A closer reading of the current procedures identification and demarcation of indigenous lands us back, almost necessarily, the nature and sequence of process used in systems inquisitive.
There is a remnant of such a system, that applies in a sort of penalty of loss of rural land to an end. In criminal prosecution, Brazil adopted the adversarial system, which is characterized by the principle of adversary proceedings, with the parties on an equal footing.
functions accuse, judge and advocate are exercised by separate bodies, and the defendant be treated as the subject of the proceedings, the right holder of the defense. In the inquisitorial system, the functions of accusation, defense and judge are confined to the same organ, the defendant is treated as an object of the process.
is precisely this accumulation of functions in a single body that characterizes the Decree 1775 of 8 January 1996, which sets forth the administrative demarcation of indigenous lands, as a remnant of the inquisitorial process on the property right, but let's see. The rite
procedural identification of indigenous lands, established by Decree. There is, first, that the Decree:
a) grant jurisdiction to the anthropologist, without establishing evaluation criteria and procedures that he and his working group should take to make the discrimination of indigenous lands from private lands ;
b) allows this way that the demarcations are often based on studies with bias or subjective;
c) reduces, in practice, even with further consideration by the Ministry of Justice, the right to contradictory and full defense to a simple demonstration, which will be submitted to Funai's own assessment, which is also an interested party. The national practice and examines the challenges that are addressed and at the same time, considers his own acts;
d) violates the principle of equality, which is given to the owners within 90 days only, while the very Funai have their disposal for several years research, surveys and data collection;
e) adopts administrative acts (decrees) for demarcations that lack legal validity, because there are no charter, but only declaratory; and
f) authorizes, finally, loss of property in the administrative .
tight deadlines
The Decree regulates erroneously 1.775/1996 the demarcation of indigenous lands (IT). Despite the existence of the Indian Act (Law No 6.001/1973), it does not address the issue of demarcation. The law only lecture on his art. 19 that: "Indigenous lands, the initiative and under the guidance of the federal agency of the Indian assistance, will be administratively demarcated in accordance with the procedure established by decree of the Executive Branch." Thus, the Decree is not regulated any laws and therefore is not, in this case, appropriate legal instrument to regulate the field.
So this question should have been previously regulated by a specific law, then by a decree. What is observed is that the said Decree 1.775/1996 is not restricted to regulating the law, invading the jurisdiction of the legislature. Decree hurts, then the provisions of art. 84, item IV of the CF/1988, which gives the President the exclusive authority to sanction, enact and promulgate laws and issue decrees and regulations for its faithful execution.
The quoted decree, moreover, also does not fit in the circumstances specified in paragraph "a" of paragraph VI of the aforementioned article of the Constitution, which deals with so-called "autonomous decrees." These decrees allow the President the endogenous regulation only matters of federal administration and do not affect rights of others.
Thus, the ordinance exceeds the power to regulate. Legal insecurity Consequently, Funai has been identifying the areas claimed by indigenous nature of inquisitorial procedures, housed in Decree 1.775/1996. Such procedures lead to frequent failure of third party rights, especially property rights, creating an environment of legal uncertainty.
10 years, the CPI's final opinion of the Chamber of Deputies, which investigated the conduct of the FUNAI, in December 1999 was clear: "the process of demarcation of indigenous lands is particularly arbitrary because it concentrates power in decision Funai and other public entities do not participate in the process. " The acts of FUNAI, therefore, can not be effectively challenged in another instance of government, with due impartiality, which represents the maintenance of our administrative system is a manifestation of arbitrariness of public powers.
Since then it has established a routine concern in Congress, from the performance of many public hearings, or in the House of Representatives or the Senate, to discuss the demarcation of indigenous land in many regions of Brazil, where participants are familiar with, namely, parliamentarians, representatives of executive power - especially Funai, landowners, indigenous communities, and nongovernmental organizations with very different interests. On the one hand, Funai justifies its claim to demarcate significant tracts of land in favor of the Indians, which is identifying or identified in compliance with the legislation. On the other hand, resists the said claim, arguing mainly failures, inconsistencies or flaws of administrative procedures in the identification and demarcation, sometimes resulting in problems of development of anthropological reports, sometimes contradictory and the lack of legal defense, why disregard Titles property, in some cases centenarians.
Concept unequivocal
Meanwhile, the Supreme Court (STF) as a result of the trial of PET RR 3388, in which they discussed the demarcation of the Raposa Serra do Sol, set clear concept of indigenous land and new parameters for the demarcation. According to the ruling, the Constitution did not create new indigenous areas, but, alone, merely recognize the existing ones.
this context, there is the vote of Justice Carlos Ayres Britto that define unequivocally the concept of land traditionally occupied by Indians. (See box) From above, we emphasize, though, two caveats and conditions of the nineteen handed down vote on the Minister of Law Menezes, namely: It is forbidden to expanding the already demarcated indigenous land, and is ensured the effective participation of all entities of Federation at all stages of the process of demarcation. States and municipalities are optional for the joint party joint party needed.
If it is not Indian land, left the Federal Government to meet any need of the community and / or minimize conflicts, to create Indian reservations. This institute may be established, regardless of traditional occupation, as point "a" of § of art. 26 combined with art. 27 of Law 6.001/1973 (Indian Act).
For the formation of the Indian reservation the Federal Government can valerse public land or private land, in this case with fair and prior compensation.
It is the legislative branch, immediately mobilize and establish a law that would define objective criteria for the identification and demarcation of indigenous lands. There is no shortage legislative proposals, such as the Proposed Amendments to the Constitution of the Federal 38/1999 - which gives exclusive authority to the Senate to approve the process of demarcation Indian land - and 03/2004 - which allows the compensation of land in particular area, duly certificated by the Government, or the Bill 4791/2009 - which states that the demarcation of lands traditionally occupied by Indians are subject to the approval of Congress.
Solutions exist, they lack the political will to mobilize and ensure the right of ownership, entrenchment clause of the Constitution, as well as direct from indigenous communities, as foreseen in art. 231 of that constitution, which are not restricted to land resources.
* Anaximander Doudement Almeida - Agronomist, Technical adviser of the National Land Affairs of the ANC.
by: Anaximander Doudement Almeida
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