Introduction
The
demarcation of a TI is intended to guarantee the Indians’
right for the land. It should establish the real extension of
the area under Indian possession, assuring the protection of the
demarcated limits and keeping invaders away.
Since the Statute of the Indian was approved in 1973, this formal
recognition has had to follow certain administrative procedures,
in accordance to Article 19 of the Statute. These procedures stipulate
the stages of the long demarcation process. They are regulated
by an Executive decree and, with the years, have gone through
many alterations. The most recent one was defined by Decree 1,775,
of January, 1996.
See below the stages of the long process of demarcation of Indigenous
Lands (TIs).
(1) Studies of identification
First, Funai appoints an anthropologist with recognized qualification
who will produce an anthropological study of identification of
the TI within a given time limit.
The anthropologist’s study substantiates the work of a specialized
technical group, which will carry out additional studies of ethno-historical,
sociological, juridical, cartographic and environmental natures,
as well as a land survey. The group must be coordinated by an
anthropologist and should be composed preferably by technicians
from Funai’s staff. The group has to present Funai a report
containing specific elements and data listed on Directive nr.
14, of January 9, 1996, as well as the characterization of the
TI to be demarcated.
(2) Funai approval
The report has to be approved by the president of Funai, whom,
within 15 days, will have its summary published in the DOU (Diário
Oficial da União - the Federal Government’s official
publication) and in the Diário Oficial of the State where
the future TI will be located. The publication must also be displayed
in the local Prefeitura (city government).
(3) Disputes
From the beginning of the procedures up to 90 days after the
publication of the report in the DOU, anyone interested, including
States and municipalities, may manifest her/him/itself by presenting
Funai her/his/its arguments, along with all pertinent proofs,
with the aim of demanding indemnification or demonstrate vices
in the report.
Funai has then 60 days, in addition to the 90 mentioned in the
paragraph above, to elaborate opinions over the arguments of all
interested parties and hand over the process to the Ministry of
Justice.
(4) Declarations of limits of the TI
The minister of Justice will have 30 days to: (a) emit a directive
declaring the limits of the area and determining the beginning
of its physical demarcation; or (b) prescribe judicial proceedings
to be carried out for 90 days more; or, (c) disapprove the identification,
publishing a decision substantiated upon paragraph one of Article
231 of the Constitution.
(5) Physical demarcation
Once the limits of the area are declared, Funai promotes its
physical demarcation. At this stage, INCRA (Instituto Nacional
de Colonização e Reforma Agrária - National
Institute for Colonization and Agrarian Reform) will give priority
to the resettlement of occasional non-Indian occupants of the
TI.
(6) Homologation
Finally, the demarcation procedure must be submitted to the President
of the Republic for homologation by decree.
(7) Registration
The Indigenous Land, demarcated and homologued, will then be
registered, within a maximum of 30 days after homologation, in
the notary of the correspondent judicial district and in the Serviço
de Patrimônio da União - Service of Patrimony of
the Union - (SPU).
The procedures for the demarcation of TIs in Brazil have changed
several times in the past recent years. See below a summary of
what were the demarcation procedures from 1976 until January,
1996, when the current procedure was instituted by decree 1,775.
Decree 76,999, of January 8, 1976
Funai’s president appointed an anthropologist and an engineer
or a land surveyor, who made the report, which contained the previous
identification of the area limits. Funai’s president then
approved the report - although the legislation did not specify
it, that was done through a directive. Based on it, the physical
demarcation of the area was carried out.
After demarcation, the process was submitted to the President
of the Republic for homologation. The lands were then registered
in the notary and in the SPU.
Decree 88,118, of February 23, 1983
Funai’s technical staff made the preliminary identification
of the area, which resulted in a proposal made by Funai to a Grupo
de Trabalho - Work Group - (GT) formed by representatives of ministries
and of other federal and State organs, when deemed necessary.
The GT emitted a conclusive opinion and submitted the process
for the decision of the ministers of the Interior and Extraordinary
for Land Questions.
If approved by them, the process was taken, along with a draft
of a decree, to the President of the Republic, who would homologue
the procedure and describe the limits of the recognized Indigenous
area. The physical demarcation was then carried out based on the
decree and, after that, registered in the notary and in the SPU.
In truth, however, there were two presidential decrees: in the
first one, the president of the Republic simply delimited the
area to be demarcated. Following the physical demarcation, the
process returned to his hands for homologation through another
decree. After that, the land was registered.
Decree 94,945, of September 23, 1987
The technical staff, which made the preliminary identification
of the limits of the area, had the participation of representatives
of Federal and State land organs, as well as other organs Funai
deemed convenient. If the lands were located along an international
border, the presence of a representative of the secretary-general
of the National Security Council was mandatory.
Based on the work of the technical staff, Funai presented a demarcation
proposal to an inter-ministerial GT, which emitted a conclusive
opinion about it, which was submitted to the ministers of the
Interior, of the Agrarian Reform and Development, and to the secretary-general
of the National Security Council in the case of lands located
along international borders. But, in fact, the secretary of the
National Security Council decided all cases.
Once approving the judgement, the ministers emitted an inter-ministerial
directive declaring the area of Indian occupation and describing
its limits. Funai then carried out the physical demarcation, and
once it was finished the process was submitted to the homologation
by the President of the Republic. After that, the lands were registered
in the notary and in the SPU.
Decree 22, of February 4, 1991
Funai created a GT of technicians, coordinated by an anthropologist,
in order to proceed with the preliminary survey of the limits
of the TI under consideration - the interested Indian group could
take part in it - and elaborate a report with the characterization
of the area to be demarcated. Once approved by Funai’s president
and published in the Diário Oficial da União (DOU),
the process was turned to the minister of Justice, who could demand
additional information from other public organs. The minister
then declared the land of permanent Indian possession, through
a directive published in the DOU. If he did not approve it, he
should re-examine the case within 30 days.
Next Funai, based on the limits established by the minister’s
directive, could carry out the physical demarcation of the land.
When necessary, INCRA should proceed with the resettlement of
the non-Indian occupants of the land. When the demarcation was
concluded, the process was submitted to homologation by the President
of the Republic, through a decree published in the DOU, following
the registrations in the notary of the corresponding judicial
district and in the SPU.
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