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BRAZIL: Indigenous Groups Defend Constitutional Right to Land

Mario Osava

MIRANDA and ANTONIO JOAO, Brazil, Feb 29 2008 (IPS) - Thousands of indigenous people in the west-central Brazilian state of Mato Grosso do Sul are living in precarious camps or small overcrowded reservations, lacking the land they need to grow the food needed to overcome high levels of malnutrition.

But despite government recognition of their ancestral land, their claims are tied up in court. Meanwhile, their community leaders face the threat of being killed for attempting to secure respect for indigenous people’s constitutional right to their traditional lands.

"We are not opposed to indigenous people," but their territory cannot be expanded "by violating other people’s property rights," argued Dacio Queiroz, secretary of the Agriculture Federation that represents large landowners in the state.

Landowners, who are afraid of losing property as a result of the formal demarcation of new indigenous reservations, "hold proper land titles" that cannot be annulled just because Indians "supposedly" used to live there, argued Queiroz, who inherited land that was acquired in 1948 and that is claimed by members of the Guaraní ethnic group in the municipality of Antonio Joao in Mato Grosso do Sul.

But the only option for survival that Brazil’s indigenous people have is to recover their ancestral land, based on rights that are enshrined in the country’s 1988 constitution.

The population explosion of the last few decades has pushed Brazil’s indigenous communities to stage peaceful occupations of land that their ancestors lived on in recent generations, thus seeking to accelerate the government’s demarcation process. The reservations that were drawn up decades ago are now too small, given the growth of their communities.

For example, Zacarias Rodrigues, a 50-year-old father of four and grandfather of two, decided to lead an occupation of land that his community, the Terena Indians, used to live on, when he – the youngest of 12 siblings – was left without land to farm and he foresaw a similar fate for the future generations.

After three years of preparations and a lengthy campaign to get people involved, 21 families occupied part of an estate in the early hours of Nov. 28, 2005, setting up a camp that they called Mother Earth.

"It was hard work convincing people in public meetings, seminars, and going door to door," recalled another of the movement’s leaders, 43-year-old Maria Belizario, who has three children and three grandchildren.

"The earth is our mother, it is everything for us, and in the village where we were living, there was no more room for our children," said Belizario, who suggested the name of the camp.

Her group broke with the long tradition of diplomacy of the Terena people, who are known for engaging in dialogue and adapting to being hemmed in by "non-indigenous" society.

The ethnic group in fact was split by the occupation, a tactic used for decades by the much bigger Guaraní community, who have long suffered discrimination in the southern part of the state of Mato Grosso do Sul.

There were moments of tension. On the second night of the occupation, shots fired by the landowner’s security guards terrified the women who were standing watch while their husbands rested from a long, tiring day of building huts, said Darci Santos, a 43-year-old who has five children and two grandchildren,

Albertina Fonseca, who is the same age as Santos but has 11 children and eight grandchildren, also vividly remembers the frightening incident.

At one point, 120 families were living in the camp, but the number has dwindled to 68. Many left because of the lack of water, electricity and schools, lamented Rodrigues.

The remaining families depend on water brought in by truck and food distributed by the government, as they are unable to grow enough crops for their survival given the fact that the legal dispute over the land is ongoing.

The occupation expanded the Terena reserve in the municipality of Miranda, in western Mato Grosso do Sul, by 1,297 hectares, from the original 2,660 hectares inhabited by 6,000 Terena Indians in the municipality of Miranda, in the western part of the state.

But the group lays claim to the entire zone of Cachoeirinha, an area of 36,288 hectares that anthropologists say is traditional Terena territory.

Some of the large landowners affected by the Terena occupation decided not to take the matter to court, but are seeking indemnification from the state.

THE GUARANÍ STRUGGLE FOR THEIR OWN LAND

People in the Guaraní community of Antonio João, on the border with Paraguay, remember even tougher experiences. Their martyrs include Dorvalino Rocha, who was shot to death in 2005, and Marçal de Souza, who was murdered in 1983 after he became a well-known indigenous leader, especially because of a harsh speech he gave before the late Pope John Paul II, when the pontiff visited Brazil in 1980.

Crowded onto 11 hectares of land granted to them by the city government or in camps that stretch out along different roads, the Kaiowá branch of the Guaraní ethnic group have carried out four occupations since 1998 to press the government to recognise their right to their traditional land. But they withdrew from the occupied land when legal orders were issued in favour of the landowners.

In 1999, after reaching agreements with landowners, Kaiowá families were able to settle on 26 hectares, and in 2006 they were allowed to set up camp on another area of 101 hectares.

But because the land is not yet legally theirs, they continue to live in huts made of boards and covered with sape grass, and are unable to work the land as they would like to, which forces them to depend on food donations from the government.

Although not entirely successful, their pressure tactics have borne fruit. The governmental National Indigenous Foundation (FUNAI) commissioned two anthropological studies that identified a 9,317-hectare area that was officially made a Guaraní reservation by President Luiz Inácio Lula da Silva on Mar. 23, 2005.

Nevertheless, the legal battle is not over for the indigenous people living in the Ñanderú Marangatú (Great Sacred Father, in Guaraní) reservation, as the area is called. Four months after the formal creation of the reservation, then chief justice of the Supreme Court Nelson Jobim overruled the presidential decree in a preliminary decision, after it was appealed by the landowners.

Two and a half years later, the indigenous community is still waiting for the final verdict from the Supreme Court.

However, "it is 90 percent certain that the Court will recognise our right" to the land, said an optimistic Hamilton Lopes, a veteran teacher and expert on legal matters pertaining to indigenous communities who has been involved in occupations of land in other Guaraní villages and has taken part in international forums.

For his part, Loretito Vilhalva, the village "captain" or elected representative, said he had confidence in the anthropological studies and in the loss of credibility of the landowners, who had hidden illegal weapons seized from them in November.

The police searched their premises as a result of complaints about violent tactics by their security guards, who "frequently fired shots over the indigenous camp," said Vilhalva.

But the conflict will continue to drag on. Even if the legal dispute is resolved in favour of the indigenous group, as has occurred in other parts of the country, that would provide no guarantee that the landowners would abandon the land.

The demarcation of indigenous territories is not moving forward because it is part of an "unconstitutional process" led by FUNAI, which "incites invasions of estates," argued Leoncio Brito, president of the Agricultural Affairs Committee of the National Confederation of Agriculture (CNA).

Lula’s leftist government, which in Brito’s view is encouraging people to have more and more children, by distributing food donations, should purchase large swaths of land elsewhere to "accommodate the Indians," he said.

SACRED LAND

But in this case, the question does not involve distributing plots of land to landless peasants on areas acquired or expropriated by the state as part of its land reform programme, under which unused or unproductive rural property can be seized and its owners compensated, to help remedy the extreme concentration of land in a few hands.

What the indigenous groups are fighting for is their constitutional right to their traditional land, which was taken over and occupied in the past by large landholders, and is necessary to the physical and cultural survival of the groups and their customs and traditions.

The land in question is sacred to the indigenous groups, and generally lies around or near the villages where they are currently living.

These areas, identified by anthropologists as the ancestral lands of indigenous communities, officially belong to the state. So even though landholders may claim them as their own, they cannot legally belong to private individuals, and are thus not subject to expropriation and compensation under the government’s land reform policy.

The only compensation possible is for the improvements made on the land, explained Rogerio Batalha, a lawyer for the Indigenist Missionary Council (CIMI), a Catholic Church group.

In Mato Grosso do Sul, on the other hand, landowners generally hold legal title to the land in dispute, often acquired with the help of government officials from past state or national administrations. Their private property rights are also constitutionally protected, and thus cannot be legally challenged. That means the land is not subject to government indemnification, even if it was clearly the ancestral territory of indigenous groups in the past.

The landholders are willing to negotiate an agreement, which would include compensation, even for land that has never been used for production, in order "to avoid conflicts" and put an end to the constant tension, said the state Agriculture Federation’s Queiroz.

"The rich countries and non-governmental organisations there that say they support the indigenous cause in Brazil could very well send over the resources for buying the estates," he quipped.

There are three alternatives for getting out of this dead-end alley that has no legal solution, according to Batalha. The first would be a constitutional amendment allowing the government to pay compensation for the land in question. But an amendment would be highly unlikely to make it through Congress, as it would need the votes of at least 60 percent of the legislators, and would previously have to make it through a set of complex procedures.

Besides being controversial, a constitutional reform would be hard to apply in widely differing contexts, like the Amazon jungle region, where the land titles to many estates are legally dubious.

Another option would be to sue for compensation in the civil courts, seeking to hold the state responsible for errors committed in encouraging and accepting the occupation of indigenous areas by landowners by granting them land titles.

"But that is a route that no one wants to take, because it could stretch out for more than a century," the lawyer admitted.

That means "the only legally viable alternative" is a reform of the constitution of the state of Mato Grosso do Sul, he maintained. The state government predictably refuses to foot the bill for the compensation payments, but it could be granted funds by the national government to that end, without violating the Brazilian constitution, he said.

Yet Tatiana Ujacow, a lawyer who provides support to indigenous organisations, and the author of the book "Direito ao pão novo" on the rights and dignity of the Guaraní people, believes that only an amendment of the national constitution would provide a definitive solution to the problem, because other measures can be challenged, precisely, as unconstitutional.

Meanwhile, FUNAI is finally working on carrying out its mission of marking off new indigenous territories in Mato Grosso do Sul.

The plan foresees anthropological studies over this year and the next in five river basin regions where there is evidence of more than 30 traditionally Guaraní areas, said Rubem Almeida, one of the six anthropologists involved in the project.