Indigenous lands and fake owners
Monday, November 12, 2012
Indigenous lands and fake owners
“The legal aspect has been ignored or enshrouded one, bundled up is the fact that the State of Mato Grosso was not owner of those lands, and so had no right to dispose of them, making donations or sales”. The comment is the jurist Dalmo de Abreu Dallari in an article in the Jornal do Brazil, 11/9/2012, on the lands occupied by indigenous people before and have been passed on to farmers.
Here is the article
In various parts of Brazil are gaining more serious clashes between indigenous communities and farmers who portray themselves as owners of areas traditionally occupied by the Indians. One of the places of greater intensity of conflicts, speaking up, even in the possibility of collective suicide of indigenous communities if they are forced to leave their land, is the State of Mato Grosso do Sul. Alongside the human aspects of utmost gravity, there is a point of fundamental importance, legal order, which has not been remembered and that makes the patent illegality of the claims of those who call themselves farmers regularly installed in indigenous lands.
Indeed, in the news relating to conflicts that involve the lands of Indians guarani kaiowá, has been made slight mention an argument used by those who claim to be holders of rights to the land and also by some of his lawyers. They say that became owners around 1940 by negotiating with the Government of the State of Mato Grosso. Through donations would have obtained ownership of the lands traditionally occupied by indigenous communities. It is possible to be, really, bondholders formally registered property, which gives the appearance of regularity.
The legal aspect has been ignored or enshrouded one, bundled up is the fact that the State of Mato Grosso was not owner of those lands, and so had no right to dispose of them, making donations or sales. The root of the legal issue is the so-called Law of land, that is law No. 601, September 18, 1850, which regularized the land regime in Brazil. According to the land law, who was the titular holder or heir to donations of land made by the Government and which effectively occupied these lands with some kind of exploitation obtained the right to be declared owner.
But huge extensions were unoccupied, because donors do not reside in them and not used for any purpose. These lands were then reinstated to the public patrimony of the Brazilian Government, and thus the expression, “they claimed lands”, because they were being returned to the original owner. And by article 12 of the law of land it was established that the areas occupied by indigenous communities would affect the wealth of the central Government, it should use them, according to current expression at the time for the “colonization of indigenous peoples”.
A valuable review of the land law of 1850 and their importance to indigenous communities is the classic work of João Mendes Jr. entitled indigenous peoples in Brazil, their individual and political rights, published in 1912. This work emphasizes the eminent lawyer that the Indian relationship with the Earth is “immediate” domain, “congenital”, that is, an original right, which, he notes, has already been recognized by the law in the colonial period. So, concludes João Mendes Jr., the indigenato “is not a fact dependent on legitimacy, while the occupation by settlers, as fact, depends on the factual and legal requirements that the legitimem.
It was from there that made the separation between public and private domains, integrating the public domain sites used for some order in the public interest and also the lands they claimed. There was a caveat to the donations made so far by the General provincial governments, provided that donors had effectively occupied the land. But they claimed lands, including the areas occupied by indigenous communities, have been integrated to the wealth of the Empire and, after the proclamation of the Republic, to the heritage of the Union. Thus, the acquisition, at any title, from the acts of the State Governments have no legal value, because those Governments had no legal conditions to dispose of property belonging to the heritage of the Union.
All this is very clear to anyone who looks, in good faith, the evolution of the system of land in Brazil. And with regard to indigenous lands the Constitution of 1988 expressly provides, in article 20, which “are goods of the Union: XI-the lands traditionally occupied by the Indians”. In addition, it is absolutely clear when establishes, in article 231, which “are recognized to their social organization, customs, languages, beliefs and traditions, and the originating on land rights that traditionally occupy, competing to demarcá them, protect and enforce all their goods”. And in seven paragraphs added to this article are reaffirmed with minutiae such rights on the lands, and if expressly that “the lands referred to in this article are inalienable and unavailable, and the rights to them imprescriptible.”
The latter device is of fundamental importance, because there have been cases in which attackers in bad faith negotiate the occupation of lands with naive and uninformed indigenous leaders, intending thus legalize the invasion. In legal terms, it is legally possible for the conclusion of agreements for the joint exploitation of indigenous lands and wealth, by Indians and non-Indians, but this should be done with the participation of the competent federal authorities and with the prior, free and informed consent of the indigenous community, as expressed in the Convention 169 of the International Labour Organization on indigenous peoples and the courts, to which Brazil acceded. Out that the presence of trespassers in indigenous lands configures illegality, which requires the prompt reaction of the competent authorities to guarantee constitutional rights.