic courts must define the legal status of international human rights law. Also, one has to consider that the significant weight of social and political resistance to the use of human rights standards and international legal instruments in Brazil has influenced the slow pace of implementation of indigenous

352 In that respect, the progressive position of the Argentina's Constitutional reform to incorporate international human rights treaties is particularly noted. That country's initiative promotes the harmony among sovereignty, strong democratic institutions and the applicability of international human rights law. See JANET KOVEN LEVIT, The Constitutionalization of Human Rights in Argentina: Problem or Promise?", 37, COLUM. J. TRANSNAT'LL., 1998-1999. rights through public policies and jurisprudence of rights enforcement.

ii. The doctrine of constitutional status and self-execution of international human rights law Due to the relevance of human rights in the Brazilian Federal Constitution, questions on the status of, and the procedures for incorporating, international human rights treaties have been raised in Brazil. 353 International human rights treaties are considered to be in a superior position relative to other international treaties and hold special status. However, scholars, lawyers and judges have had divergent opinion on the status of those treaties to be constitutional, equivalent to constitutional, or just hierarchically superior to ordinary non-constitutional law. 354

Brazilian scholars support the humanist approach to international human rights law. 355 Consequently, they reject the monist-versus-dualist approach for the incorporation of international human rights treaties in the domestic legal order.

According to the humanist view, due to its content and importance for the protection and promotion of human dignity, international human rights law should be incorporated into the domestic legal system as a mandatory and immediate rule aimed at the better protection of humankind.356

According to the most significant group of human rights scholars, adopting the humanist view, a systematic analysis of the Brazilian constitution and the special constitutional protection of human rights-belonging to the core value357 of the

Brazilian State-leads to the conclusion that international human rights treaties have

353 FLAVIA PIOVESAN, DIREITOS HUMANOS E DO DIREITO CONSTITUCIONAL INTERNACIONAL (2006) & ANTONIO AUGUSTO CAN<;::ADO TRINDADE, A HUMANIZA<;::Ao DO DIREITO INTERNACIONAL (2006). 354 See VALERIO DE OLIVEIRA MAZZUOLI. TRATADOS INTERNACIONAIS: COM COMENTARIOS A CONVEN<;::Ao DE VIENA DE 1969. 2a ed. Rev., amp!. Ed Atual. Sao Paulo. JOSE FRANCISCO REZEK, DIREITO INTERNACIONAL PUBLICO: CURSO ELEMENT AR 9a ed., rev. Sao Paulo: Saraiva, (2002) & MIRTO FRAGA. 0 CONFLITO ENTRE TRATADO INTERNACIONAL E NORMA DE DIREITO INTERNO: ESTUDO ANALITICO DA SITUA<;:A.O DO TRA T ADO NA ORD EM JURIDIC A BRASILEIRA ( 1998). 355 For instance, Professors Antonio Augusto Can9ado Trindade, Flavia Piovesan and Oscar Vilhena. 356 ANTONIO AUGUSTO CAN<;:ADO TRINDADE, A HUMANIZA<;:A.O DO DIREITO INTERNACIONAL (2006). 357 Constitui9iio da Republica Federativa do Brasil de 1988 [CF88], art.4 (II). the status equal to constitutional rights and are of immediate applicability.

The Brazilian Federal Constitution of 1988 affirmed that the fundamental rights enumerated in Article 5 are not limited and do not exclude rights established in international treaties.358 Therefore, international human rights treaties ratified by the

State can be interpreted as possessing the same constitutional status and worth of the immediate applicability conferred upon the fundamental rights enumerated in Article

5. Thus, human rights standards established in ratified international treaties would be protected as clausula petrea and can not be abolished by any law-or constitutional amendments-even though a treaty could be denounced by the State in international procedures in order to for its provisions to be excluded from the domestic legal system. 359 In this case, the State could still be bound by customary international law if the rights have crystallized into international customary law.

The constitutional nature of international human rights treaties ratified by the

State thus demands their immediate applicability in the domestic legal order.360

Accordingly, once ratified by the President, international human rights treaties would be immediately applicable, only subject to the rule of the most protective norm to be applied to the individual in a concrete case. 361 In other words, unlike non-human rights international treaties, the incorporation of international human rights treaties within the Brazilian legal system would not depend on the ratification of a domestic law or on any other act of Congress. Nor would it be subject to other norms of applicability but only to the humanist principle of safeguarding the individual

358 Constituii;ao da Republica Federativa do Brasil de 1988 [CF88], art.5 §2. 359 Constituii;ao da Republica Federativa do Brasil de 1988 [CF88], art.60, §4 (IV). 36°Constituii;ao da Republica Federativa do Brasil de 1988 [CF88], art. Art.5 § 1 361 FLAVIA PIOVESAN, D!REITOS HUMANOS E O DIREITO CONSTITUCIONAL INTERNACIONAL, 123 (1997). protection.362 The rule of the most protective norm 1s that the domestic or international law will prevail if it is the most beneficial for the individual.

Finally, from the moment of treaty ratification by the President of Brazil, treaties are self-executing and their enforceability does not depend upon additional legislative acts. 363 The Brazilian System of incorporation of international treaties is considered mixed as it follows the monist tradition for international human rights treaties and dualism for all the other international treaties.

Arguably, customary international law should be equal in status to ratified human rights treaties within Brazilian domestic law. That is because the systematic interpretation of the Brazilian Federal Constitution in favour of fundamental rights and freedoms is equally applicable to customary international law regarding fundamental rights. In fact, due to its relevance for human dignity, international customs are sources of International Law.364 They establish obligations erga omnes for the States and do not depend on ratification through international treaties.

Therefore, the Brazilian special status and constitutional protection of the fundamental rights and freedoms established in Article 5 of the Constitution should also encompass the rights protected by customary international law in addition to those affirmed in international human rights' treaties.

In summary, according to the human rights doctrine in Brazil, international human rights treaties-as well as customary international law-are automatically incorporated into the domestic legal order because they are consistent with the

Constitution Article 5. The distinction between international human rights treaties

362 In Brazil, other rules of applicability os statues are: the most recent norm prevails over the older norm, specific norm prevails over general norms, and constitutional norm prevails over ordinary norm. 363 FLA VIA PIOVESAN, DIREITOS HUMAN OS E O DIREITO CONSTITUCIONAL INTERNACIONAL, 133-111 (1997). 364 Statute of the International Court of Justice art. 3 8( 1) (1946). and other international treaties is justified as human rights treaties go beyond establishing equilibrium and reciprocity among States and uphold universal principles of human dignity.

Consequently, individuals should be able to evoke the protection of international human rights from the moment of the treaty ratification without having to wait for domestic legislation of incorporation. In addition, domestic norms that are not compatible with the international human rights treaty adopted would be immediately invalidated once the international human rights treaty enters into force.

Moreover, judicial decision that contradicts or violates a ratified international human rights treaty could also be challenged under provisions of constitutional law.

Domestic federal courts would be responsible for declaring void and unlawful any act that violates an international treaty, and for ordering compensation to the victims if applicable.

Under this doctrine, if a constitutional provision contradicts the international human rights provision, the Court should apply the norm most beneficial norm to the individual (or the collective in the case of indigenous peoples and minority groups).

If the Constitution is silent or has not fully covered the human rights protection, international human rights shall complement it. Indigenous peoples right to lands, as recognized in the Constitution, would therefore receive additional legal protection from the ratified international human right treaties such as ILO No.169, Inter­

American Convention on Human Rights, the ICERD, the ICCPR, and the ICESCR.

Indigenous peoples' right to lands should be enforced by domestic courts, considering both national and international laws. In doing so, the State would be adequately responding to its constitutional and international obligations. b. Direct application of international human rights treaties as domestic laws International human rights law can fill in the gaps of the domestic legal system in areas that have not been adequately developed-for instance, the enforcement of indigenous peoples' rights.365 International laws and bodies have guided States to ensure the best protection of the human being, free from discrimination and oppression through legislation and policy.

Besides being a tool to interpret the Constitution,366 ratified international human rights treaties and customary international law establish international human rights obligations upon States.367 Brazil has committed domestically (through the

Constitution) and internationally (through ILO No.169, the ICERD, the ICCPR, the

Inter-American Convention on Human Rights, and the Universal Declaration on

Human Rights and the UN Declaration on the Rights of Indigenous Peoples) to promote and protect the human rights of indigenous peoples. 368 Therefore, the lack of protection for indigenous lands and natural resources, as well as the discrimination and violence that arise with the lack enforcement of that right, constitute violations of the Constitutionally and internationally recognized right to lands of indigenous peoples. 369

The CERD has recommended that Brazil "adopt fair and equitable solutions for the demarcation, distribution, and restitution of land. To those ends, where land disputes are concerned, everything possible should be done to prevent discrimination

365 s. JAMES ANAYA, INDIGENOUS PEOPLES IN INTERNATIONAL LAW, 49-96 (2004). See also supra Chapter Ill, e and Chapter IV. 366 See infra Chapter VI, c. 367 See supra Chapter V. 368 See supra Chapter Ill and V 369 See UN OHCHR, Working Paper on Indigenous Peoples and their Relationships to the Land by Mrs Erica-Irene A. Daes, Special Rapporteur 1996- 2001, UN Doc. E/CN.4/Sub.2/2001/21 (11 June 2001) (Updated final version); UN CERD, Report UN Doc. A/62/18 §25&26 (2007); Inter-Am. C.H.R, Annual Report 2004,0EA/Ser.LN/ll.122, Doc. 5 rev. 1, Chapter 3 (2005). against indigenous people, blacks, or mestizos by the big landowners. "370 The UN

Human Rights Committee expressed its particular concern "over the existence of

racial and other discrimination against black and indigenous persons. It noted that the

Government has been pursuing a process of demarcation of indigenous lands in Brazil

as a means of addressing the rights of the indigenous communities. However, it

regretted that the process is far from completion."371

Aside from the initial administrative measures to implement indigenous

peoples' land rights, legislation and legal standards compatible with the State's

domestic and international human rights commitments are yet to be observed in

Brazil. Domestic courts have an international duty to comply with the country's

international human rights obligations, just as the Executive and Legislative have the

duty to implement international norms.372 The right to adequate and effective judicial

procedures to address human rights violations is an international human right itself. 373

Thus, domestic courts may be acting m violation of the State's human rights

obligations by failing to give effect to international human rights standards.

Internationally, the State is obliged to provide adequate and effective judicial

procedures to address indigenous peoples' human rights claims.374

370 UN CERD, Concluding Observations: Brazil, UN Doc. CERD/C/304/Add.l l, §20, (27.09.1996) & UN CERD, Concluding Observations: Brazil, UN Doc. CERD/C/64/C0/2 (12.03.2004). 371 UN Hum. Rts Committee, Concluding Observations: Brazil, UN Doc. A/51/40,§320 (24.07.1996). 372 S. JAMES ANAYA, INDIGENOUS PEOPLES IN INTERNATIONAL LAW, 185-194 (2004). 373 "In general, legally binding international human rights standards should operate directly and immediately within the domestic legal system of each State party, thereby enabling individuals to seek enforcement of their rights before national courts and tribunals. The rule requiring the exhaustion of domestic remedies reinforces the primacy of national remedies in this respect. The existence and further development of international procedures for the pursuit of individual claims is important, but such procedures are ultimately only supplementary to effective national remedies." UN Comm. ESCR, The domestic application of the Covenant, UN Doc. E/C.12/1998/24, CESCR General Comment 9 (03.12.1998). 374 Universal Declaration of Human Rights, art. 8 (1945); American Convention on Human Rights, arts. 8, 25 (1969); ICCPR arts.2, 14, 26 (1966). i. The contrary jurisprudence of the Brazilian Federal Supreme Court Despite the arguments in favour of incorporating international human rights treaties under the human rights principles of 1988 Brazilian Constitution, the

Brazilian Federal Supreme Court has established jurisprudence contrary to the doctrine of immediate applicability and self-execution of international human rights treaties. Until 2004, the Supreme Court referred to its jurisprudence of the 1970s, according to which international treaties, including human rights international treaties, were not self-executory but dependant on the dualist procedure of incorporation into the domestic legal order: that is, ratification of the international treaty and formal acceptance through a domestic legislative act.375

According to that jurisprudence, the incorporation procedure of international treaties would start with the accession to, or the presidential signature of, the international treaty, followed by approval of the treaty by a simple majority Congress, and end with the ratification of the treaty in a Presidential Decree. 376 After incorporation into the domestic legal system-as understood by the jurisprudence of the Brazilian Federal Supreme Court until 2004-international human rights treaties, like any other international treaty, would not be conferred constitutional status.

Instead, treaties only had the equivalent force of federal statutes (lei ordinaria). Thus, they were subordinated to the Constitution and its amendments.377 Consequently, conflicts between an international treaty and another federal statute would be resolved using either the chronological criteria or the particularity criteria. Under the chronological criteria, the more recent of two conflicting laws controls. Under the

375 Decision considering the Geneva Convention in Brazil. Supremo Tribunal Federal [STF], RE 80.004-SE, Relator: Min. Xavier de Albuquerque, 01.06.1977 D.J. 29.12.1977. 376 Constitui9ao da Republica Federativa do Brasil de 1988 [CF88], art.49 (I) and art.84 (Vlll). 377 Decision on the applicability of the imprisonment for debts, despite the provision of the Inter-Am. Convention art. 7(7). Supremo Tribunal Federal [STF], HC 72.131-RJ, Relator: Min. Moreira Alves, 23.11.1995, D.J. 01.08.2003; and similar RHC 79.785, Rel. Min. Sepulveda Pertence, DJ. 22.11.2002. particularity criteria, the more specific and relevant of two conflicting law controls.

According to that traditional Supreme Court interpretation of the Constitution, contrary to the humanist theory, constitutional law would always prevail over any international treaty in its conflicting parts regardless of considerations of the most beneficial norm to protect the individual.378 The Court understood that although international human rights treaties could add fundamental rights to the list of Article 5 of the Brazilian Federal Constitution, those additional rights did not have equivalent const1tutlona. . 1 status. 379

And because of the infra-constitutional status of human rights treaties, the

Supreme Court also understood that those treaties could not address issues specifically reserved to be regulated by complementary constitutional law (lei complementar). This is particularly because the procedure of incorporation of human rights treaties-through accession, simple majority of Congress and presidential ratification-was believed to be lacking due process. The consultation and decision by Congress and Senate is considered the foundation of the democratic constitution and therefore the only legitimate way to pass a complementary law (approved by the super-maJonty. . o fC ongress )3so.

378 According to that Supreme Court finding, the Brazilian Federal Constitution prevails over any interntional convention or treaty, including of human rights. Therefore international norms that are contrary to the constitutional provisions on the same issue are not applicable in Brazil. The superior hierarchy of the Constitution is grounded on the differentiated and stricter legislative procedure for the incorporation of the norm. See Supremo Tribunal Federal [STF], RHC 79.785, Rel. Min. Sepulveda Pertence, DJ. 22.11.2002. 379 The Supreme Court debate referred mostly to the contraposition of the Brazilian Federal Constitution and the norms established in the American Convention on Human Rights on detention for debt; in the ICCPR regarding double jeopardy; and in the ILO Convention No. 158 against arbitrary firing of employees. Supremo Tribunal Federal [STF], RHC 79.785, Rel. Min. Sepulveda Pertence, DJ. 22.11.2002; HC 88420-PR, Relator: Min. Ricardo Lewandovski, 17.04.2007, D.J.08.06.2007. 380 Supremo Tribunal Federal [STF], HC 72.131-RJ, Relator: Min. Moreira Alves, 23.11.1995, voto Min. Nelson Jobim, D.J. 01.08.2003. ii. The Position of the Federal Supreme Court After the 1988 Constitution and Constitutional Amendment 45 Much has changed since the 1970s. Changes at the Federal Supreme Court have been prompted by the 1988 Constitution. In more recent opinions, dissenting

Justices of the Federal Supreme Court advanced interpretations of Article 5, paragraph 2 of the 1988 Brazilian Federal Constitution that accepted the incorporation of international human rights treaties into domestic law due to their self-execution character.381 Although dissenting voices, these justices affirmed the supra-legal382 status of international human rights treaties because of their "powerful support of the interpretation of the constitution, serving to the better efficacy of the constitutional text". 383 After 2004, with the adoption of the Constitutional Amendment n.45, 384 the

Supreme Court was pushed to recognize the constitutional status of international human rights treaties in accordance with to the spirit of the 1988 Constitution.385

The Constitutional Amendment 45: uncertainties and possibilities

The Constitutional Amendment 45 of 8 December 2004,386 was approved in the context of the Brazilian judiciary reform aimed at the modernization of the

Brazilian judicial system. The judiciary reform was designed to achieve a better functioning judiciary. The judiciary had lacked credibility due to its difficulties in accessing courts and their inefficient responses. Among the most relevant changes wass the inclusion of a third paragraph to Article 5 which now reads: "The

381 See Supremo Tribunal Federal [STF], HC 72.131-RJ, Relator: Min. Moreira Alves, 23.11.1995, dissenting opinion Min. Carlos Velloso D.J. 01.08.2003; and similar dissenting opinion in HC 82424. 382 The supra-legal status would be hierarquically superior to ordinary statues and could comprise infra­ constitutional, constitutional status or supra-constitutional status. 383 Supremo Tribunal Federal [STF], RE 466.343-SP, Relator: Min. Cezar Peluzo, 13.08.2008, dissenting opinion Justice Gilmar Mendes, pending final decision. 384 The Constitutional Amendment n.45 added §3 to Art. 5 of the 1988 Brazilian Federal Constitution. See Emenda Constitucional n.45 [Constitutional Amendment n. 45], 08 December 2004, D.O.U. 31 December 2004. 385 Federal Supreme Court, HC 87 .585-TO, Relator: Min. Carlos Alberto Menezes Direito, dissenting opinion Justice Celso de Mello; & RE 466.343-SP, Relator: Min. Cezar Peluzo. 386 Emenda Constitucional n. 45, 08 December 2004, D.O.U. 31 December 2004. International treaties and conventions on human rights approved in each House of the

National Congress, in two readings, by three fifths of their members, will be equivalent to a Constitutional amendment".

The Constitutional Amendment 45 confirmed that an international human rights treaty could receive constitutional status and be protected as a clausula petrea, 387 which is similar to a constitutional amendment. This position had previously been rejected by the majority of the justices of the Federal Supreme Court.

However, according to the 2004 amendment, constitutional status is to be conferred only after the incorporation of the international human rights treaty into the domestic legislation. The Constitutional Amendment established the special procedure of the approval by the super-majority of the full Congress and Senate houses, in addition to the presidential ratification, for the incorporation of international human rights treaties into domestic legal system.

The amendment reflected the traditional old-fashioned position of the Federal

Supreme Court, making the status of human rights treaties conditional upon the approval of a demanding Congressional vote. It is evident that minority and indigenous peoples are disadvantaged by this new requirement because the acceptance of collective rights related to cultural diversity is still under development. Many of those groups are under-represented in Congress and lack political support at the municipal, state and federal levels. Often, discrimination and the imposition of dominant interests indigenous rights from being protected. Coincident with the prevailing Supreme Court understanding, the Constitutional Amendment 45 did not accept the humanist doctrine to recognize the self-execution of human rights treaties.

Therefore, at the same time that the Constitutional Amendment conferred the

387 Constitui<;:ao da Republica Federativa do Brasil de 1988 [CF88], art.5, §2 and art. 4 (II). possibility of constitutional status to international human rights treaties, it also posed a heavier burden to the incorporation of those into the domestic legal order. The chance of chance of approval of human rights treaties by three-fifths of the Congress

House and Senate is low. As established, the non-immediate application of international human rights treaties may lead to conflicts between the external responsibility of the State to comply with international law and the domestic legal status of international human rights treaties.

The use of this new constitutional provision may create undesired 'classes' of human rights, which is contrary of the idea of universal and indivisible fundamental rights. The requirement that international human rights treaties be ratified by a super­ majority the Brazilian Congress before it can have status equivalent to the

Constitution can create different classes of rights. This means that there will be two classes of rights - one protected explicitly in the constitution, and another that requires super-majority ratification.

So far, it is uncertain what the status of international human rights treaties approved only by simple majority of Congress after ratification would be. Another possible problem that arises is that the status of constitutional amendment may imply the possibility for international human rights treaties to be modified or invalidated by other constitutional amendments. Significant changes in the characteristics and efficacy of international human rights treaties will arise if international human rights treaties are subject to revision by national legislative and judicial bodies.

The unclear status of international human rights treaties are an extra obstacle for the use of, and reference to, international human rights law in the Supreme Court when dealing with fundamental rights. Particular arguments-although not always grounded in reason-are raised against the use of international human rights law in indigenous peoples' land rights cases. 388 Therefore, the protection of indigenous peoples' right to lands through direct application of international human rights treaties is compromised.

c. International Human Rights Law as a Tool to Interpret the Constitution Indigenous lands' issues are have been part of the State's regulation on the protection of the territory because it includes border as well as national security concerns. Thus, in addition to the procedural difficulties in the incorporating international human rights law into the domestic legal order, international law may be perceived only as a secondary source of law for indigenous land rights due to political reasons. But human rights provisions in international and in constitutional laws share common values. 389 And in the case of indigenous peoples' right to lands, the goal is to protect the integrity of indigenous peoples' lives and cultures. Therefore, international human rights law can be used at least as a tool to interpret and enforce the Constitution, if not as law once incorporated into the domestic legal system.390

Indigenous land rights are protected under the Brazilian Federal Constitution as fundamental rights. There should be no limits to the application of international human rights law as a tool to interpret the Constitution. In fact, as a result of its human rights character, important concepts such as the right to free prior and informed consent, the right to consultation, and the right to self-determination, are gradually being introduced into domestic policy and law and reaffirmed by Brazilian

Government representatives in Brazil and abroad.391

388 See supra Chapter IV, e. 389 See supra Chapter VI a. 390 See supra Chapter VI b. 391 UN Human Rights Council records: Brazil declared in 2006 that there was no doubt that the Declaration was a reaffirmation of the international community's commitments to ensure the enjoyment of all human rights and fundamental freedoms of indigenous peoples, respecting the indigenous cultures and identities. After voting for the adoption of the Declaration by the UN General Improvements of laws and policies are singular ways to balance both the protection of the State interests and the protection of indigenous peoples. The making and enforcing of law and policy that deal with indigenous issues as an issue of human rights-in additional to domestic legislation concerning territorial integrity and national security or development-contribute to balance the different values and interests involved in a land dispute. And to balance divergent interests to protect rights is a role of the State. For instance, in addition to the interests of private sectors and the states on the capital gain from the exploitation of forests and natural resources of lands, the State has to consider and protect the interest of indigenous peoples over their traditional lands. And if that interest on the land is related to the existence, survival and cultural protection of those peoples, then it is superior to commercial interests of exploitation because it regards to the protection of indigenous peoples' fundamental rights. For that matter, international law has contributes with important standards of protection of indigenous peoples rights, accepting a different way of life and another view of development.

i. Interpreting the Constitution In addition to the international commitments and obligations that arise from the ratification of international treaties by the State, international human rights standards and laws can also be used as a tool to interpret and strengthen the Federal

Constitution. The reference to and use of international human rights law is a strong, possible, and even necessary tool for the observance of the Brazilian Federal

Constitution and of the State's international commitments and obligations.

Assembly, the representative from Brazil stated that in "his country's indigenous peoples were crucial to the development of society at every level, including the development of spiritual and cultural life for all. Brazil would underscore that the exercise of the rights of indigenous peoples was consistent with the sovereignty and territorial integrity of the States in which they resided. At the same time, States should always bear in mind their duty to protect the rights and identity of their indigenous peoples." See Statement of the Brazilian representative in the Sixty First General Assembly, GA 10612, available at http ://www.un.org/News/Press/docs/2007 /gal 0612.doc.htm. Indigenous peoples' cases before domestic and international bodies have proved that international human rights law enhances the constitutional law provisions and strengthens the relations of the States with indigenous peoples.

The use of international human rights law to guide constitutional interpretation is controversial in many jurisdictions, not only in Brazil. In the United

States, one argument against the use of international human rights law to interpret the

Constitution is that such use is anti-democratic or it disrespects federalist principles.

According to that argument, the judiciary should interpret the law as formulated by democratically elected legislature and neither international human rights treaties nor foreign law are made by national legislature. In Australia, Justice Kirby's dissenting attempts to introduce a principle of constitutional interpretation consistent with human rights has been strongly resisted by other High Court judges.392

However, in the United States Supreme Court case, Roper v. Simmons, the majority of justices agreed that the United States Constitution and the international and foreign consensus regarding human rights are consistent and compatible.393 The

United States Supreme Court acknowledged the weight of the international opinion against the juvenile death penalty and recognized that international and foreign law

"does not lessen fidelity to the Constitution or pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples underscores the centrality of those same rights within our own heritage of

392 High Court of Australia, Al-Kateb v. Godwin, 2004 HCA 37, 06 August 2004. 393 The United States Supreme Court case Roper v. Simmons versed about the imposition of capital punishment for crimes committed by people under the age of 18 was unconstitutional. The Supreme Court of United States decided based on the fact that a national consensus had developed against the execution of juvenile offenders. That assertion was supported by international law (International Covenant on Civil and Political Rights) in the interpretation of the US Constitutional Eight amendment. Roper v. Simmons, No. 03-633.Argued October 13, 2004--Decided March 1, 2005 freedom". 394 Even without directly applying international law, Justice O'Connor recalled in Roper v. Simmons that international and foreign law have been used to assess the evolving standards of decency and the understanding of human dignity, and are not necessarily inconsistent with the American law's distinctiveness and specific prov1s1ons.

Because of the need to overcome discrimination and to harmonize State sovereignty with the fundamental rights of indigenous peoples in many parts of the world, the use of international human rights law can be particularly beneficial in resoling conflicts regarding demarcation and protection of indigenous lands.

International human rights law offers legitimate tools to interpret and strengthen the intent of the domestic Constitution because of the participative development of this field of law, which included indigenous peoples and indigenous organizations during the last three decades.395

In addition, there is an established international consensus among States­ including States that voted against the UN Declaration on the rights of indigenous peoples-that the denial of human dignity for indigenous peoples is no longer acceptable in the political and legal orders. For instance, Australia did not vote in favor of the UN Declaration at the General Assembly, but it has not formally denied indigenous peoples' rights domestic or internationally, although the practice has been claimed by indigenous peoples to be in violation of their rights.

ii. Indigenous Rights' Cases in Australia, Belize and Brazil Indigenous land rights' cases before Supreme Courts, in different countries, have also been influenced by international human rights law and standards. In

394 Roper v. Simmons, No. 03-633.Argued October 13, 2004--Decided March 1, 2005 395 See S. JAMES ANAYA, Indian Givers: What Indigenous Peoples Have Contributed to International Human Rights Law, 22 WASH. U. J.L. & POL'Y 107 (2006). See also S. JAMES ANAYA, INDIGENOUS PEOPLES IN INTERNATIONAL LAW, 56-57, (2004). Australia and Belize, international human rights law have been part of important attempts to be used as interpretation tools to the constitution and domestic legislation regarding indigenous peoples lands rights and fundamental rights. In Belize, the

Supreme Court was innovative enough to even refer to the UN Declaration on the

Rights of Indigenous Peoples. In Brazil, the first opinion delivered at the Supreme

Court in the Raposa Serra do Sol case went in the opposite direction in respect to the use of international human rights instruments and the UN Declaration.

Mabo (Australia)

The Australian Constitution does not contain a Bill or Charter of Rights.

Thus, constitutional protection of rights is limited in the country. Justice Kirby, in the

High Court, has attempted to develop a constitutional interpretive principle that would allow reference to international law, especially with respect to universal human rights.

According to Justice Kirby's interpretive principle, "[w ]here the Constitution is ambiguous, this Court should adopt that meaning which conforms to the principles of universal and fundamental rights rather than an interpretation which would involve a departure from such rights". 396 For instance, Kirby J considered this principle in the context of the scope of the federal government's power under section 51 (xxvi) of the

Australian Constitution to legislate with respect to "people of any race for whom it is deemed necessary to make special laws including Aboriginal and Torres Strait

Islander people."397 However, such principle has not been received well by other judges in Australia.

Despite the limited reach of international law in Australia, international human rights law influenced the recognition of indigenous land rights (native title) by the

396 Justice Kirby used this argument in Kartinyeri v Commonwealth, ( 1998) 195 CLR 33 7 § 166 397 Ibid. Australian common law in the Mabo case.398 One important way international law influenced that case was through the incorporation of International Convention on the

Elimination of Racial Discrimination provisions in the Australian Racial

Discrimination Act 1975 (Cth). 399 While this was enactment was a positive development in Australian law, due to its legislative system and the absence of a Bill of Rights, the Australian Parliament can enact legislation at any time to override the

Racial Discrimination Act. In that case, international human rights protections would be removed by domestic legislation due to the absence of safeguards within the

Australian Constitution. 400

The Mabo litigation started as a test case in 1982. In 1985, Queensland had tried to stop the Meriam indigenous peoples claim to native title over the Murray

Islands by enacting the Queensland Coast Islands Declaratory Act 1985 (Qld), which essentially declared that title to the islands had vested in the state of Queensland, free of any other interests, when the islands were annexed by Queensland in 1879. It was an attempt to retroactively extinguish any native title.

In Mabo I, the High Court found that this Declaratory Act from Queensland was invalid as it breached the Racial Discrimination Act of 1975 (Cth). Therefore, the decision in Mabo I meant that the native title litigation could proceed.401 In 1992, the

High Court of Australia delivered a landmark decision on the test case Mabo v.

Queensland, ("Mabo JI''). The Court understood that the doctrine of terra nullius had no effect in contemporary Australia law and held that the Meriam people of Torres

Strait had legal rights to their lands, as recognized by the common law.

398 Mabo and others v. Queensland (No. 2)(1992) 175 CLR 1, High Court of Australia, June 1992. 399 Because Australia is a dualist system, it had to incorporate CERD Convention into domestic law in order to apply it domestically. 400 See infra Chapter VI, d. Similar concerns are applied to the interpretation of the Brazilian Constitutional Amendment 45 (2004). 401 Under Section 109 of the Australian Constitution, federal laws preempt state law. The decision in Mabo II was shaped by international human rights standards and instruments, as identified by Justice Brennan:

Whatever the justification advanced in earlier days for refusing to recognize the rights and interests in land of the indigenous inhabitants of settled colonies, an unjust and discriminatory doctrine of that kind can no longer be accepted. The expectations of the international community accord in this respect with the contemporary values of the Australian people. The opening up of international remedies to individuals pursuant to Australia's accession to the Optional Protocol to the International Covenant on Civil and Political Rights brings to bear on the common law the powerful influence of the Covenant and the international standards it imports. The common law does not necessarily conform to international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights. A common law doctrine founded on unjust discrimination in the enjoyment of civil and political rights demands reconsideration. It is contrary both to international standards and to the fundamental values of our common law to entrench a discriminatory rule that, because of the supposed position on the scale of social organization of the indigenous inhabitants of a settled colony, denies them a right to occupy their traditional lands.402

Maya people of Toledo (Belize)

An exemplary use of international human rights law as an interpretative tool by domestic court in the context of indigenous peoples' land rights is found in the

Maya people's case.403 In 2007, a landmark Supreme Court decision was delivered.404 The Belize Supreme Court made reference to the Constitution of the country and to the UN Declaration on the Right of Indigenous Peoples when recognizing the right to traditional land and natural resources of the Maya people from Toledo. The case had also been heard at the Inter-American Commission on

402 Mabo and others v. Queensland (No. 2) [1992] HCA 23; (1992) 175 CLR 1 F.C. 92/014 High Court of Australia, June 1992, para 42. 403 Supreme Court of Belize, Claim Form, Aurelio Cal et al. (Santa Cruz Village) v. A.G., Claim No. 171 of 2007; Claim Form, Coy et al. (Conejo Village) v. A.G., Claim No. 172 of 2007. 404 S. JAMES ANAYA, The Case of the Maya Villages of Belize: Reversing the Trend of Government Neglect to Secure Indigenous Land Rights, 8 HUM. RTS. L. REV. 377 (2008) (co-author Maia S. Campbell). Human Rights,405 therefore the Justice recognized that Belize had obligations under both domestic and international laws regarding indigenous peoples right to lands.

In fact, the Chief Justice of the Supreme Court dedicated part of his opinion to discuss the obligations of the State in international law. In his view, international obligations were related to the domestic proceedings of the case because they resonate with certain provisions of the Belize Constitution. Justice A. 0. Conteh affirmed that:

"In contemporary international law, the right to property is regarded as including the rights of indigenous peoples to their traditional lands and natural resources. Belize is a party to several international treaties such as the International Covenant on Civil and

Political Rights (ICCPR) 999 U.N.T.S. 171; the Convention on the Elimination of All

Forms of Racial Discrimination (CERD), 660 UNTS 195; and The Charter of the

Organization of American States (OAS) 119 UNTS 3; all of which have been interpreted as requiring states to respect the rights of indigenous peoples over their land and resources. ,,4o6

In the Maya case, the Supreme Court decision made specific reference to international human rights recommendations and findings such as the General

Recommendation of the UN Committee on the Elimination of Racial Discrimination and the letter sent to Belize on 9 March 2007, expressing the Committee's concern

"regarding the privatization and leasing of land without the indigenous peoples prior consultation or consent as well as the granting of concessions for oil development, logging and production of hydro-electricity". The Supreme Court then called the

State to take the international communication seriously and act in conformity to its obligations under the ratified ICERD.

405 Supreme Court of Belize, Claim Form, Aurelio Cal et al. (Santa Cruz Village) v. A.G., Claim No. 171 of2007; Claim Form, Coy et al. (Conejo Village) v. A.G., Claim No. 172 of 2007, §§131-134. 406 Supreme Court of Belize, Claim Form, Aurelio Cal et al. (Santa Cruz Village) v. A.G., Claim No. 171 of2007; Claim Form, Coy et al. (Conejo Village) v. A.G., Claim No. 172 of 2007, §120. Belize's Supreme Court decision also recalled the Inter-American

Commission on Human Rights findings stating: In the Maya Indigenous Communities case supra, before the Inter-American Commission on Human Rights (an organ of the

Organization of American States of which Belize is a member) found that the rights to property protected by the OAS Charter through Article XXIII of the American

Declaration of the Rights and Duties of Man "are not limited to those property interests that are already recognized by States or that are defined by domestic law, but rather that the right to property has an autonomous meaning in international human rights law."

In this sense, the jurisprudence of the system had acknowledged that the property rights of indigenous peoples are not defined exclusively by entitlements within a state's formal regime, but also include that indigenous communal property that arises from and is grounded in indigenous custom and tradition".407 The State's international obligations regarding indigenous peoples heavily influenced the

Supreme Court of Belize in its interpretation of the country's Constitutional provisions on fundamental rights such as the rights to property, life, security of the person, protection of the law and right not to be discriminated against.

The Supreme Court of Belize went even further to note that the United

Nations Declaration on the Rights of Indigenous Peoples, embodies general principles of international law relating to indigenous peoples, their lands and resources. Also, it held that the Government of Belize should not disregard it. The Chief Justice remembered that Belize voted for the Declaration and that "in Article 42 of the

Declaration, the United Nations, its bodies and specialized agencies, both federal and state, are enjoined to promote respect for and full application of the Declaration's

407 Supreme Court of Belize, Claim Form, Aurelio Cal et al. (Santa Cruz Village) v. A.G., Claim No. 171 of 2007; Claim Form, Coy et al. (Conejo Village) v. A.G., Claim No. 172 of 2007, § 122. provision and to follow up its effectiveness."408 The Belize Supreme Court Chief

Justice concluded that the defendants (Belize's General Attorney and Ministry of

Natural Resources and Environment) were bound by provisions in domestic and international law to respect the rights and interests of the Maya indigenous community to their lands and resources.

Raposa Serra do Sol (Brazil)

In contrast, the use of and reference to international human rights instruments in the context of indigenous peoples' rights has been limited, if not denied, by the judiciary in Brazil. For instance, today the most significant indigenous rights case before the Federal Supreme Court refers to the demarcation of the Raposa

Serra do Sol indigenous land in Roraima.409 While the Federal Government ratified the demarcation of the traditional lands to the Macuxi, Wapichana, Taurepang,

Patamona and Ingaric6 peoples, the local government of Roraima and a few ranchers that moved into the area contested the Presidential act and the administrative procedure of demarcation.410 The case was brought to the Supreme Court-along with a series of actions and requests for remedies filed since the 1996-due to the conflict between the federative unit and the federal government. A Supreme Court decision will be delivered under Petition 3388 of 20 April 2005.

In August 2008, the Supreme Court held a hearing on the case. 411 Unlike

Australia, indigenous peoples' fundamental rights and their right to lands are established in the Brazilian Federal Constitution. Also, human rights treaties are

408 Supreme Court of Belize, Claim Form, Aurelio Cal et al. (Santa Cruz Village) v. A.G., Claim No. 171 of2007; Claim Form, Coy et al. (Conejo Village) v. A.G., Claim No. 172 of 2007, §132. 409 See Supra Chapter IV, e. 410 Supremo Tribunal Federal [STF] AC 2009/08, Relator: Min. Carlos Britto, liminar concedida (injunction request accepted), 09 April 2008, STF Andamento http://www.stf.jus.br/portal/processo/verProcessoAndamento.asp 411 Supremo Tribunal Federal [STF], Pet. 3388, Relator: Min. Carlos Britto, 27.08.2008, Voto do Ministro Relator Carlos Britto, http://www.stf.jus.br/portal/processo/verProcessoAndamento.asp. applicable in Brazil and prevail over domestic (non-Constitutional) law. Thus, technically and legally, indigenous peoples from Raposa Serra do Sol should have no legal impediments to enjoy their recognized rights. However, the special interests that surround the case and the area created political barriers to the enforcement of indigenous peoples' rights. Particular arguments were raised regarding the location of the indigenous lands on the border of the State and the alleged threat of international organizations in the Amazon region. Therefore, the mention by the Supreme Court

Justice regarding international law and the UN Declaration on the Rights of

Indigenous Peoples was negative in the case.

The first opinion in Raposa Serra do Sol was delivered by Justice Carlos

Ayres Britto at the Supreme Court. He voted in favor of the demarcation of the indigenous land, however, against the use of international human rights instruments.

A final decision is expected to be delivered in the next few months. On one hand,

Justice Britto interpreted the Constitution to assert indigenous peoples' right to lands in the light of humanist values and respect for cultural diversity. On the other hand, the Supreme Court Justice deemed international human rights instruments-such as the UN Declaration on the Rights of indigenous peoples-as unnecessary and o f1ens1ve,c • mstruments • to Braz1 . 1.412

Justice Britto stressed, "[I]ndeed, all indigenous lands, as referred in the

Constitution, form part of the Brazilian national territory upon which the national Law is applied. The Law from another sovereign State or the Law from any international organ, unless through convention or treaty that has the 1988 Brazilian Constitution as its validity base, do not apply".413 In Brazil, foreign law or comparative law are used

412 Supremo Tribunal Federal [STF], Pet. 3388, Relator: Min. Carlos Britto, 27.08.2008, Voto do Ministro Relator Carlos Britto, http://www.stf.jus.br/portal/processo/verProcessoAndamento.asp, § 69. 413 Supremo Tribunal Federal [STF], Pet. 3388, Relator: Min. Carlos Britto, 27.08.2008, Voto do by the Supreme Court inconsistently and sometimes regarded as collateral to the issues of the case.414

Especially within the judiciary institutions, there is a general understanding that indigenous peoples' rights are not protected under the human rights framework, and international human rights law is rarely mentioned as valid law because this is first an issue of sovereignty and national security. Also, when indigenous communities or organizations access the international human rights systems to address the serious violation of their fundamental rights neglected by the domestic legal order, numerous concerns are raised domestically to imply that access to international human rights monitoring bodies by indigenous peoples would be akin to treason, or even threatening the federal unity or sovereignty of the State.415

d. New Era of International Human Rights Law's Recognition The judiciary's reservations about applying international human rights law to the domestic courts are unfounded because international human rights instruments are in harmony with the constitutional and domestic legal orders, not against them. 416

International human rights and constitutional laws are interrelated in the Brazilian

Ministro Relator Carlos Britto, http://www.stf.jus.br/portal/processo/verProcessoAndamento.asp, § 55. 414 MARIANA CHAIMOVICH, A UTILIZA<;;AO DA JURISPRUDENCIA ESTRANGEIRA NO SUPREMO TRIBUNAL FEDERAL, (Monografia Esco la de Formayao, Sociedade Brasileira de Direito Publico) (2006) available at: http://www.sbdp.org.br/monografia/84_ Mariana%20Chaimovich.pdf. 415 See Raposa Serra do Sol case before the Inter-American Commission of Human Rights. The statement of the State on the 1 March 2007 CIDH hearing implied that indigenous peoples should not be seeking redress in an international body because the State was protecting them enough and if they complain internationally they would make it more difficult for the State to keep protecting them. Raposa Serra do Sol v. Brazil, Petition 250-04 and Precautionary Measures 818-05, Inter-Am. C.H.R, Annual Report 2004,0EA/Ser.LN/Il.122, Doc. 5 rev. 1, Chapter 3 (2005). 416 In fact, human rights have been described in Brazil as the international "projection of the fundamental constitutional principles just as the constitutional provisions of human rights are projections of international human rights law", FLA VIA PIOVESAN, DIREITOS HUMAN OS E O DIREITO CONSTITUCIONAL INTERNACIONAL, 63 (1997). See also supra Chapter VI, a for similarities of protection of indigenous peoples' right to landss under Constitutional and International Human Rights laws. legal order because both systems provide for the similar fundamental rights, including indigenous peoples' right to lands.417

In order to determine the maximum protection of human rights m Brazil, procedural obstacles must be overcome by an understanding that international human rights treaties belong to an integrated, inter-related, universal, and indivisible system that is aligned with the principles laid by the Brazilian Federal Constitution of 1988.

Thus the application of the most protective human rights norms still need to be enforced by domestic courts, including the Federal Supreme Court. And the constitutional status conferred by the Constitutional Amendment 45 to international treaties already opened a number of possibilities and points to a hopeful direction at the Supreme Court level.

The Brazilian Federal Supreme Court has declined to establish a steady position regarding the constitutional status of ratified international human rights treaties. Nonetheless, a new era for the recognition of international human rights law is emerging. For instance, the Brazilian Supreme Court has expressed its opinion in favour of accepting international human rights treaties at least in some cases and as additional interpretative tools to the Federal Constitution to protect fundamental rights and human dignity in other cases.418

However, international human rights law has not yet gained relevance in cases involving indigenous peoples' lands right before the Brazilian Federal Supreme

Court. On the contrary, international human rights instruments such as the UN

Declaration on the Rights of Indigenous Peoples were recently criticized by the

417 Constitui9ao da Republica Federativa do Brasil de 1988 [CF88], art.5, §§2 and 3. 418 Supremo Tribunal Federal [STF], ADI 1.675-MC, Relator: Min. Sepulveda Pertence, D.J. 19.09.2003. Brazilian judiciary in Raposa Serra do Sol. 419 The persistent social and political resistance of the Brazilian elite and authorities to deal with indigenous peoples land issues as a matter of human rights is, along with historical discrimination in law, at the root of the problem.

Therefore, more than ever, the Brazilian Federal Supreme Court is being urged to determine the interpretation of Article 231 of the Constitution on the right to lands, and to consolidate the application of international human rights law based on the principle of non-discrimination within indigenous peoples land rights' cases. This approach to the interpretation and application of the Constitution in indigenous land rights cases is consistent with the State's obligations under international human rights law.420

419 Supremo Tribunal Federal [STF], Pet. 3388, Relator: Min. Carlos Britto, 27.08.2008, Voto do Ministro Relator Carlos Britto, http://www.stf.jus.br/portal/processo/verProcessoAndamento.asp. 420 See Supra Chapters IV, V and VI VII - Conclusion Indigenous lands are formally protected under Brazilian and international laws

In Brazil, indigenous peoples' right to lands was first recognized in 1680 and has evolved to become a constitutional right due to character as a fundamental right.421 Under the 1988 Brazilian Federal Constitution, indigenous peoples hold exclusive and permanent rights over their traditional lands. According to the 1988

Constitution, indigenous lands are those areas traditionally occupied by indigenous people, inhabited on a permanent basis, used for their productive activities, fundamental to the maintenance of the natural resources necessary to their well-being and, to their physical and cultural reproduction according to their customs and traditions. 422

International human rights law has evolved to protect indigenous peoples' rights, respectful of their culture, customs, traditions, and social organizations as d1stmct. . peop les. 423 Such developments were possible due to the proactive role indigenous peoples assumed in transforming international law to incorporate indigenous peoples concerns and to overcome colonialism.424 In Brazil the constitutional status conferred to international human rights law strengthens the constitutional reaffirmation of indigenous peoples' right to lands.425 International human rights bodies have acknowledged indigenous peoples' special relationship with their lands and affirmed indigenous territorial rights over traditional areas, according to indigenous peoples' own customs and traditions, and sometimes even despite a lack

421 See Supra Chapter III. 422 Constitui9ao da Republica Federativa do Brasil de 1988 [CF88], art. 231. 423 See Supra Chapter IV. 424 UN Declaration on the Rights of Indigenous Peoples, UN Doc. A/Res/6 l/295/L67 Add. I (2007). 425 See Supra Chapter VI. of domestic legislation to regulate lands' demarcation.426

But yet indigenous peoples lands are not respected in Brazil

Despite the fact that legislation has, since colonial times, formally referred to indigenous peoples' originary right to lands in Brazil, on the ground indigenous peoples have suffered restrictions and violations to their right to land. Anti-indigenous ideas are raised and find support within the national institutions to deny indigenous peoples their right to lands. It is claimed that indigenous peoples threaten the State and the interests of third parties, and that the Constitution gives them "too many rights". But the situation of indigenous peoples on the ground does not reflect these alleged privileges held by indigenous peoples. Legislation alone does not guarantee immediate protection of indigenous peoples' lands, as illustrated by the cases Jacare de SaoDomingos, Patax6 ha ha hae, NandeRu Marangatu and the Raposa Serra do

Sol pending before the Federal Supreme Court.427

There is gap between formal recognition and enforcement of rights

Regulated at the convenience of the dominant sectors of the society, in Brazil indigenous land rights have not yet received effective, thorough legal protections on the same scale as the individual right to property.428 There is a troubling gap between the formal law and its enforcement.429 In spite of the constitutional provisions and the well-established international jurisprudence to protect indigenous peoples' right to lands as human rights, indigenous peoples still face disproportional difficulties m enforcing those rights before Brazilian domestic courts.

Administrative demarcation of lands in Brazil has been often challenged-and

426 See Supra Chapters IV and VI. See also indigenous land rights' cases from Nicaragua and Belize before the Inter-American System on Human Rights. 427 See Supra Chapter IV 428 See Supra Chapter III 429 See Supra Chapter IV, a. its efficacy threatened-before domestic courts. Although clearly established in the

Constitution, indigenous peoples' territorial rights face challenges before the Brazilian

Federal Supreme Court. And in the course of the legal disputes, further violations of their human rights occur. So far, the Federal Supreme Court of Brazil has not delivered any final decision to reaffirm and determine enforcement of indigenous peoples' constitutional right to lands.430 Although the Court has advanced in some procedural aspects of the numerous disputes, only recently has the Federal Supreme

Court engaged in concrete efforts to deal with the pending cases on indigenous peoples' land rights, and has done so with limited reference to indigenous peoples' human ng· h ts. 431

Domestic consequences of lack of enforcement

At the domestic level, disregard for the constitutional status of the protection of indigenous lands has created an impression among indigenous groups of judicial ineffectuality or abandonment, with consequences to the State in its domestic and international, legal and political spheres. The political and social discrimination is highly influenced by the judiciary position-and omissions-towards indigenous peoples. Injunctions to stop demarcations; to order the removal of indigenous peoples from areas identified as indigenous lands; and to allow the permanence of non­ indigenous people, have been granted by the Brazilian Federal Supreme Court. In addition, the lack of investigation and punishment of crimes committed against indigenous communities; and the disproportional delays experienced in indigenous peoples' right cases contribute to the general environment of neglect, disrespect and violation of indigenous peoples rights. 432

430 See Supra Chapter IV 431 See Supra Chapter IV, a and c. 432 See Supra Chapter IV, d, e. Also, legal uncertainties prompted the military authorities to oppose the recognition and protection indigenous lands for the exclusive use by indigenous peoples, claiming that granting lands to indigenous peoples would lead to their separation from the major society; that, allied with international non-governmental organizations, indigenous peoples become a threat to the country's sovereignty; and that indigenous lands are a risk to the border security of the State.433 Despite the lack of concrete grounds for such assertions and numerous situations proving the contrary that indigenous lands actually help in the protection of the public patrimony, the environment and the borders of the State,434 such discourse finds support within

Congress to justify statute proposals to limit indigenous peoples' rights.435

International consequences: human rights obligations

Internationally, formal recognition of rights without the necessary domestic legal enforcement does not amount to a fair indicator of the country's genuine efforts to promote and protect indigenous peoples' human rights. On the contrary, the lack of enforcement of indigenous peoples territorial rights amount to a violation of fundamental rights under the Brazilian constitutional and international human rights laws. 436 As repeatedly identified by international human rights bodies, indigenous peoples in Brazil continue to suffer from the constant presence of intruders in their lands; the violence and racial hatred related to land conflicts; the continuing lack of demarcation and lack of physical protection of their territories; and the increasing legal challenges aimed at overturning titled indigenous lands.

433 Supremo Tribunal Federal [STF], Pet. 3388, Relator: Min. Carlos Britto, 27.08.2008, Voto do Ministro Relator Carlos Britto, http://www.stf.jus.br/portal/processo/verProcessoAndamento.asp. 434 Supremo Tribunal Federal [STF], Pet. 3388, Relator: Min. Carlos Britto, 27.08.2008, Voto do Ministro Relator Carlos Britto, http://www.stf.jus.br/portal/processo/verProcessoAndamento.asp. 435 There are at least 05 proposals of constitutional amendments and 19 statute proposals at the Senate level and, since May 2007, 15 statute proposals at Chamber of Deputies level to suspend the effect of indigenous land's demarcation decrees or to change the identification and demarcation procedures. (October 2008). 436 See Supra Chapter IV, e. International human rights law and the Constitution

However groundbreaking, and yet to be implemented m the context of indigenous peoples, the proposed use of international human rights law-in addition to constitutional law- is not innovative in Brazil.437 The Brazilian Federal

Constitution established fundamental rights and guarantees as core principles and interpretative criterion for the whole domestic legal system. The 1988 Brazilian

Federal Constitution opened the possibility of incorporating international human rights law as part of the domestic legal system and as interpretative tools to protect fundamental rights because of its coincident principles and values. 438

Therefore, the use of and reference to international human rights law in the context of indigenous peoples is a constitutionally acceptable tool. Not only acceptable, international human rights law is a tool to advance the implementation of the Constitutional provisions, and a tool to overcome the lack of effective enjoyment of constitutional rights by indigenous peoples. Finally, international human rights law establishes obligations to the State towards indigenous peoples.

The use ofinternational human rights law by the Brazilian Federal Supreme Court

The reference to and use of international human rights law by the Brazilian

Federal Supreme Court is a legitimate, justiciable and innovative tool to safeguard the formal advances inserted in the 1988 Brazilian Federal Constitution, and to overcome repressive ideologies and discrimination. Regarding justiciability, international human rights treaties ratified by the State become part of the national legal order according to Constitutional Amendment 45.439

437 See Supra Chapter III, e. 438 See Supra Chapter VI, a. 439 See Supra Chapter VI, b. As an interpretative tool, international human rights law serves to strengthen the Constitution. The core principles regarding indigenous peoples established in international human rights law and reaffirmed in the UN Declaration are also found in the 1988 Brazilian Federal Constitution (articles 4, 5, 231 and 232). Therefore, the use of and reference to international human rights law for indigenous peoples' rights cases cannot be considered to be a threat to the sovereignty of the State. On the contrary, the use and reference of international human rights law in the context of indigenous peoples can be understood as a means by which the Brazilian State can fulfill its domestic and international obligations and commitments.

Resistance to regarding indigenous peoples' land rights as human rights, and to accept international laws and standards, is still witnessed at the Federal Supreme

Court.440 There is a strong belief within the Supreme Court, and in the society, that the use of international human rights instruments for indigenous peoples' rights' cases threatens the domestic legal order. Therefore, constitutional protections of indigenous peoples' fundamental rights are not enforced in domestic courts.

Raposa Serra do Sol case

The Raposa Serra do Sol case ( currently pending decision before the Brazilian

Federal Supreme Court) has shown that in Brazil the administrative procedure for the demarcation of indigenous land is subjected to heavy pressure from third parties, federation units and politicians. The administrative delay in completing the demarcation has led to violence and discrimination against indigenous peoples. 441

Domestic and international human rights monitoring influenced the 2005

440 Supremo Tribunal Federal [STF], Pet. 3388, Relator: Min. Carlos Britto, 27.08.2008, Voto do Ministro Relator Carlos Britto, http://www.stf.jus.br/portal/processo/verProcessoAndamento.asp. 441 State's delay to secure indigenous peoples lands (Raposa Serra do Sol) gave rise to an international human rights' complaint before the Inter-Am. C.H.R. and the beginning of an urgent action procedure in the UN CERD Committee. See Supra Chapter IV, e. presidential ratification of the Raposa Serra do Sol indigenous land demarcation.442

However, the 2005 titling of the land was not enough to ensure the security of

territorial rights on the ground.443 The lack of implementation of indigenous peoples'

right to land-meaning the lack of security of the land for the exclusive use and

possession by indigenous peoples-combined with the lack of legal enforceability of

rights has led to further non-indigenous encroachment upon the indigenous lands,

increasing violence and discrimination against indigenous peoples. In 2008, after

having received four letters from CERD, the federal government initiated an operation

to remove the illegal occupants from the indigenous area. But the Federal

Government, through the Federal Police, had to withdraw its efforts due to a domestic judicial order from the Federal Supreme Court.

Politics and law: how indigenous land rights cases are being solved?

The Federal Supreme Court is resistant to the use of international human

rights law, even if only as a reference in the interpretation of the Brazilian Federal

Constitution and protection of indigenous peoples' fundamental rights. Based on

procedural arguments to dismiss cases without a decision on the merits, the current

position of the Supreme Court has revealed the prevalence of political arguments

rather than the consistent application of the constitutional law to resolve disputes

around indigenous peoples' lands. 444

Raposa Serra do Sol could initially be solved with the interpretation and

442 Submission to the UN Racial Discrimination Committee (CERD) for Procedures to Avoid Immediate and Irreparable Harm to the Indigenous Peoples of Raposa Serra Do Sol, and Follow-Up on Brazil's State Party Report (CERD/C/43 l/Add.8) submitted by the Conselho lndigena de Roraima, the Indigenous Peoples Law and Policy Program at the University of Arizona, The Rainforest Foundation US, and the Forest Peoples Programme (22 June 2006). 443 The demarcation alone and on papers only led to more conflicts among indigenous and non­ indigenous people. Illegal occupants remained in the area due to numerous domestic legal requests contesting the political arrangements that allowed the conclusion of the demarcation. See Supra Chapter IV, e. 444 See Supra Chapter IV application of the law. However, it has been subjected to years of discussion and delays to accommodate political interests-as if indigenous peoples' rights were a second-class and able to be negotiated whenever they conflict with third parties interests. Another problem is that similar cases have received different treatments by the Supreme Court, indicating that the question of land rights has not been based upon law or treated as a fundamental right issue.

Even if sometimes the political decision is to favor indigenous peoples, the backstage agreements between the Executive, Legislative and judiciary do not fully support indigenous peoples. Agreements do not extend full protections of rights according to the principle of non-discrimination and equal access to justice. For instance, in the Raposa Serra do Sol case, when the Supreme Court dismissed the pending cases filed against the demarcation of the area, it apparently led to ratification by the President. However, this was not an effective remedy for the permanent protection of indigenous peoples' rights.

That maneuver did not prevent future complaints questioning the demarcation procedure. And thus, even after the demarcation and the presidential ratification, the land was not yet secured for indigenous peoples. Instead, continuing legal challenges over the land and the demarcation have proven the lack of security of rights conferred so far under the Brazilian legal system. Threats to the physical and cultural integrity of indigenous peoples have increased, weakening the constitutional protections of indigenous peoples and their rights, and amounted on violation of human rights.445

The Federal Supreme Court's role in enforcing indigenous peoples' right to lands

The formal recognition and the constitutional status of indigenous peoples'

445 See Supra Chapter IV, e. rights led to the actual administrative demarcation of contiguous areas for indigenous peoples-and that initiative contributed to remove indigenous peoples from the historical social condition of "invisibility". However, administrative demarcation without effective protection of rights through judicial guarantees has led to violations of fundamental individual and collective indigenous rights.

The lack of consistent legal enforcement, particularly at the Supreme Court level, and the lack of sustainable policy for the protection of indigenous lands has fomented severe discrimination against indigenous peoples, who sometimes have even been referred to as enemies of the State or obstacles to the economic development of the region.446

International and national concerns about the protection and promotion of human rights have shifted from purely matters of state policy to the complex challenge of enforcement of rights. However, in Brazil the heritage of colonialism as well as of the history of dictatorship and the persistent discrimination has led to outmoded enforcement agencies and the ineffective judiciary. 447 In addition to the lack of public attention to minority and human rights issues, the inadequate judicial system has impeded effective enforcement of rights and contributed to the persistent violation of fundamental rights.448 The Federal Supreme Court, under its duty to safeguard the Constitution, is in a privileged position to consolidate the State position towards human rights and indigenous peoples' rights. Two recent votes at the

446 The Governor of Roraima state alleged, in a meeting with military authorities, that defending the contiguous demarcation of lands, the Brazilian Government hides international interests over Raposa Serra do Sol indigenous lands. Jornal Folha de Sao Paulo, Governo acoberta interesses internacionais, diz tucano, 30 May 2008. 447 PAULO SERGIO PINHEIRO, BRAZIL AND THE INTERNATIONAL HUMAN RIGHTS SYSTEM, University of Oxford Centre for Brazilian Studies, Working paper CBS-15-00(P), 38, (1999) available at: http://www.brazil.ox.ac.uk/_ data/assets/pdf_file/0005/94 l 9/pinheiro 15.pdf. 448 The Brazilian Judicial Court System's inadequacy is compared to the inadequacy of the Brazilian police, which influenced by the military regime has been charged for inhuman practices such as torture in the Democratic context reflecting to international human rights violation at the international level. Ibid Supreme Court in Raposa Serra do Sol and Patax6 hii hii hae cases to reaffirm indigenous peoples' rights point to a new era of enforcement of indigenous peoples' constitutional rights.449

The future of indigenous peoples rights at the Federal Supreme Court

In Brazil, several similar domestic cases will follow the Raposa Serra do Sol decision. The future can either be a consolidation of the CF article 231 to protect indigenous peoples' right as recognized in the Constitution and in international human rights law, or it may be a significant set back. The Brazilian Federal Supreme Court decision is expected to either reaffirm the existing model or define a new model for demarcating indigenous lands in the country. International human rights law and constitutional law should set the boundaries for any adjustment deemed necessary in the demarcation policy or law. The present dissertation presented the legal theory-of domestic and international law-for the direct and indirect application of international human rights law in indigenous peoples land rights' cases before the Brazilian Federal

Supreme Court.

New perspectives: Insights from international human rights law

Legal alternatives to go beyond formalism and to materialize indigenous peoples' fundamental collective rights are necessary for overcoming colonialism.

International human rights law is not only comprised of legally valid instruments-to be used at domestic and international levels-but is also an expression of the legal developments to protect indigenous peoples human rights within the legal order of the dominant majority. International human rights law set the framework for the State to observe, and to be observed, in its human rights policy, including indigenous peoples'

449 See Supra Chapter IV, c. policy. Therefore, international human rights law is an important tool to prevent setbacks on indigenous peoples' rights domestically.

In the context of indigenous peoples, the use of international human rights law-in support and addition to the constitutional provisions-has provided important insights to overcoming States' formalism and colonialism. For instance, the innovative interpretation of the right to property to encompass indigenous land tenure, under the principle of non-discrimination, was developed in the Inter-American

System of Human Rights and the UN CERD.450 Also, international human rights bodies, such as the UN Human Rights Committee, have affirmed that indigenous peoples' survival and continuation as distinct peoples cannot take place without statutory protection of indigenous peoples' lands, domestic policy such as demarcation of lands, and judicial remedies to have such right guaranteed.

International human rights law has finally influenced States' Constitutions, legislation, policy and Supreme Court decisions towards the protection of indigenous peoples right to lands.451

International human rights law and its monitoring mechanisms are the ywentieth century's innovative tools to overcome the historical gap between formal protection and the situation on the ground, the persistent and sometimes 'invisible' domestic injustices. The recognized relationship between fundamental rights and indigenous peoples' right to lands, in the twentieth century, is better protected under the international system of human rights because it prompts States to adopt measures to stop and prevent human rights violations.

Humanist values combined with the idea of cultural diversity and non-

450 See Supra Chapter V, a and b. 451 See Supra Chapter V and VI, a. discrimination place indigenous peoples' right to lands under the protection of international human rights law. In addition to its international commitments and human rights obligations, in Brazil those same values and principles are also protected by the Constitution. Therefore, the enforcement of indigenous peoples' right to lands benefits from both domestic and international laws. The implementation of such rights at the Federal Supreme Court level is a constitutional obligation of the State. Bibliography Law and Sociology Abel, Richard, Redirecting Social Studies ofLaw, 14 LAW AND SOCIETY REVIEW, 826 ss. __. Cultural Foundations for the International Protection ofHuman Rights, in AN­ NA 'IM (Abdullahi org.), HUMAN RIGHTS IN CROSS-CULTURAL PERSPECTIVES (University of Pennsylvania Press, 1992). Santos, Boaventura de Sousa, Law and Democracy: (Mis)trusting de Global Reform of Courts, in GLOBALIZING INSTITUTIONS: CASE STUDIES IN REGULATION AND INNOVATION (Jane Jenson and Boaventura de Sousa Santos eds. 2000). __. PARA UM NOVO SENSO CO MUM: A Ciencia, o Direito ea Politica na transir;iio Paradigmatica,Vol. 1. A Critica da Razao Indolente (Ed. Cortez, 2005). Sen, Amartya K., The Possibility ofSocial Choice, 89 AMERICAN ECONOMIC REVIEW (1999) --· DEVELOPMENT AS FREEDOM (Anchor, 1999)

Indigenous Peoples and International Human Rights Law Alfredsson, Gudmundur. International Law, International Organizations and Indigenous Peoples, 36 JOURNAL OF INTERNATIONAL AFFAIRS 113, 1982. Anaya, S. James, INDIGENOUS PEOPLE IN INTERNATIONAL LAW, 2004, Oxford University Press .

---. and R., Williams Jr., The protection ofIndigenous Peoples' Rights over Land and Natural Resources Under the Inter-American Human Rights System, 14 HARV. HUM. RTS. J. 33, (2001). ___., International Human Right and Indigenous Peoples: The Move Toward the Multicultural State", 21 ARIZ. J. lNT'L & COMP. LAW ONLINE, (2004). ___., The Emergence of Customary International Law Concerning the Rights of Indigenous Peoples, 12 LAW & ANTHROPOLOGY: INT'L Y.B. LEGAL ANTHROPOLOGY 127 (2005). __., Divergent Discourses about International Law, Indigenous Peoples, and Rights Over Lands and Natural Resources: Toward a Realist Trend, 16 COLO. J. INT'L ENVTL. L. & POL'Y 237 (2005). ___.,Indian Givers: What Indigenous Peoples Have Contributed to International Human Rights Law, 22 WASH. U. J.L. & PoL'Y 107 (2006). ___., The Case ofthe Maya Villages ofBelize: Reversing the Trend of Government Neglect to Secure Indigenous Land Rights, 8 HUM. RTS. L. REV. 377 (2008) (co-author Maia S. Campbell). Barsh, Russel L., and Henderson, James Youngblood. Aboriginal Rights, Treaty Rights and Human Rights: Indian Tribes and Constitutional Renewal., 17 JOURNAL OF CANADIAN STUDIES 55, 1982. ___., Indigenous Peoples in the 1990s: From Object to Subject ofInternational Law", 7 HARV. HUM. RTS J. 33, 1994. Bennett, Gordon, ABORIGINAL RIGHTS IN INTERNATIONAL LAW. London: Royal Anthropological Institute in association with Survival International, 1978. Chapman, Audrey, and Russell, Sage, (eds.) CORE OBLIGATIONS: BUILDING A FRAMEWORK FOR ECONOMIC, SOCIAL AND CULTURAL RIGHTS, 2002 Cohen, Cynthia, (ed.) HUMAN RIGHTS OF INDIGENOUS PEOPLES, 1998, Ardsley NY: Transnational Publishers. Cunha, Manuela Carneiro da, Os DIREITOS DO INDIO:ENSAIOS E DOCUMENTOS (Editora Brasiliense, 1987) __. (org.) HISTORIA DOS INDIOS NO BRASIL DOCUMENTOS (Companhia das Letras, 1992) Davis, Sheldon H., LAND RIGHTS AND INDIGENOUS PEOPLES, 1988, Cambridge, Massachusetts. Fraga, Mirto, 0 CONFLITO ENTRE TRA TADO INTERNACIONAL E NORMA DE DIREITO INTERNO: ESTUDO ANALITICO DA SITUA<;AO DO TRATADO NA ORDEM JURIDICA BRASILEIRA, Rio de Janeiro: Forense, 1998. Holanda, Sergio Buarque, RAizEs DO BRASIL, 1995, Companhia das Letras. Lillich, Hannum, Anaya, Shelton, INTERNATIONAL HUMAN RIGHTS-PROBLEMS OF LAW, POLICY AND PRACTICE, 2006, Aspen Publishers. Magalhaes, Edvard Dias ( org), LEGISLA<;Ao INDIGENISTA BRASILEIRA EN ORMAS CORRELAT AS, 2003, FUNAI. Mares, Carlos Frederico (org.), TEXTOS CLASSICOS SOBRE O DIREITO E OS Povos IND IGEN AS, 1992, Curitiba, Jurua Editora .

---. 0 RENASCERDOS Povos INDIGENAS PARA o DIREITO, 1998 (la.Ed.), Curitiba, Jurua Editora. Mazzuoli, Valerio de Oliveira. TRATADOS INTERNACIONAIS: COM COMENTARIOS A CONVEN<;Ao DE VIENA DE 1969. 2a ed. Rev., ampl. Ed Atual. Sao Paulo. Plant, Robert, ISSUES IN INDIGENOUS POVERTY AND DEVELOPMENT, 1998, Inter­ American Development Bank, N. IND- 105. ___. LAND RIGHTS AND MINORITIES, 1994, Minority Rights Group International. Piovesan, Flavia, DIREITOS HUMANOS E O DIREITO CONSTITUCIONAL INTERNACIONAL, 2006, Editora Saraiva .

---. DIREITOS HUMANOS E JUSTICA INTERNACIONAL, 2006, Editora Saraiva. Rehman, Javaid, INTERNATIONAL HUMAN RIGHTS LA w - A PRACTICAL APPROACH, 2003, Pearson Education Ltd. Rezek, Jose Francisco, DIREITO INTERNACIONAL P(JBLICO: CURSO ELEMENT AR 9a ed., rev. Sao Paulo: Saraiva, 2002. Ribeiro, Darcy, Os INDIOS EA CIVILIZA('.AO - A INTEGRACAO DAS POPULACOES INDIGENAS NO BRASIL MODERNO, 1996, Companhia das Letras .

---. 0 Povo BRASILEIRO - A F ORMACAO E o SENTIDO DO BRASIL, 1995 Companhia das Letras. Ricardo, Fany ( org.) and Rolla, Alicia, MINERACAO EM TERRAS INDIGENAS NA AMAZONIA BRASILEIRA, Sao Paulo, Instituto Socioambiental, 2005. Shany, Yuval, How Supreme is the Supreme Law of the land? Comparative Analysis of the influence ofinternational human rights upon interpretation ofconstitutional text by domestic courts, 32:2 BROOK. J. lNT'L L. 2006.

Stavenhagen, Rodolfo and Iturralde, Diego, ENTRE LA LEY y LA COSTUMBRE, Instituto Indigenista Interamericano and Instituto Interamericano de Derechos Humanos, 1990. Thornberry, Patrick, INDIGENOUS PEOPLES AND HUMAN RIGHTS, 2002, New York: Manchester University Press. Wolkmer, Antonio Carlos (org), DIREITO E JUSTICA NA AMERICA INDiGENA- DA CONQUISTA A COLONIZACAO, 1998 Livraria do Advogado. World Council of Churches, LAND RIGHTS FOR INDIGENOUS PEOPLES, 1983. Wiessner, S., The rights and Status ofIndigenous Peoples: A Global Comparative and International legal Analysis, 12 HARV. HUM. RTS. J., 1999. Williams, Jr. Robert A., Encounters on the Frontiers ofInternational Human Rights Law: Redefining the Terms of indigenous Peoples' Survival in the World, 4 DUKE L. J. 660, 1990 .

---. AMERICAN INDIAN IN WESTERN LEGAL THOUGHT: THE DISCOURSES OF CONQUEST, Oxford University Press, 1992.

Other Sources of data: 1945 United Nations Charter 1948 Universal Declaration of Human Rights 1957 ILO Convention No. I 07 1965 International Convention on the Elimination of All Forms of Discrimination 1966 International Covenant on Civil and Political Rights 1966 International Covenant on Economic Social and Cultural Rights 1989 ILO Convention No.169

2007 UN Declaration on the Rights of Indigenous Peoples 1948 Inter-American Democratic Charter 1967 Charter of the Organization of American States 1969 American Convention on Human Rights "Pact of San Jose, Costa Rica" 1948 American Declaration of the Rights and Duties of Men

1988 Brazilian Federal Constitution Brazilian jurisprudence on indigenous' right to land Brazilian State reports on governmental polices on the right to land for indigenous peoples UN Human Rights Committee jurisprudence UN Commission of Human Rights Comments Inter-American Court of Human Rights jurisprudence Inter-American Commission on Human Rights jurisprudence OAS Draft Declaration on Indigenous