Can the Indian...?
Carlos Frederico Marés (founding member of ISA, collaborator
of the Law Program-Programa Direito Sociambiental/ISA, jurist and former
president of Funai), answers questions frequently posed about the rights
of indigenous peoples in Brazil
Can indigenous people obtain identification
cards? And if they can, is there some type of ethnic identity?
Yes, the Indian can and should obtain an identification card, which
is the general registration of Brazilian citizens. Thus, everyone has
a right to this identification card, a right not an obligation. The
normal identification card, which is obtained from the police, is called
civil identification, and its function is precisely to prove one identification
wherever one travels and, where necessary, to present to Brazilian authorities.
Brazilian law does not permit or allow ethnic identification. The identification
card presents the name, parents and date and place of birth, but has
no information regarding ethnic identification, skin color or sexual
option. On the other hand, the indigenous people have a right to register
in the community where they were born. This registration, without doubt
is an ethnic identification.
There is no restriction in terms of voting for any Brazilian citizen.
All Brazilian cities have the right to vote. In theory there is no restriction,
but to vote a person must be enrolled in an electoral region his name
must be on the voting list, which is basically an electoral notary public.
The vote in Brazil is obligatory. If he is of age and can read and write
in the Portuguese language, he is obliged to vote. However, I understand
that if he lives in a village according to its uses and traditions and
the indigenous community collectively decides not to vote, this decision
prevails over the obligatory vote of the Brazilian legislation because
the indigenous communities have the constitutional right to live according
to their uses, traditions and customs.
The Indian can be a candidate, since he is a citizen with full rights.
To be a citizen, however, there are some restrictions, such as knowledge
of the Portuguese language, for some positions. If he fulfills these
requirements he can be a candidate since he is a citizen with full rights.
In this regard, see Indigenous Candidacies.
The two laws are within the same hierarchy, however, one does not prevail
over the other. But the Indian statute contains two situations which
places it above the Civil Code. First, it is newer, and the new law
that is contrary to an old law, revokes it. In the second place, it
is a special law and in accordance with general rules of law, the special
laws prevail over more general laws, and the Civil Code is a general
code of law. This means that the stipulations of the statute when they
are contrary to the Civil Code or any other prior or general law, prevail
over them.
No, the law presumes that all persons should know the reason why they
are receiving sanctions. Therefore, every sanction must be the result
of a legal process in which one clarifies the reason why the sanction
is being imposed and the reason for the act that was practiced. The
Indian always has the right to defend himself.
The state in itself does not have the decision-making capacity in this
regard, as a public entity. The only person who could decide on this
is the judge. The criteria used are criteria of proof, and as such,
very subjective and are connected to special expertise, especially anthropological
expertise. Therefore what must be taken into consideration is the situation
in which the judge, when he solicits anthropological expertise, can
only do so if the case is of such a magnitude to require this expertise.
That is to say, the decision of an act practiced in violation (or not)
of a member of an indigenous community can only be taken to a judge
if the Indian had caused damage to an individual or a collective asset.
All the assets of the community belong to the community as a whole,
therefore, they belong to the whole tribe; they are collective assets.
The Indians can sell, negotiate or dispose of these assets? They can
up to a specific limit. They can dispose of these assets but not the
land, evidently. The question now arises: can they sell these products
from the lands in their own benefit? No. The other question that causes
us to raise the question is related to profit as such. Profit has a
technical and economic concept, which is the result of the product of
the financial investment to obtain a specific advantage. That is to
say, in commerce, you buy to sell or in industry and agriculture one
produces to sell at a higher price than the investment. Therefore, if
one simply thinks of profit, if you say that the Indian can individually
buy an asset and sell this asset at a higher price, the answer is yes.
There is no restriction as long as the origin of the money is from him.
He can have his own money, he can have individual assets and with these
assets he has complete liberty in the present system. But he cannot
sell the assets that belong to the community.
...When he sells something must he pay taxes?
This is a sensitive problem. There are federal state and municipal
taxes, and each governmental entity has the authority to levy and exempt
taxes. In general there is no exemption for products for the consumer
market. And if there were no exemption, the Indians would be obliged
to pay. It is clear that is possible to set up an agreement with the
federal state or municipal government to avoid the payment of this tax,
this is called a tax renunciation, and there are limits in doing this.
But this is another one of the problems of public policies. It is clear
that the taxes only are levied on products that will be sold outside
the indigenous community, to the consumer market beyond the Indian lands.
Internally, in the indigenous areas and in the relationships between
indigenous people there is no tax levied.
In this regard see: Economic Activities
on indigenous lands.
The credit system depends on the policies for those persons allowed
to use the system.. The Brazilian government can open official credit
lines for the indigenous peoples whether or not they are on public lands.
The problem is not the nature of the land, but the requirements of the
bank. A bank can open a line of credit for specific activities in which
some indigenous groups may be included. There are no legal restrictions
in this sense. Now the private bank wants to do something advantageous,
obtain a profit. This is very difficult for an Indian to establish a
relationship with a private bank because the bank wants to earn a profit,
which it will be very hard to obtain. Public banks, however deal with
public money, and it is clear that they depend only on political good
will.
This is a question that is very complicated, but in principle no. The
official language of Brazil is Portuguese. However, it is permitted
in the case of the indigenous peoples to use their native language for
all purposes, including judicial process.es. However, the language cannot
become the official tongue of a municipality. There are no official
languages of a municipality--the official language is Portuguese and
is valid for all of Brazil, and the native languages are admitted as
associate languages with Portuguese.
Yes he can, for all public positions he is qualified for. For example,
he cannot be a judge unless he has a law degree. Each competition or
test for a public position has different requirements, such as a specific
course, special type of education or schooling level that must be adhered
to. If he meets these requirements he has the total freedom and right
to participate in the examination or competition.
Our copyright legislation does not deal with collective copyrights.
It is limited to individual copyrights. However, there must be some
form of convergence between the rights established in the constitution
and the infra-constitutional legislation, even if there is no guarantee
via the legislature of collective copyrights. But it is possible to
guarantee them in another form even if there is no law, through exacts,
for example of recognition by government entities that a specific asset,
a specific work is a collectiv product.. The Museo do Índio,
o Museu de Arte Nacional, a Biblioteca Nacional and theInstituto de
Patrimônio Histórico are capable of deciding on this question.
In this regard see copyrights and
rights related to images.
This is not a question of permissibility but one of legitimacy. What
is permissible is everything that the law allows or does not prohibit.
Therefore one can say that this negation is not permissible from the
point of view of Brazilian law. But it is legitimate from the point
of view of the claims of a people. Therefore, we have to separate what
is permissible in Brazilian legislation and what is legitimate as the
right of a people. Therefore it is legitimate from the point of view
of the rights of a people but it is not permissible from the point of
view of Brazilian law.
Interview in 2000 by Thais Chueiri and Lilia Toledo Diniz at
the time trainees in the Law Program- Programa Direito Socioambiental/
ISA.
