Indigenous Rights and Brazilian democracy: An Interview Manuela Carneiro da Cunha

In the midst of the protests that defined the months of June and July, Manuela Carneiro da Cunha gave an interview to the newspaper Folha de São Paulo, conducted by Ricardo Mendonça. In it, Cunha criticized the direction of indigenous rights guarantees under the administration of President Dilma Roussef. The interview had major repercussions, because it exposed, in the middle of a moment of national effervescence, the fragility of Brazilian democracy.

Translated by Gregory Morton.

Richard Mendonça: What separates the Dilma administration from its predecessors, in terms of the indigenous question?

Manuela Carneiro da Cunha: I have said before that, in this administration, the right hand and the left hand seem to be unaware of each other’s existence. The left promotes greater social justice; the right promotes so-called development with no limits whatsoever.

The problem is not the developmentalism in itself, but rather its savage character: the absence of limits that respond to the imperatives of justice, human rights, and conservation. Human and environmental costs are not being considered.

What we are witnessing, right now, is an unprecedented offensive in Congress against Indians. Various bills are attempting to destroy the guarantees that the 1988 Constitution established. The federal government has a formal tutelary role in relation to indigenous peoples, and that role makes it the protector of indigenous rights. But the federal government doesn’t stand up against any part of this offensive.

Even the AGU (the Federal General Advocate, a public-interest legal investigation arm of the government). The AGU had a tradition of defending indigenous rights. But the AGU allied itself with the caucus of rural landowners when it issued the regrettable Decree 303. (This administrative rule covers all demarcation cases. In all of these cases, it applies the same 19 conditions created by the Supremo Tribunal Federal—the Supreme Court—in the Raposa Serra do Sol decision, from Roraima.)

RM: How should we understand the administration’s recent actions?

MCC: On a charitable reading, I would say that the government is giving in to pressure from major landowners, and bargaining away indigenous rights in exchange for support.

That’s how, last Wednesday, a scandalous manoeuver happened in the Câmara (the Chamber of Deputies). The manoeuver involved the creation of urgency status for Complementary Bill (Projeto de Lei Complementar) 227/2012, which would create rules for Paragraph 6 of Article 231 of the Constitution, the article that deals with indigenous lands. Last Wednesday, it was decided that this crucial issue would be voted upon through an agreement of the leaders, with the blessing of the leader of the government.

RM: What does that mean?

MCC: Paragraph 6 of the Constitution allows for an exception to Indians’ exclusive possession and usufruct rights, in cases where the Federal Republic has a relevant interest.

The bill, authored by the vice-president of the National Confederation of Agriculture (Confederação Nacional da Agricultura), would define “relevant interest of the Federal Republic.” The definition is frightening. Practically everything fits inside of it. It would allow indigenous lands to be criss-crossed by roads, oil pipelines, electric wires, hydroelectric installations, railroads.

It would allow for land to be granted to third parties in strips along the border. It would let existing squatters, urban agglomerations, and agrarian reform settlements remain where they are, and even permit new settlements. All land that was under private control at the time of the promulgation of the 1988 Constitution would be left as it was then.

RM: So it would allow everything, then?

MCC: This clause would be the equivalent of the amnesty that the major landowners obtained with the new Forest Code (Código Florestal.) But this time, it’s not just a question of avoiding fines and requirements to remedy degraded land. This time it would mean legalizing and perpetuating theft. If a law like this were to pass, it would mean the destruction of indigenous territorial rights.

RM: You referred to the Supreme Court’s conditions and the Federal General Advocate’s decree. These have been much criticized by indigenous people and anthropologists. What are the problems?

MCC: Several of these conditions emerged as a method for allowing a consensus between the justices of the Supreme Court in the Raposa Serra do Sol case. These conditions still have to undergo a deeper analysis by the Supreme Court, and they were established for that specific case. When the Federal General Advocate moved to extend them to other cases, it was abusively trying to consolidate an understanding that does not favor Indians.

RM: Give an example.

MCC: One example is the alleged prohibition on the expansion of Indian lands. This condition referred to the case of Raposa, whose demarcation had been validated by the Court. It would be improper to expand a recently-demarcated area. When this same condition is applied to Guarani lands, lands that were demarcated in another context, decades ago, it’s obvious how absurd the situation becomes. That is why Decree 303 is so bad—it demonstrates clear intent to undermine indigenous rights in order to benefit economic interests. It goes against the whole history of the Federal General Advocate itself, which has always taken notable stands in favor of these rights.

RM: The government wants to involve Embrapa (a federal organization that promotes agriculture), among other entities, in the demarcation process. Some people think that this amounts to an effort to weaken Funai (the federal agency that works on indigenous issues.) What is your opinion?

MCC: The president seems to be more and more the hostage of the PMDB party (a center-right party that belongs to Dilma’s governing coalition) and of agrobusiness, which has allied itself with evangelicals. This bloc fiercely opposes the demarcation of indigenous lands and also opposes “de-intrusion,” the removal of people who have occupied those lands illegally.

Marta Azevedo (ex-president of Funai, who left the office in June) announced as soon as she took office that she would prioritize the situation in regions where the major landowners have interests. It was quite a task to achieve, last year, the “de-intrusion” of the Xavante Marãiwatsede area, after twenty years. That was poking the hornet’s nest.

The government’s “right hand” uses several tactics to weaken the Indians’ cause. One tactic is to take assignments away from Funai. Another is to strip it of its money. Yet another is to install as its president a person who is serving other agendas.

It is rumored that Senator Romero Jucá (PMDB from RR state), who made his political career as president of Funai and whose work was deeply criticized, would like to put one of his people in the job.

RM: In Congress, there is increasing support for the idea of taking away from the Executive Branch the exclusive responsibility for the demarcations. How about it?

MCC: If PEC (Proposed Constitutional Amendment) 215 passes, the process of demarcating indigenous lands will stop. This is because the rights of these minority groups will be subjected to power plays by all of the organized interests that are represented in the National Congress, in particular the powerful rural landowners’ caucus.

That would be placing the fox in charge of the henhouse. Demarcation would cease to be an eminently technical activity, as it is today, and become exclusively political.

But Complementary Bill (Projeto de Lei Complementar) 227/2012 (which defines goods of interest to the Federal Republic with regard to demarcation) is much more serious. It is a steamroller crushing the Federal Constitution.

RM: To what extent does the Judicial Branch share responsibility for the delay in demarcating lands and for the conflicts?

MCC: It is estimated that at least ninety percent of the lands in a demarcation process are tied up in court. Sometimes the delays are crazy. In the south of Bahia, the case of the Pataxó took almost one hundred years to be adjudicated by the Supreme Court. In Mato Grosso do Sul there are cases that have been in court processes for more than thirty years. There is a growing and worrisome tendency, on the part of the Judiciary, to halt the administrative demarcation process as soon as it starts, on the grounds that major landowners simply present titles to the land. Certain legal arguments, which several years ago had no effect because they do not fit with the Constitution, are beginning to be heard in the Judiciary.

This has slowed down many demarcation processes, in every region of the country, and in many cases, it has helped increase the level of conflict. That’s what has been happening in Mato Grosso do Sul. Justice delayed is justice denied. In the case of the Guaranis and the Caiovás from Mato Grosso do Sul, there are entire generations that have never been able to live their culture. There was no way to maintain the traditional social organization. Customs and rituals connected to corn cultivation could not be carried out. Isn’t that ethnocide?

RM: Is there any relationship between the death of a Terena man in Mato Grosso do Sul, Osiel Gabriel, at the hands of police forces who were carrying out an eviction in an area already declared indigenous, and the protests of the Mundurucus at Belo Monte (in a hydroelectric dam region), in Pará?

MCC: In both cases, the Federal Police acted against Indians, and that is unprecedented. But the relationship is deeper than that.

In Mato Grosso do Sul the finishing touches were put on a land theft that victimized the Terenas and the Caiovás in particular. The latter, by the way, in a much worse situation than the Terenas. This same sequence of events was already being carried out in the so-called “arc of deforestation” region, in the north of Mato Grosso and the southeast of Pará. Now it’s happening in the southwest of Pará and Amazonas, in other words, Tapajós, where the Mundurucus live. To sum up: the Mundurucus could well become tomorrow’s Caiovás and Terenas. And the Caiovás have an average of half a hectare per family (a ratio considered below the minimum necessary for basic subsistence.)

RM: The government announced that it is going to compensate major landowners in Sidrolândia (Mato Grosso do Sul) who are in an area that has already been declared Terena land. The authorities used to say that there would be no legal support for this type of solution. What changed?

MCC: What is happening here is not that land is being bought. Instead, people are being indemnified because they are holders of property titles that, decades ago, the Federal Republic issued irregularly.

The titles were irregular because they covered indigenous lands. Therefore, this precedent does not apply to all of the areas where there is a conflict between private individuals, but only to those where the Federal Republic itself is the source of the conflict, because it passed indigenous lands on to third parties.

The titles were irregular because they covered indigenous lands. Therefore, this precedent does not apply to all of the areas where there is a conflict between private individuals, but only to those where the Federal Republic itself is the source of the conflict, because it passed indigenous lands on to third parties.

For this indemnification to happen, it is not necessary to move one comma of the existing legislation. All that’s required is the finalization of a judicial understanding by the Federal General Advocate—and the political will to appropriate the funds.

What Minister Gilberto Carvalo (the General Secretary) announced is the possibility of using money from the Treasury to compensate titles that some major landowners hold in good faith, for the lands that are tied up in court in Mato Grosso do Sul.

The states also gave out titles to lands that were indigenous. Lots of them. In Mato Grosso do Sul, the Legislative Assembly unanimously approved the creation of a fund to compensate, in cash, good-faith titles to indigenous land. It’s a solution similar to the one the federal government is proposing. But the fund in Mato Grosso do Sul doesn’t have a penny in it. In the case of the Federal Republic, already a parliamentary amendment has been approved and it sets aside $R50 million (approximately $US25 million) for agreements.

Right now, the most important thing is to prioritize the most dramatic cases involving the Caiovás. And to prevent favoritism for the greatest landowners and the creation of a new indemnification industry, like the one that bled the Treasury during the 1980s.

RM: Gilberto Carvalho also said that Brazil is ready to leave the list of countries accused of disrespecting Convention 169 of the International Labour Organization, which mandates prior consultation with indigenous peoples before making decisions that could affect their rights, like the construction of hydroelectric plants. Is there a reason to celebrate here?

MCC: The Secretary-General of the Presidency has been doing admirable work inside the government, trying to encourage rules that stipulate prior consultation with indigenous peoples, as required by Convention 169. But this still has to be lined up with the rest of the government, which is working at cross purposes.

Look at the way that hydroelectric plants were shoved down the throats of indigenous people in Tapajós. The government says that it wants to consult them about the hydroelectric complex, but at the same time it sets a date for the auction and even for the granting of the environmental license to the plants that it considers most important. What kind of consultation is that?

Real consultation happens inside the communities—not just with leaders or indigenous organizations. It happens according to the community’s own timeframe and in a language that they understand and in which they can express themselves. And it cannot be a one-time event. It must be a process that accompanies all of the phases of the project.

If everything is decided ahead of time, what are the Indians going to be consulted about? If they want little welfare payments to support fishing or fish culture tanks after the fish in the river are gone? The color of the wall at the dam?

RM: There was a significant increase in the indigenous population between 1991 and 2000, according to the Censuses in those years. But from 2000 to 2010, growth was proportionally lower than the growth of the population in general. Do you have any hypotheses about this “demographic volatility?”

MCC: Demographers explain this phenomenon. The “indigenous” category first emerged in the 1991 Census. Until then, most Indians declared themselves to be pardos (mixed-race), and also often Black or White. In 1991 and in 2000, there was a great migration: many of those who had earlier declared themselves pardos began to declare themselves to be indigenous.

This probably included what (anthropologist) Darcy Ribeiro called “generic Indians,” those who, being descendants of Indians, do not live in Indian villages and do not know the peoples to whom their parents or grandparents belonged. That may explain the 60,000 people who declared themselves indigenous in São Paulo in the 2000 Census.

In the 2010 Census, on the other hand, it is possible that these descendants of Indians may have been inhibited from declaring themselves Indian because the new Census form asked for their indigenous ethnicity and for the indigenous language they spoke. Thus some portion of the variation resulted from the Census form itself.

But since 1991, the indigenous population has grown more quickly than the non-indigenous population.

Between 1991 and 2000, indigenous population grew on the order of three and a half percent per year on average, and between 2000 and 2010, roughly the same growth rate obtained. But there continues to be a difference in infant mortality. Indigenous people still have a rate of infant mortality much higher than what is found among Blacks, Whites, and people of Asian descent.

RM: As a principle, the idea that the Indian has a right to land is a conclusion that has never been questioned in Brazil. You yourself have said as much. The Constitution of 1988 not only confirmed this principle, but also set up a deadline of five years for all of the demarcations. Why has this not been resolved up until today?

MCC: Colonial laws—and all of Brazil’s constitutions—have always recognized Indians’ rights to their lands. But principle is one thing and practice is another. In the classic fable, the wolf discovers successive justifications for devouring the lamb. (NB: Cunha’s own name means “sheep.”) As La Fontaine (a French writer from the 17th century) says, “the strongest side always has the best reasons.”

We are watching a remake of Brazil’s past, as if the twentieth century had never existed. We return to being commodity exporters. We return to exploiting riches without considering the human and environmental costs. And we also return to the ingenuity of the 16th and 17th centuries: the principle is affirmed, but the door is opened to exceptions that render it ineffectual.

That is what Complementary Bill 227/2012 tries to do. It defines the “relevant interest of the Federal Republic” with such latitude that the Indians’ constitutional guarantees become a dead letter.