The Judiciary
Introduction
After The Constitution of 1988, the indigenous question began to be
dealt with more and more in the judiciary sphere, which, although in
many cases it did not correspond to the expectations of the Indians,
was responsible for legal decisions, which gradually began to implement
their rights.
The considerable increase in the number of law suits on indigenous
rights in recent years was due to a series of factors: the fact that
the communities themselves began to file suit in defense of their interests;
the role of the prosecutors’ office, the filing of many suits;
and on the other hand, the reaction of those persons who asserted they
were the owners of the lands in litigation, who felt they were incurring
losses, and, prior to the demarcation process of indigenous lands, went
to court to claim what they considered their rights.
The truth is that the indigenous question is no longer an exception
in the court routines. For example in the first Federal Court in the
states of Pará, Mato Grosso, Mato Grosso do Sul and the Federal
District of Brasilia, there are constantly cases filed on indigenous
rights. The same can be said of the federal regional courts of Brasilia
and Sao Paulo.
The historical decision occurred in September 2000 when the federal
regional court condemned the federal government and Funai to indemnify
the indigenous Panará communities for the deaths that occurred
after the beginning of contacts—systematic or not the Indian community
declined demographically to nearly one third of its population.
In the following topics, Ana Valéria Araújo (lawyer,
ISA's collaborator) analyzes the decisions of the judiciary in terms
of indigenous rights from the new 1988 constitution, decisions which
in some cases guaranteed these constitutional rights, while in other
cases, interpreting and distorting these rights, gave signs that the
judges themselves undo the laws. This analysis is concentrated on the
period from 1989 to 1994.
Brazil’s Superior Court and Indigenous Peoples’
Rights
The Superior Court (STJ) appears to have turned into a forum that acts
against the consolidation of the constitutional rights of indigenous
peoples. The Superior Court in Brazil is the last resort for most appeals,
as foreseen in the country’s legal process. The Superior Court is also
the appropriate forum for analyzing acts of government ministries, among
other functions. The Federal Superior Court is composed of 33 ministers
of presumed capacity and experience, although some of the strangest
interpretations on legal issues have arisen on questions related to
the rights indigenous peoples.
The most serious cases arose for the first time in the judgment of
the injunction filed by the sugar mill companies Rio Vermelho Agropastoril
Mercantil S/A, Destilaria Miriri S/A, as well as by Usina Central Nossa
Senhora de Lourdes S/A, against the Instruction/ Portaria by the Ministry
of Justice, which on June 1, 1992, delimited the Potiguara Indian tribal
lands known as Área Jacaré de São Domingos, in the state of Paraíba.
The sugar mill companies, all represented by the attorney at law Mr.
Oscar Dias Correia, former judge of the Federal Supreme Court and minister
of justice during the government of former President José Sarney,
sought to annul the aforementioned Instruction/Portaria, alleging that
the area had not been traditionally occupied by indigenous communities.
Court issues decision contrary to jurisprudence
In a decision contrary to prevailing jurisprudence in the Brazilian
courts, which affirms that the injunction (MS) is not the appropriate
instrument to discuss these questions that depend on a substantial analysis
of evidence, which is only possible to obtain by means of a normal procedure,
the judges of the first section of that court accepted the document
presented by the sugar mill companies as sufficient pre-established
proof. The sugar mill companies’ ownership of the area, in the judges’
opinion, was a fact that was not contested by the Ministry of Justice
or by the federal prosecutors when they made their testimony in the
court documents related to the case. The judges, therefore, issued their
decision based on their understanding that the sugar mill companies
had not been called upon to participate in the administrative process
of delimiting the lands, and, as a result, their land titles were not
taken into consideration, as per § 6° of Article 231 of the Federal
Constitution, which states that their full rights are null and void.
The judges, however, expressed their opinion that this must be declared
in a specific procedure.
This erroneous decision on the part of the judges caused a great deal
of concern. Although the judges based their opinion on the premise that
in the Federal Constitution the “private property concept was somewhat
distant from the traditional concept, the acquired right of the private
individual was excepted. The judges ended their opinion expressing their
understanding that Article 231 presumed the verification of the traditional
occupation of the lands by the indigenous community by means of a court
action delimiting the land, which, according to an even more absurd
interpretation, would have a 5-year time frame, in accordance with Article
67, dealing with Transitory Constitutional Regulations ( Disposições
Constitucionais Transitórias), that is to say, in a time frame when
it is not necessary to file a discriminatory suit to examine the legitimacy
of the land titles and “then say the lands belong to private individuals
or to the indigenous communities.”
Consequently, these judges concluded that the executive branch of the
government is not authorized to reserve any area for indigenous communities
as long as a court suit is still underway over that specific area,.
The judges invoked the idea of preserving the “social peace.”. Since
the “principles based on the relationship with indigenous nations” cannot
be understand in such a way as to “sow discord or social maladjustment
or, with the sacrifice of citizenship rights obtained with great effort
and struggles, sown by the Federal Constitution.”
Distorting the concepts
The main target of this court case was, as can be observed, Item III
of the Ministry’s Instructions/Portaria , which referred to the interdiction
of the Área Indígena Jacaré de São Domingos and , consequently implied
in the expulsion of the illegal occupants, in this case the sugar mill
companies which had titles to the deeds of property. In order to prevent
this interdiction and expulsion from occurring, these judges of the
Superior Court interpreted the norms by distorting the concepts and
concluded that the interdiction of an indigenous area could only occur
under exceptional conditions, and that Decree 22/91 had no legal basis.
This decree incorporated the administrative process of the delimitation
of the indigenous area. These Superior Court judges justified their
position by expressing the opinion that “the cultural aspects and the
recognition of the right of the indigenous communities to the permanent
possession of the lands that they occupy” is not dependent on the prohibition
of access of the area by third parties.
Oddly enough, they reached a correct judgment by recognizing that the
indigenous community rights are really not conditioned to any administrative
act of interdiction. These rights are prior to these administrative
acts, as conceived by the Constitution. On the other hand the judges
closed their eyes to the obligation of the federal government, which
is also stipulated in the Federal Constitution, to protect the indigenous
lands and guarantee the indigenous communities’ rights to exclusive
use of the natural resources existing on them. Regarding these concepts,
the communities’ rights include the need to prohibit the entry, transit
and permanence of unauthorized third parties on those lands that are
classified as the permanent property of a specific indigenous community.
Without this prohibition it is not possible to protect or guarantee
their exclusive rights. The legal basis of this prohibition is written
in the federal constitution, although the judges of the aforementioned
Superior Court have questioned and combated this interdiction. They
did not see this because they didn’t want to.
During the whole court suit on this injunction, the judges of first
section of the Superior Court followed with an absurd interpretation
of the constitutional regulations related to the indigenous communities
and, either intentionally or by error, have attempted to annul the advances
achieved by the Federal Constitution of 1988.
Inverting the burden of proof
The judges of the aforementioned section of the Superior Court even
went so far as to affirm that, in this case, there were indications
that the area is not an indigenous community land because titles to
the land (held by the sugar mill owners) existed. As a result, the judges
continued, “in the light of the guarantee of the right to property,
the Funai could not obtain data and the Ministry could not declare,
immediately, that a specific area is traditionally occupied by the indigenous
communities.” The judges expressed their opinion that the Ministry made
an arbitrary decision on declaring, in an Instruction/Portraia, that
all this documentation (referring to the titles to the land presented
by the sugar mill owners) legitimately registered in a notary public
office, until proven contrary, had no legal value.” According to the
judges,” the constitution guarantees this right to property until proof
to the contrary”.
This decision by the judges of the aforementioned section of the Federal
Superior Court managed to invert the burden of proof completely, obliging
the indigenous communities to prove that they were on the land before
the sugar mill owners, ranchers, lumbermen, grubstake miners or anyone
else who decided to take over their lands and their rights to them.
The judges decided to completely ignore the constitutional guarantee
regarding the original rights of the indigenous communities to their
lands, rights which prevailed over and annulled any act that contrary
to these rights. In this way the judges placed at risk the whole process
of delimitation of indigenous community lands in the country, a process
that was becoming consolidated at the cost of immense efforts in recent
years.
The decision which annulled item III of the Instruction/Portaria of
the delimitation of the Área Jacaré de São Domingos generated a series
of other decisions of the same context, by which, it was temporarily
impossible to continue the process of delimiting various indigenous
areas in states such as Mato Grosso do Sul and other regions where there
are serious problems of lands which were invaded and occupied by large
landholders. These decisions should be made by the Federal Supreme Court,
a court whose duty it is to safeguard the Federal Constitution in the
last instance. The position is that the Federal Supreme Court must change
this understanding and restore the full legality of the decision of
the Ministry of Justice, while at the same time remitting to all the
lower courts any other remaining questions.
The Regional Federal Courts
In an effort to exemplify how the Judiciary can really violate or
cancel the rights of others on interpreting the law, one should also
mention other decisions issued by the Regional Federal Courts (TRFs)
– a court level that revises the decisions issued by federal judges.
There are five regions in the whole country.
Cases in "Mato Grosso do Sul" State
The TRF of the third region (that includes "Mato Grosso do Sul"
and "São Paulo" state, where the court forum is located) for
example, has specialized in recent years in guaranteeing Funai the right
to delimit a specific indigenous area, without allowing the indigenous
communities to occupy them. There are numerous cases referring to the
lands of the Guarani in Mato Grosso do Sul, whose areas were included
in Instructions/Portarias of the Ministry of Justice, lands invaded
and occupied by large landholding groups. Taking legal action against
these Instructions, the landholders, each one, one at a time, filed
injunctions in the Federal Court in Campo Grande, Mato Grosso do Sul,
which, thanks to the implacable goodwill of the judges in favor of the
landowners’ positions, in an effort to block the indigenous communities
from returning to their lands, these judges invariably issued injunctions
calling for the interruption of the delimitation process and the maintenance
of the invaders in the area. All these injunctions were contested at
the Federal Court level in São Paulo.
The TRF/São Paulo, also issued injunctions to set up a method (which
was very convenient for the judges) to interpret the law in detriment
to the law: they began to guarantee the right of the continuity of the
administrative process of delimitation without allowing the indigenous
communities to reoccupy their lands (avoiding, therefore, the possible
violation of any rights of the landholders). The justification of this
position, although never formally expressed, was the need to safeguard
“landowners who held title to lands” from the possible economic losses
resulting from the damage to their assets, in the event the indigenous
communities reoccupied the lands.
Once more the judiciary refused to apply the laws of the Constitution,
twisting and distorting the laws so they could benefit other interested
parties. To be fair, all these decisions could still be modified by
the court itself, which must judge the merit of these decisions. Furthermore,
it may be possible to foresee the results from a more optimistic perspective
due to a recent court decision in the case of the Jaguari Area, where
the law was applied adequately, benefiting the communities of the Guarani
located in Mato Grosso in Sul for the first time in history. The decision
of the federal court in Campo Grande was completely overruled, and the
administrative process which had begun the delimitation of the indigenous
community land was authorized to continue in that area, the landholders
were instructed to leave the area, and the indigenous communities were
authorized to reoccupy their lands.
Yanomami People and "Vale do Javari" Indigenous Land
The Regional Federal Court (TRF) of the First Region (which includes
the states of the Northern Region, "Maranhão", "Mato
Grosso", "Minas Gerais" and the Midwest region, which
includes the Federal District, Brasília, where it is located) also imposed
certain obstacles to the consolidation of indigenous peoples’ rights.
Due to the omission of the federal government in beginning or continuing
the administrative processes for the delimitation of some indigenous
areas, the federal prosecutors’ office (Ministério Público Federal)
filed a suit in Federal Court in Brasilia in order to obtain the recognition
of the indigenous peoples lands of the Yanomami and the "Vale do
Javari". This problem with delimitation also occurred in the case
of the Yanomami and the Vale do Javari, where there were numerous charges
if invasion and illegal extraction of hardwoods, endangering the conditions
of the indigenous peoples who live in the area.
In both cases, the suits were filed against the federal government
and Funai. The suit documents contained information on the existence
of an administrative suit in progress related to Funai. Since there
were administrative suits inside Funai, the judges in this case considered
this sufficient motive to reject the continuation of judicial measures.
The court understood that the continuation of the judicial measures
would have lost their purpose. That is to say, in the judges opinion,
no dispute or conflict should be settled by the judiciary starting from
the moment in which the federal government administration begins the
first steps to take the proposed measures - demonstrating that there
was nothing to oppose.
These decisions by the judges, however, failed to consider that the
law suit classified as a “declaratory action” is the appropriate instrument
to obtain the certainty of a right, a certainty that is not assured
by the simple initiation of a process to identify an indigenous area
nor is it assured by the final act of an administrative process undertaken
for the delimitation of land. After all, at least theoretically, any
administrative act can be changed or reviewed by authorities at any
time.
To deny the continuation of the court suit means to prohibit the indigenous
communities from obtaining a decision in court attesting to their ownership
over the areas in question, a sentence or decision which is unchangeable
and capable of guaranteeing the perpetuity of their rights.
Appeals were filed in both cases, and the TRF of Brasília dealt with
these appeals in the same way. The Court upheld the refusal. The reasons
for this decision, however, are frightening. This is what the judge
reported in one of the suits: “And what would result from this measure?
The juridical certainty transformed into a matter that has already been
judged upon? For what reason? To guarantee the Yanomami community an
area which, as the documents in the suit reveal, has never been denied
them? What is the uncertainty? It is my understanding that the suit
cannot serve as an instrument for a future guarantee, creating an obstacle
composed of technical and political decisions of the greatest relevance
to a matter on which judgment has already been passed. One should not
lose the perspective that the person who makes the judgment must not
only undertake a mental exercise regarding the theory of the process
or suit. As it is a political entity, the person who issues this judgment
must evaluate the procedural interest on a concrete basis, in the light
of the social and political facts that orient the conflicts of interests.”...
With these comments, the TRF made it clear that, contrary to the basis
of Brazilian law, which ensures all citizens the right to obtain judgment
on certain matters, one cannot presume that the judiciary will guarantee
the future of the indigenous community rights. Is the judiciary using
double standards?
Law suits put on back burner
The truth is, the judiciary has sometimes become an obstacle to the
consolidation of the rights of indigenous peoples. They have blocked
these rights not only by doubtful interpretations of the law. In several
cases the judges, when they cannot make a decision contrary to the rights
of the indigenous peoples, have chosen to “put in a dead file” the law
suits—leaving the suit documents in their desk drawers, thus making
it impossible for the suit to proceed.
Justice is slow, and this slowness affects everyone, not only the indigenous
communities. However, there are situations in which, without a doubt,
these delays are not not merely the result of overworked judges and
court staff. . By failing to issue a decision this is the only way of
avoiding settling the question. The suit filed by the community Gavião
da Montanha against Eletronorte, has been in the federal court in Belém
since 1989 and the appeal filed by the Guarani community of Jaguapiré,
has been in the hands of its rapporteur—a judge of the TRF/SP--since
1991. The suits were in conditions to be judged years ago, but the judges
have stubbornly issued no decisions in these cases.
The judiciary that does its duty
In the light of the above, one might think that the efforts to expand
the role of the judiciary in indigenous peoples’ rights were of no avail.
This is not true. Despite certain concepts and prejudices, the indigenous
communities have achieved some significant victories in the courts.
The aforementioned decision of the TRF/SP regarding the Jaguari community
lands, for example, has begun to reverse a series of arbitrary acts
committed against this Guarani community in the state of Mato Grosso
do Sul. The judiciary recognized that the unconditional right of the
indigenous community to their lands, based on the sovereignty of the
federal government to direct and allocate its assets overruling any
other interest. This decision resulted in the return of this Guarani
community to their lands where they had been expelled many years ago,
and the withdrawal of the invading ranchers in an operation that involved
court officials, agents of the Funai, the federal police and a large
segment of the military police of the state of Mato Grosso do Sul. The
Guarani community of Sete Cerros obtained an injunction from the Federal
Supreme Court which enabled them to prevent a woman judge of the 2d
Federal court in Campo Grande—a judge who issued many judgments against
indigenous rights—from continuing to judge this case. It is believed
that this Guarani community will regain its lands shortly.
The idea that a specialist in anthropology is needed to express a technical
opinion, requested by the court, regarding indigenous communities has
been accepted by judges in recent years. These judges not infrequently
issue a request to the Brazilian Anthropological Association ( Associação
Brasileira de Antropologia) to list three names of qualified professionals
to analyze a specific case. As a result, the task of verifying, among
other duties, the existence of vestiges of a specific indigenous community
over a specific area, should no longer be given to agronomists or surveyors,
as had been the case previously.
The judges have been unanimous in waiving the payment of the court
costs and judiciary fees and other process costs for the indigenous
communities, and have given them the same privileges that they give
to the finance ministry. These judges have also facilitated access of
these communities to the judiciary process. As a result the indigenous
communities must only pay some cost if they lose the suit at the end
of the whole court process.
It should be emphasized that injunctions were issued to remove lumber
companies from indigenous areas in the state of Para. These decisions
caused an enormous impact in the region, which suffered mercilessly
from these lumber companies that had no scruples whatsoever. Furthermore,
the federal court of the state of Mato Gross condemned to other lumber
companies to indemnify the Nambikwara indigenous communities for lumber
stolen from them. These companies were also condemned to pay the costs
of reforestation in these areas. All these decisions—innovative to say
the least—have begun to put a stop to the environmental degradation
on the indigenous communities’ lands in these areas.
More recently, the Federal Supreme Court, guaranteed the Krenak indigenous
community the right over their traditional lands. These lands, located
in the Vale do Rio Doce, between Minas Gerais and Espírito Santo, had
deed of titles issued to 54 landholders in the 1970s, and the Krenak
community was forcibly removed from the area. The Federal Supreme Court
annulled these deeds of title and did not recognize the rights of the
landholders to remain in the area while they discussed questions regarding
indemnities for supposed improvements on the land. The judges guaranteed
the Krenak the right to return immediately to their lands. In this case
the Federal Supreme Court recognized that the indigenous community rights
prevailed over all other interests.
If it is true, therefore, that the judges at times undid the laws,
it is also true that the same judiciary system consolidates the laws.
After all, the indigenous peoples rights have been put to the test and,
slowly but surely, they have been able to win judicial support. It is
still a challenge to achieve the full recognition of these peoples’
rights. It is a slow process, which requires efforts to educate the
judges regarding the modern conceptions of the Law. The implementation
of legal rights is a victory that must be won day after day by the indigenous
communities themselves, their organizations, the public prosecutors,
lawyers and everyone who deals with these issues. (Ana Valéria Araújo
– janeiro/ 1995).
