Indigenous
Land Regularization in Latin America
Andrew M. Crain, Esq.
Table of Contents
Introduction
Latin Americaís
Indigenous Inhabitants and Their Lands
Rights at the International
and Regional Levels
Rights at the
National Level
Recent
Modifications
Privatization
Overlapping
or Ambiguous Legislation
Growth of
Indigenous Organizations
Analysis of Key
Issues
Impossibility
of Generalizing
Distinct
and Urgent Needs: Land Regularization for Lowland Communities
Weak
Government Agencies and Administrative Problems
Modern
Surveying Techniques
Security
Realities
Conclusion
Introduction
Highway Building and
Settlement
Mining
Logging
Oil Development
Conclusion
Chapter Three: Indigenous Land Regularization
in Argentina
Introduction
Indigenous Argentina
The Law of Indigenous
Land Regularization
Indigenous Land
Regularization Realities and Key Considerations
Conclusion
Introduction
Indigenous Brazil
The Law of Indigenous
Land Regularization
Indigenous Land
Regularization Realities and Key Considerations
Conclusion
Indigenous
communities worldwide are united by unique and all-important connections to
their traditional lands.[1]
Much more than just economic or geographic, indigenous communtiesí
relationships with their lands encompass spiritual and cosmological
perspectives. Indigenous communties do not view land as a commodity available
for sale or lease, but rather as a comprehensive system of resources to be
utilized, respected, and maintained for future generations. Indigenous
conceptions of land, therefore, often do not comport with Western theories of
property ownership, a reality which has caused considerable difficulties in the
efforts of many communities to reclaim traditional land rights.
As Spanish,
Portuguese, and other interests colonized the region now known as Latin
America, the land and natural resource rights of the areaís original
inhabitants changed dramatically. Colonial administrations typically forced
indigenous communities to pay tribute to the Crown and relegated them to the bottom
of the social, political, and economic ladder.[2]
Indigenous communities, however, were often permitted to retain their lands and
resources.[3]
The independent countries which emerged in the nineteenth century, following
the colonial period, radically altered indigenous land and resource rights
again. Indigenous communities were subjected to a series of laws and policies
intended to assmiliate them into ìnationalî societies.
In the past
decade in Latin America, times have changed once again. Many countries have
revised their laws and policies that govern indigenous land and natural
resource rights. New constitutional articles and indigenous legislation
throughout the region now recognize indigenous communtiesí rights to
traditional territories, lifestyles, and cultures. Administration and
enforcement of indigenous land rights, however, remains varied throughout the
region. Some indigenous communities have succeeded in regularizing, or securing
full rights to, their traditional lands. Other communities continue to struggle
against complicated government bureaucracies, deeply-ingrained political
obstacles, and the effects of widespread privatization in the region.
This study
examines indigenous land and resource rights in Latin America. Chapter One
identifies and discusses several of the key issues surrounding the laws and
policies which now govern indigenous land regularization in the region. Chapter
Two analyzes the impacts of major development activities in indigenous
communities, including highway building and settlement programs, mining,
logging, and oil development. Chapters Three and Four are case studies of
indigenous land regularization in Argentina and Brazil, which illustrate many
of the key issues from Chapter One is greater detail. Finally, the study closes
by offering Conclusions and Final Recommendations.
Chapter One: Key Issues in Indigenous Land Regularization
All the
knowledge of our community is based on a permanent relation with the places
where we live. Indian territories are not only physically, but rather
culturally, located. Communities that live in a valley see the river and the
mountains in a distinct manner from how a geologist or biologist does. For us
the mountain has a name, it has children, and it has loved ones.[4]
Introduction
For
many indigenous communities,[5]
land represents the cornerstone of their cosmologies and worldviews. Rather
than simply a place to dwell or sow crops, indigenous conceptions of land often
encompass the whole of life, including complex connections with deities and
ancestors. In the Mayan cosmovision, for example, the Sun represents the
Father, the Moon the Grandmother, and the Land the Mother. The very name of an
indigenous community in the modern states of Argentina and Chile --ìMapucheî--
means ìpeople (ëcheí) of the land (ëMapuí).î[6]
Today
indigenous communities often face intense pressures for their lands and natural
resources, as populations expand and non-indigenous society continues its
efforts to develop new economic frontiers. Mindful of indigenous rights at
least in theory, governments in Latin America have recently enacted important
legal changes which recognize these communitiesí rights to land and natural
resources. As a result, many indigenous communities in Latin America now enjoy
the most secure land tenure and greatest control over natural resources of any
time in recent memory. But problems and weaknesses remain in many parts of the
region, as poor administration, ineffective enforcement, and a frequent lack of
political will handicap meaningful recognition of indigenous land and resource
rights.
A
key element in indigenous communitiesí struggles to protect their lands and
exercise control over their natural resources is land regularization.[7]
A recent paper by the United Nations Working Group on Indigenous Populations[8]
found that land regularization is the ìgreatest single problem for indigenous
peoples today, in terms of frequency and scope of complaints.î[9]
Similarly, a World Bank evaluation of forty two indigenous development projects
concluded that ìproblems concerning security over
land and natural resources were significant to the failure of sixty three
percent of unsuccessful cases.î[10]
Insecure land tenure can contribute to dangerous and volatile situations, as
land conflicts are often the principal cause of violence between indigenous and
non-indigenous inhabitants in Latin America.[11]
Land
regularization is a crucial step in many Latin American indigenous communitiesí
struggles to protect traditional lands, lifestyles, and cultures. Legal recognition
of their physical realms provides a starting point for future advancements such
as greater bargaining power, increased social or political autonomy, and more
meaningful participation in setting the development agenda for their
communities. The subsequent benefits of successful land regularization can be
impressive, as the experiences of the Shuar Federation of eastern Ecuador
illustrate.[12] One of the
oldest indigenous organizations in Latin America, the Shuar Federation
coordinated the needs of geographically dispersed communities and successfully
petitioned the Ecuadorian government for collective land titles in the late
1960s and early 1970s. Once land tenure was secured, the Shuar Federation used
the organizational networking established in its land regularization efforts to
implement other successful programs, including a bilingual radio school program
and a credit for cattle program to slow the trend of deforestation in Ecuador
in the early 1980s.[13]
Indigenous land regularization efforts in Latin America
today must contemplate a variety of complex and important issues. First and
foremost, the tremendous diversity among the regionís different indigenous
communities makes generalizations very difficult to come by, and likely
inaccurate. The broad range of legal frameworks which determine indigenous
communitiesí land and resource rights in the different countries further
complicates the difficulty and weakness of generalized solutions.
Second,
most indigenous communitiesí cosmologies or belief systems do not conceive of
land as an alienable, saleable commodity,[14]
which differs significantly from how land is normally viewed under Western
systems of property ownership.[15]
Nor do indigenous communities view their surroundings ñ trees, minerals, water,
animals, and plantsóas ìresourcesî to be exploited for profit.[16]
Rather, many of Latin Americaís indigenous communities are spiritually
interconnected with their lands and resources, utilizing the Earthís products
for subsistence while simultaneously managing the lands and resources for
future generations.[17]
As such, programs or efforts aimed at regularizing indigenous lands must
contemplate local indigenous belief systems and the differences between those
systems and state land ownership policies. At a minimum, land regularization
programs must provide for collective land ownership and community management of
natural resources.
The troublesome gap between indigenous and Western legal
concepts is also evident in the administrative processes used to regularize
traditional lands. Many Latin American land regularization schemes require
indigenous communities to organize according to Western administrative concepts
or formats. These forms of organization differ markedly from traditional belief
systems and forms of community organization. For example, a number of Latin
American countries which recognize indigenous rights to traditional lands
require native communities to obtain their ìjuridical personalityî ñ
essentially registration with the government as a legally-recognized entity --
before the land can be titled. Procedural ill-fits such as the juridical
personality requirement have been criticized by indigenous organizations and
commentators for their imposition of non-indigenous forms of organization upon
indigenous communities.[18]
In some instances, these procedural ill-fits can cause legal uncertainties
where communities do not fulfill certain administrative duties required to
maintain their ìjuridical personality,î such as the annual filing of accounting
information. Such legal uncertainties could jeopardize the long-term security
of indigenous land title, however, if an opposing interest were to show that
the indigenous landowners never complied with procedural requirements.
The lack of security under which many of Latin Americaís
indigenous communities now live also heavily influences land regularization.
Illegal mining, logging, and ranching activities, guerrilla movements, and
narco-trafficking often determine on-the-ground land tenure realities in remote
indigenous communities to a much greater extent than new constitutional
articles or legislation passed in the distant capital.
Another key element in indigenous land regularization in
Latin America is that todayís efforts and programs must form a component part of
larger resource management planning, rather than simply being distributions
ofÝ land titles. Land titles granted
without integrated planning for long-term management of resources and/or
economic development leave communities only marginally better off than before.[19]
This planning must include involved and meaningful participation of the
indigenous communities affected, so as to utilize unique indigenous knowledge
about the local ecosystem. Planning efforts should include training components
and technical assistance to reduce the lasting effects of government
bureaucracies upon indigenous communities. Past research discusses the need to
train indigenous representatives in at least the basics of market-based
economics.[20]
Latin
Americaís Indigenous Inhabitants and Their Lands
At
least thirty-four million indigenous people live in Latin America and the
Caribbean today,[21] or roughly
eight percent of the regionís total population. These communities speak more
than four hundred languages and stretch geographically from Mexico to the
southern tip of Argentina. Bolivia is home to the largest proportion of
indigenous peoples, where highland campesino farmers and lowland forest
dwellers account for sixty to eighty percent of the population.[22]
Indigenous inhabitants also represent between thirty and seventy percent of the
populations of Guatemala, Peru, and Ecuador.[23]
These four countries and Mexico account for roughly ninety percent of Latin
Americaís total indigenous population.[24]
Indigenous
communities often differ drastically from each other and from non-indigenous
society in terms of culture, lifestyle, and economic activities. Some
indigenous communities have long histories of contact with non-indigenous
society, while others are just now being contacted as new actors seek to
exploit their traditional lands and resources. The majority of Latin Americaís
indigenous populations live in rural areas; although indigenous communities
account for eight percent of the total regional population, they make up
twenty-seven percent of the rural population.[25]
Latin American indigenous communities generally have higher than average
mortality rates,[26] shorter
life expectancy,[27] and suffer
from the effects of inferior health care,[28]
abject poverty,[29] and
political marginalization.
Today,
major development activities such as mining, oil and gas drilling, timber
harvesting, competition for water, infrastructure projects, and rural
settlement programs pressure Latin Americaís indigenous communities and the
all-important connections they have to their lands.[30]
In response, indigenous communities and organizations, along with
non-indigenous NGOs, have denounced the impacts of these development
activities, insisted on a greater participatory role in project planning, and
struggled to reclaim indigenous rights. This battle often requires indigenous
claimants to navigate complicated legal regimes and administrative systems, as
well as confront considerable political obstacles. The crippling effects of
government beauracracies is often cited as the number one obstruction to
greater indigenous success with land regularization.[31]
In
many cases these struggles have proven successful, as constitutional revisions
and new laws in many Latin American countries now recognize indigenous rights
to lands and natural resources.[32]
In many cases, however, on-the-ground application and enforcement of these new
legal protections is still lacking. In the worst situations, indigenous
communities face lawless plundering of their lands, as well as dangerous
guerrilla and narco-trafficking activity. For example, Maroon peoples in
Suriname --the only country in the Western hemisphere without any form of legal
recognition of ancestral land rights-- continue to face overwhelming pressures
from logging concessions granted to foreign majors and from the invasion of
small-scale Brazilian gold miners (ìgarimpeirosî) working in Suriname.[33]
Rights
at the International and Regional Levels
A number of
recent international instruments have advanced the status of indigenous land
and resource rights. Some of these instruments, such as Convention 169 of the
International Labor Organization (ILO)[34]
and the Organization of American Statesí American Declaration on the Rights of
Indigenous Populations[35]
are directly enforceable against signatories or member countries. Others, such
as the United Nations Decade on Indigenous Peoples and operating policies of
the World Bank[36] and the
Inter-American Development Bank, enunciate legal norms along customary
international law lines. Together, these instruments illustrate and codify an
emerging and increasingly recognized package of indigenous land and resource
rights. In fact, the legal reforms instituted by many Latin American and
Caribbean countries in the past decade have largely mirrored the package of rights
outlined by international instruments such as ILO Convention 169.[37]
In basic summary, the emerging package of rights enunciated by recent
international instruments include: (a) the right of indigenous peoples to set
their own development priorities; (b) the right to traditional lands and to
have land claims expediently resolved; (c) the right to natural resources; (d)
the right to consultation in the case of sub-surface rights held by state.[38]
Rights
at the National Level
Recent
Modifications
A
number of Latin American countries have amended their Constitutions in the past
decade, adding provisions recognize indigenous communitiesí rights to
traditional lands.[39]
Many of these constitutional modifications have also granted other rights to
indigenous communities, including cultural recognition, bilingual and
intercultural education, the right to indigenous forms of organization and
administration, and the right to consultation and participation.[40]
Colombia, Panama, and Nicaragua have granted significant social and political
autonomy to some indigenous communities.[41]
In addition to new Constitutional provisions, several Latin American
governments have approved new laws specifically detailing indigenous rights,
such as Argentinaís National Law of Indigenous Policy and Support of Aborginal
Communities[42] or Chileís
Indigenous Law.[43]
This
new package of indigenous rights, especially the right to traditional lands, is
at various stages of recognition and enforcement in different countries and
even within single countries. Some of the recent pronouncements of indigenous
rights still lack implementing legislation, and many lack sufficient funding to
carry outÝ land regularization or other
programs, such as bilingual education.[44]
Weak government administration of indigenous affairs and lack of indigenous
participation often handicap realization of ambitious legal norms granted on
paper.[45]
Another complicating factor in achieving consistent recognition of the
indigenous rights enunciated in recent legal changes is the existence of
countervailing legislation such as mining, water, or agrarian codes or forestry
laws.[46]
Similarly, creation and administration of national parks or other protected
areas can affect the land and natural resource rights of indigenous communities
living within or near the area.[47]
Finally, drug traffickers and/or guerrilla organizations often determine the
realities of land tenure and access by means of violence, rendering promising
legal changes largely ineffectual. The security situation in the Amazon region
is particularly alarming. Many of the lowland indigenous communities found
there are threatened by fragile populations, massive cultural differences, and
limited previous contact with non-indigenous society.
Privatization
Widespread
privatization has swept Latin America in the past decade, in attempts by the
regionís governments to reduce the soaring debt and inflation that plagued the
region by the 1980s.[48]
Privatization, however, has complicated the status of indigenous land and
resource rights by effectuating large land transfers and re-arranging access to
and administration of natural resources. For example, Argentina sold off television stations, the national electric utility, the
national telephone company, the national airline, the national oil company and
various defense industries, as well as increasing road, rail, and mining
concessions, all since 1990.[49]
Foreign investment in Argentina has flourished as a result, but social
ramifications have impacted some of the countryís indigenous populations. Toba
communities in the northern Argentine state of Chaco have been struggling for
recognition of their traditional lands. This territory is now claimed by the
purchasers of a recently-privatized sugar refinery.[50]
Privatization in a variety of contexts continues today in
Latin America, as several countries have opened up massive state oil industries
to foreign investment.[51]
These developments impact native communities as well; each of the twenty seven
oil exploration concessions granted in Peru between 1995 and 1998 is home to
indigenous peoples.[52]
Similarly, Latin America is now the number one region in the world for metal
mining exploration, attracting one-third of all such activity.[53]
Like oil concessions in Peru, however, this mining boom has affected indigenous
communities in many parts of Latin America. For example, campesino communities
in Chile, Argentina, Bolivia, and Peru are struggling to maintain control over
traditional water supplies in their highland desert homelands, water that is
now demanded by large mining operations.[54]
The continuing effects of privatization and foreign investment upon Latin
American indigenous communities will demand careful monitoring.[55]
Countervailing
or Ambiguous National Legislation
In
some situations in Latin America, ambiguity or outright contradictions within
separate bodies of national law can seriously complicate indigenous
communitiesí abilities to realize land or resource rights. For example, a 1997
Peruvian law allows communities near that countryís Pacific coast to sell
communal lands if thirty percent of the community agrees.[56]
This provision runs dangerously contrary to indigenous concepts of land as
inalienable and collective property, principles recognized by ILO Convention
169, the Peruvian Constitution and Peruvian national legislation.[57]
The ILO and Peruvian indigenous organizations have denounced the dangers
presented by this law.[58]
Another
potential twist in the legal determination of indigenous land and resource
rights can result where Latin American governments are organized as federal
systems. The existence of varied provincial authority which may or may not be
in harmony with national norms can introduce federalism issues into the
equation, further complicating the analysis for indigenous communities. Federal
systems of government can also have the effect of subjecting indigenous land or
resource rights to the grip of provincial politics. In Argentina for example,
the northeast province of Misiones approved a progressive indigenous rights law
in 1987, the passage of which included significant indigenous participation.[59]
The law, however, was then revoked and replaced shortly thereafter by the
provinceís new political administration, as part of a radical shift in
provincial politics.[60]
The new administrationís law diminished the rights granted to indigenous
communities living in Misiones, by favoring the creation of ìindigenous
reservesî where communities receive ìuse rightsî instead of collective title.[61]
Following these legal changes, indigenous land tenure in Misiones became a
battle for existence, as communities were reportedly displaced by state
security forces, some during midnight raids.[62]
The federal-state disparity in Misiones leaves indigenous communities short of
the norms enunciated in Argentinaís national Constitutional reform in 1994,
which guarantees indigenous rights to collective title for traditional lands.
Growth of
Indigenous Organizations
ÝÝÝÝÝÝÝÝÝÝÝ The rapid growth
of indigenous organizations since the 1960s played a vital role in bringing
about improved legal recognition of indigenous rights by Latin American
governments during the 1990s. These organizations have made tangible
contributions to improving their legal status, including participating in
international policymaking projects, influencing national legislation through
the dissemination of draft bills, and building internal solidarity. A host of
indigenous organizations now exist, with mandates and missions ranging from
local to regional to international. The World Indigenous Council and the International
Indian Treaty Council maintain consultative status to the UN Economic and
Social Council. In 1984, the Coordinating Body of
Indigenous Organizations of the Amazon Basin (COICA) was formed to present a
unified position on indigenous and tropical forest issues throughout the
countries that share the Amazon Basin.[63]
In May 1990, COICA convened a summit of national and international
environmental organizations to promote the participation of indigenous peoples
in the defense of the Amazonian ecosystem.[64]
At a more local level, the Native Federation of the Madre de Dios River
(FENAMAD) recently convinced Mobil Oil to engage in increased dialogue and
provide financial compensation to the indigenous inhabitants near the companyís
operations.[65]
Analysis
of Key Issues
Impossibility
of Generalizing
The
tremendous differences between indigenous communities and their cultures, as
well as the variety of legal and political situations theyÝ currently face, requires analysis of land
regularization on a case-by-case basis.[66]
Even where legal situations are similar, weak administration, lack of
enforcement, or local political factors may completely change the equation.
Indigenous land tenure is at many stages of recognition and security in Latin
America today, with different communities enjoying distinct benefits and
confronting unique challenges.
In
different places in Latin America, indigenous lands might be titled
collectively to the community, might be in the titling process awaiting funding
or surveying, or might be administered through various other formats. One
potential twist to indigenous land regularization is where countries have
created ìprotected areas,î under which indigenous communities are granted
possession or use rights but do not receive title.[67]
These protected areas are generally designed with environmental or ecological
objectives in mind, yet rarely allow for meaningful participation of resident
indigenous communities about future management of the areaís natural resources.[68]
In some situations, protected areas have been denounced by indigenous
organizations as an insufficient government response to long-term land
regularization needs.[69]
Distinct and
Urgent Needs: Land Regularization for Lowland Communities
Indigenous
communities which live in lowland tropical forests of Latin America face
several distinct issues from highland campesino communities. Lowland
communities, such as those that inhabit the Amazon, Orinoco, and Rio de la
Plata drainages, often rely on hunting, fishing and forest collecting for
economic and cultural survival. These communities maintain the ecological
balance of their territories by distributing sparse populations over large
areas of land and utilizing the variety of available forest resources. This
lifestyle and cosmovision, however, often does not coincide with Western
concepts of property and resource ownership, making lowland land regularization
especially complex analytically.[70]
For example, research has documented the cultural significance of swidden
agricultural techniques among lowland indigenous groups, yet such practices are
often disfavored ecologically.[71]
Many
lowland indigenous communities now face immense external pressures from highway
building and rural settlement projects, mining, logging, drug trafficking, and guerrilla
activity. The population of the Amazon region increased more than 300 percent
between 1960 and 1990, with most of the newly-arrived settlers being
non-indigenous.[72] It has been
estimated that one million indigenous people now live throughout the multi-national
Amazon region, or roughly four percent of the total population.[73]
Often, the populations of these Amazonian indigenous communities are extremely
fragile. Brazil, for example, is today home to an estimated 330,000 indigenous
inhabitants, comprising more than 200 ethnic groups.[74]
Pre-conquest estimates for Brazil suggest an indigenous population of five
million;[75] and ninety
ethnic groups have disappeared during the 20th century alone.[76]
Today, the average Brazilian Amazonian indigenous settlement contains sixty
five people, and several communities are home to less than twenty members.[77]
Indigenous
land regularization in lowland regions is as varied as the cultural differences
between the different groups. An estimated 500,000 square kilometers of Amazonian
territory has been set aside for indigenous communities in a variety of forms,
from collectively titled lands to indigenous reserves to protected areas. This
statistic, however, must be analyzed within the context of on-the-ground
security realities, as illegal invasion of indigenous lands by miners and
loggers, drug trafficking, and guerrilla activity often determine land tenure
and use in practice more than legal norms on paper. On paper, Colombia has
protected the greatest proportion of indigenous lands in the Amazon -- thirty
million hectares-- meaning seventy eight percent of that countryís Amazonian
indigenous population has received legal land recognition.[78]
Non-indigenous groups continue to invade demarcated lands in Colombia, however,
as the government is unable to maintain control over many rural areas. The
overwhelming influences of the national army, rebel movements, and paramilitary
groups has greatly complicated the battles for land regularization waged by
Colombian indigenous communities. The Inter-American Commission on Human Rights
estimated that five hundred indigenous leaders have been assassinated in
Colombia in the last twenty five years.[79]
Weak
Government Agencies and Administrative Problems
Many of the Latin
American government agencies in charge of indigenous affairs are weak and
underfunded, which handicaps the regularization of indigenous lands and
recognition of indigenous rights.[80]
The indigenous affairs agencies of many Latin American countries leave legacies
of frequent transfers between government branches and continual re-definition
and re-composition by succeeding political administrations. These agencies
often lack indigenous participation and only rarely enjoy the support of
indigenous communities and organizations.[81]
For
example, the Brazilian government agency in charge of indigenous affairs, now
called the Fundacion Nacional del Indio (FUNAI), first began as the Servicio de
Proteccion a los Indios (SPI), created in 1911. Non-indigenous Brazilian
military leaders served as SPIís directors until FUNAI was created in 1967,
under the Interior Ministry. In 1990, FUNAI was transferred back to the Defense
Ministry and army officials have continued to compose a large part of the FUNAI
staff.[82]
Further, the Brazilian National Security Council now retains the final check of
approval over indigenous land demarcations, in accordance with a measure passed
by the national senate in 1994.[83]
In Argentina,
the National Indigenous Affairs Institute (INAI) has been in charge of
indigenous affairs since its creation in 1985.[84]
Prior to INAI, however, Argentina had delegated indigenous affairs to no less
than five separate government ministries since 1898, when the government first
created such an organism. Foreshadowing future confusion on the issue, Law
3.727 of 1898 simultaneously installed authority for indigenous affairs in both
the Interior Ministry and the Exterior Relations Ministry.[85]
Many
of the recent pronouncements of indigenous land and resource rights in Latin
America have included measures providing for indigenous participation in the
management of these government agencies. This concept remains largely
unrealized, however, as an indigenous representative from Ecuador told the
United Nations that even though that countryís 1998 Constitution guaranteed
indigenous participation, decisions were still made by a select few
non-indigenous individuals. In the final conclusions of a 1998 national forum
of indigenous communities in Argentina, indigenous representatives denounced
the failure of the government to comply with the legal mandate that creates
INAI, which calls for participation of indigenous communities. Representatives
complained: ìINAI is an institution ëforí indigenous peoples, not ëofí
indigenous peoples.î[86]
In
addition to weak government agencies, a variety of other administrative
problems can complicate indigenous land regularization in Latin America.
Complex and often countervailing government bureaucracies can raise roadblocks
in a variety of ways. For example, eighty demarcations of indigenous lands in
Colombia remain in limbo because the government agency for environment refuses
to issue required Certificates of Preservation of the
Environment.[87] A conflict
arises when the Colombian Institute for Agrarian Reform (INCORA), the
government body in charge of land reform and adjudicating collective parcels,
cannot complete its allocations without this certificate, effectively halting
land regularization.[88]
Indigenous land regularization efforts can also be
complicated by situations where the administrative mechanisms or processes used
to regularize lands conflict with traditional beliefs or forms of organization.
The juridical personality requirement or other programs which require
indigenous communities to submit to non-traditional forms of organization can
force communities into difficult choices between land regularization and
maintaining their traditional culture. Indigenous organizations in Bolivia, for
example, have been divided in their evaluations of that countryís 1994 Popular
Participation Law. The law recognized the juridical personality of indigenous
communities and provided for increased management responsibilities, provided
that communities organized as ìmunicipalities.î[89]
Critics point to the lawís imposition of non-indigenous forms of organization
as a precursor for land regularization.[90]
Modern
Surveying Techniques
Another
administrative phase that commonly complicates indigenous land regularization
is the physical surveying of lands to be titled. Governments in Latin America
often rely on traditional, manual surveying methods which are more expensive
and time consuming than modern satellite methods. In many cases, governments
have recognized indigenous communitiesí collective land rights on paper but
have failed to actually deliver title, owing to a lack of funding for expensive
manual surveying. The experiences of a multi-ethnic indigenous community in
northern Argentina illustrate the difficulties that can arise from the
surveying component of land regularization. Over the course of several years,
national and provincial authorities approved various measures and even signed
agreements with community representatives to deliver collective title.[91]
Physical surveying was never completed, however, and finally the community
enlisted the assistance of a Belgian aid agency and a French university to
survey the land using satellite methods, at a fraction of the cost.[92]
Government officials were not familiar with satellite surveying techniques,
however, and originally refused to accept the communityís proposal because it
had not employed traditional surveying. Satellite and Global Positioning System
(GPS) surveying is often a cheaper, quicker, and less ecologically intrusive
option than traditional surveying, and should be considered in Latin American
land regularization schemes whenever feasible.[93]
The
surveying phase of indigenous land regularization is also important because it
provides opportunities for community participation and streamlines an
administrative step that can consume significant time and resources. In
Ecuador, the Shuar Federation has formed native topographic mapping teams to
work in close concert the Ecuadorian Agrarian Reform
Agency (IERAC).[94] Shuar
community members have been able to demarcate lands of which would have
remained undemarcated if left to government crews.[95]
Similarly, alternative surveying projects have been implemented in Peru,[96]
Bolivia,[97] Honduras,
and Panama.[98] Future
research could help determine the legal surveying standards in different countries
and the specific availability of aerial
photography for certain regions.
Security
Realities
The
realities of land regularization for many indigenous communities in Latin
America are practically determined by the often tense and unstable security situations
near or upon their traditional lands. Indigenous communities in the Brazilian
Amazon, for example, theoretically possess the rights to their lands pursuant
to that countryís 1988 Constitution. Realization of those rights, however, has
remained a distant goal as murders and invasions by illegal settlers, miners,
and timber harvesters have gone unaddressed by authorities.[99]
Similarly, a joint Global Environment Facility United Nations Development
Programme project aimed at biodiversity conservation in Peru was paralyzed due
to a lack of security in the communities.[100]
Security problems and guerrilla activity have also complicated land
regularization efforts in Colombia, Ecuador, and Guatemala.[101]
It
is an exciting time for indigenous land regularization in Latin America, as new
legislation and an evolving recognition of indigenous rights suggests a more
equitable future for the regionís original inhabitants. Increased political
mobilization by indigenous organizations and non-indigenous NGOs in the past
decade has caused many governments of the region to re-think their laws and
policies on indigenous land and resource rights. Much remains to be done,
though, and a number of key issues and considerations will guide continued
evolution in this area. The effects of widespread regional privatization and
the lack of security in some areas will undoubtedly impact indigenous efforts
to reclaim traditional land and resource rights. The need for greater
administrative efficiency, including procedural ill-fits and modern surveying
techniques, must be considered in future land regularization efforts. It is as
if the seeds of change have been planted for indigenous land regularization in
Latin America, and todayís policymakers must supply the proper tools to ensure
such rights come to fruition.
A
variety of major development activities exert pressure on the land and natural
resource rights of Latin American indigenous communities. Highway construction,
rural settlement programs, hardrock mining, logging, oil and gas drilling and
hydroelectric dams often complicate communitiesí land regularization efforts in
a myriad of ways, and have been the source of tense conflicts. Indigenous
rights to natural resources in Latin America are often legally complex and
unclear, owing to a panoply of countervailing national laws, such as mineral
and water codes, and agrarian land laws. Recent constitutional provisions and
specific laws that enunciate indigenous rights (some of which lack implementing
legislation) further complicate this legal framework.
The
onrush of privatization in Latin America since 1980 has further amplified the
effects of major development activities upon indigenous communities. Private
actors have gained access to new lands through state-granted concessions[102]
or through the transfer of parcels previously owned by the government, but
inhabited by indigenous families under tacit acceptance.[103]
During the past two decades, Latin American governments have sought to
privatize numerous state enterprises which had caused large public sector debt.[104]
State airlines, hydroelectric operations, mining, oil and gas companies, and
other state ventures were sold to reduce both debt and inflation.
In
many places, privatization has exacerbated already complex legal situations
regarding indigenous communitiesí land and resource rights. Tensions have
escalated, triggering physical occupations to protest government inaction, and
including armed standoffs, and violent confrontations.[105]
The frequent occurrence of intense confrontations before remedial action is
taken marks an alarming trend for much of the state-indigenous relations in
Latin America today. In northwest Argentina for example, indigenous communities
occupied and closed the MisiÛn La Paz--Pozo Hondo bridge leading to Paraguay
for twenty three days. The communities were protesting a sixteen-year delay in
regularizing their traditional lands.[106]
The delay continued despite repeated state and federal assurances to the
contrary and the fact that indigenous rights to traditional lands are protected
by Argentinaís Constitution.[107]
In Argentinaís southern state of Chubut, rural Mapuche families faced off with
the national army in 1995 to resist physical removal from their lands, after
army troops and a local judge had dislocated several neighboring families.[108]
In
Colombia, tensions continue to build between the government, leftist guerrilla
groups, Uíwa indigenous communities, and U.S. business interests over plans to
explore for oil on Uíwa traditional lands. Several thousand Uíwas have
threatened to commit collective suicide since 1995 if Los Angeles-based
Occidental Petroleumís carries through with its plans to drill for oil on
traditional lands in Colombiaís Andean cloudforest.[109]
The cloudforest region is sparsely populated and largely controlled by the
Revolutionary Armed Forces of Colombia (FARC) and National Liberation Army
(ELN) guerrilla movements, who oppose oil exploration in the region. An
Occidental Petroleum vice president told Congress that local employees must pay
a ìwar taxî to the guerrillas and estimated that the companyís 483-mile
pipeline has been sabotaged by guerrilla forces more than 700 times, seventy
nine times in 1999 alone.[110]
For land tenure of Latin Americaís indigenous communities to become more secure, governments in the region must improve implementation of the land and resource rights guaranteed to indigenous communities by national legislation and international treaty obligations. These states need to establish clearer and more streamlined administrative procedures to regularize indigenous lands, so as to reduce situations where tensions escalate into violence. For their part, foreign companies such as Occidental Petroleum must play a proactive role in recognizing indigenous legal rights. These actors can also play a valuable role in guaranteeing indigenous communitiesí participation in setting the development agenda for their natural resources.
Road
and highway building activities, and appurtenant rural settlement programs
designed to relieve urban population pressures, strongly impact regions of
Latin America where indigenous communities have not had substantial contact
with outside settlers. Areas of Mexico, Honduras, and Panama vividly illustrate
this trend, where highway building since the mid-20th century has
caused marked impacts on indigenous communities, including disruption of their
ecological habitat and their absorption into the market economy.[111]
Brazil
provides perhaps the most striking example of the powerful effects highway
construction can have, in the form of the TransAmazon Highway. Since the start
of construction in 1970, the TransAmazon and its spur highways have added more
than 14,000 kilometers of new roads in the Amazon. The Brazilian governmentís
settlement program which accompanied the TransAmazonís construction, called the
Program for National Integration, boosted the Amazonís population from 9.7
million in 1960 to 29.3 million in 1990.[112]
The resultant pressures on Amazonian indigenous communities proved both
widespread and powerful, as cattle ranching on deforested land[113]
and illegal mining and logging activities now threaten the future viability of
sustainable resource use.[114]
Furthermore, many indigenous communities in the Brazilian Amazon are
particularly ill-prepared to withstand large-scale invasions of their lands,
because of their fragile populations.[115]
A proposal by
the Panamanian government to construct a highway in the southern reaches of
that countryís Darien region promises similar impacts. Several indigenous and
environmental organizations have opposed the proposal.[116]
Highway building and settlement programs have the potential to breathe economic
life into isolated areas, but several key realities must be contemplated in the
design of such programs. First, rural settlement programs which focus future
economic activity upon clearing forest lands for cattle ranching should be
discouraged. Studies suggest that cattle ranching upon cleared forest lands is
unsuccessful economically and perpetrates serious ecological damage.[117]
Second, advance planning must ensure that highway building and settlement
occurs as part of a larger development plan for the chosen region, rather than
allowing settlement to proceed ad hoc with the economy centered only around the
highway.[118] Third, the
involvement and participation of indigenous communities is especially important
in highway building and rural settlement schemes, as such projects often impact
isolated, forest dwelling communities which have had less contact with
non-indigenous society.
Latin
America is now the number one region for investment in hardrock mining
exploration, home to one-third of all such investment in the world.[119]
Mineral exploration and exploitation activities throughout Latin America impact
local indigenous communities and their land and resource rights. Mining
operations can introduce new infrastructure such as highways or railroads,
cause environmental damage, and alter social and political balances. In Latin
America, subsurface rights belong to the government, regardless of the surface
owner, and are superior to surface rights. This means that even indigenous
communities that have completed land regularization of traditional lands
normally cannot veto mining concessions or activities.[120]
The
Carajas Iron Ore Project in the eastern Brazilian state of Para illustrates the
widespread impacts that mining projects can have on Latin American indigenous
communities. The project also demonstrates the difficult policy choices
concerning the distribution of costs and benefits that often accompanies mining
in Latin America. Construction of the Carajas facilities began in 1982, and by
1987 the mineí operator, Companhia Vale Rio Doce (CVRD), had reached full
production in its efforts to extract eighteen billion tons of iron ore from the
Brazilian jungle.[121]
Bringing the Carajas project into production required building an 890-kilometer
railroad, port facilities, roads, and even a new town.[122]
The direct source of 4200 jobs and almost $40 million in tax revenues, the
Carajas project has significantly changed lifeís realities for surrounding
indigenous communities. CVRD funded an Amerindian Protection Program,
administered by the National Indian Foundation (FUNAI, Brazilís national
government agency in charge of indigenous affairs). The program instituted land
regularization, health, educational and other programs for the areaís 14,500
indigenous inhabitants.[123]
Invasions of indigenous lands by small-scale miners, loggers, land speculators,
and ranchers, however, have increased sharply since construction of the Carajas
highway and spur roads.[124]
These intrusions, coupled with social ills such as inadequate housing,
prostitution, and public health problems, raise complex questions about overall
costs and benefits of the project. As is the case in many areas of Latin
America, indigenous communities near the Carajas project had to block the
railroad to demand fulfillment of company and government promises.[125]
Other
Latin American indigenous communities are also confronting the challenges
presented by mining operations on or near their traditional lands, with varying
degrees of success. Indigenous communities in the northern Chilean province of
Parinacota (located in the worldís most arid desert, the Atacama) secured
ancestral water rights to more than eighty percent of the provinceís available
surface flows in 1998.[126]
Chileës copper industryís demands large amounts of water for projects in the
countryís northern regions, exerting pressures which have been called the
ìgravest problemî facing the regionís indigenous Aymara communities.[127]
The
rapid development of hardrock mineral reserves in Latin America today demands
increased scrutiny regarding the distribution of costs and benefits from such
projects, and calls for improved working relationships between industry,
government, and indigenous stakeholders. Meaningful indigenous participation
and empowerment will be key in guaranteeing that mining contributes to
sustainable development in Latin America. As an important start in the
participatory process, the World Bank and the United Nations Commission on
Trade and Development have established models for improved indigenous
participation in mining projects.[128]
Latin
American governments have granted increased numbers of logging concessions
during the past fifty years, influenced largely by the regional trend of
privatization.[129]
Often times these concessions cover indigenous lands where the inhabitants lack
legal recognition of natural resource rights. In other cases, indigenous
communities are guaranteed some degree of control over natural resources on
their lands, but concessions are granted in outright contravention of those
rights. The situations where indigenous communitiesí rights to timber resources
have been violated exacerbates existing issues about many Latin American
countriesí non-sustainable timber management policies. Some researchers
estimate tropical deforestation in South America is occurring at 0.5 percent
per year, and in Central America at 1.6 percent per year.[130]
Bolivia
illustrates the effects that countervailing national legislation and the lack
of political will can have upon indigenous communitiesí attempts to regularize
their lands and protect natural resources such as timber. In 1996, Bolivia
passed the National Service of Agrarian Reform Law (INRA), designed to
regularize small parcels of land used by much of the countryís rural population
for subsistence living.[131]
The law provided that lands covered by the law could not be divided,
encumbered, or sold, and were exempt from property taxes.[132]
More specifically, INRA contained a provision to regularize twenty four
indigenous territories, totaling nearly fifteen million hectares.[133]
Despite the fact that this provision called for regularization to be completed
within sixty days, indigenous communities have still received only a fraction
of the lands.[134]
Furthermore, since 1997 the Bolivian authorities have granted twenty seven new
logging concessions (issued as forty-year contracts) which overlap with the
indigenous lands supposedly earmarked for regularization by INRA.[135]
These concessions affect roughly 700,000 hectares of indigenous lands and were
reportedly granted without any consultation of the indigenous communities.[136]
In Argentina,
illegal logging operations have plagued indigenous land regularization efforts
in the countryís northeastern state of Chaco, despite federal and provincial
laws which recognize indigenous land rights[137]
and ban logging in the area.[138]
A 1990 report from the Buenos Aires newspaper La Nacion estimated that illegal timber harvesters were removing
150 tons of carob wood from indigenous lands per day, in outright violation of
a provincial decree banning logging[139]
What makes this even more alarming is that the loggers were reportedly removing
only the trunks of the trees, leaving behind as much as seventy percent of each
tree.[140]
The
experiences of the Uíwa in Colombia, discussed in the introduction to this
section, illustrate some of the effects oil exploration and exploitation
activities can have upon Latin American indigenous communities. The Uíwa are
not alone, though, in their struggle to protect traditional lands from oil
drilling. Pressures on indigenous communities from oil development have both
increased in intensity and changed in form during recent years, as Latin
American governments privatized massive state oil companies. As of 1990, state
oil companies controlled seventy-seven percent of oil production in Latin
America.[141] But
privatization began in the early 1990s and is moving along swiftly, as Brazil,
Argentina, Peru, Ecuador, and Venezuela have all opened up oil development to
private capital.[142]
The trend of privatization and the resulting influx of new actors in rural
areas have caused direct ramifications for indigenous communities. In Peru, for
example, indigenous communities live on or near all twenty seven oil
concessions granted by that countryís government since 1994.[143]
Indigenous
communities in some parts of Latin America are now fighting back against the
damages caused by oil development activities. Indigenous plaintiffs from the
Ecuadorian Amazon, along with other Ecuadorian citizens, sued Texaco for $1
billion in 1996. They allege that the companyís operations between 1972 and
1989 caused widespread environmental damage, including dumping more than one
billion barrels of oil into the regionís ecosystem. The case was subsequently
joined with claims made by Peruvian plaintiffs about Texacoís environmental
destruction in that country. Suing under the Alien Tort Claims Act, the cases
were originally dismissed on grounds of forum non conveniens and international
comity.[144] That
judgment was then vacated by the U.S. Court of Appeals,[145]
however, which held dismissal was improper in the absence of a condition
requiring Texaco to submit to jurisdiction in Ecuador.[146]
The case remains pending, but if resolved for the plaintiffs could provide
powerful precedent for Latin American indigenous communities impacted by
multinational oil developers such as Texaco.
In
light of the Texaco experience, multinational oil companies who secure
concessions in areas inhabited by indigenous communities now need to be more
proactive in their relations with local and indigenous residents. A growing
body of international norms regarding pre-project participation and
consultation of indigenous peoples now exists, aimed at fostering cooperation
between stakeholders. For example, the Interethnic Association for the
Development of the Peruvian Jungle (AIDESEP), an indigenous organization
representing a large number of ethnic groups, has formulated model oil
exploration consultation guidelines.[147]
One AIDESEP proposal advocates a Tripartite Framework Agreement that would
detail the responsibilities and obligations of the government, the oil
companies, and indigenous communities in any oil development project.[148]
Major
development activities have inflicted great damage in some Latin American
indigenous communities, as past examples attest. In order to avoid this type of
damage in the future, all the different stakeholders involved have a role to
play. With the onset of regional privatization, more and more multinational
stakeholders will be entering areas inhabited by indigenous communities in the
future. Therefore, it will be increasingly key for these multinationals to help
advance the meaningful recognition of indigenous land and resource rights. By
being proactive, multinationals can form positive, working relationships with
the communities near their projects, and avoid reactionary lawsuits such as the
Texaco litigation. Multinational companies can also lead the way in improving
the participation of indigenous peoples in the planning of an areaís resource development,
building upon models such as the World Bankís.[149]
Latin
American governments also need to play an important role in improving the
recognition of indigenous land and natural resource rights, and in reducing the
impacts that major development activities often have on these communities. Most
Latin American governments now require environmental impact assessment for
mining, oil exploration, or other development projects. Including a social
component to this assessment whenever indigenous communities will be impacted
could help build early links in working relationships and help make government
awards of concessions more transparent. Governments also need to streamline the
administrative procedures required for indigenous communities to regularize their
lands, as such processes often handicap and frustrate indigenous efforts.
For
Latin Americaís indigenous communities, there is now light on the horizon. New
constitutional provisions and special legislation protect traditional land and
resource rights, on paper at least, more than at any time in recent memory.
Grassroots organizing, political activism and greater solidarity between
indigenous organizations have had tangible effects in improving the plights of
their communities. All stakeholders in major development projects ñ
multinational companies, national companies, government, and indigenous
communities ñ must play important roles in assuring that tomorrowís development
activities remain responsible to sustainability.
ìThe
human being is land that walks.î
--Indigenous poet from Humahuaca, Jujuy, northwestern Argentina.[150]
Introduction
For
Argentinaís indigenous peoples, traditional lands are paramount. Nothing is
more basic or fundamental. Argentinaís indigenous communities share connections
with their lands and natural surroundings not only economically and
geographically, but spiritually and culturally through cosmovisions dating back
many generations. But despite changes to the 1994 Constitution that expressly
recognize their land and resource rights, many indigenous communities in
Argentina continue to struggle with procedural, administrative, and political
barriers. Some communities have succeeded in regularizing traditional lands and
now enjoy more stable land tenure than any time in recent history. Others
continue to battle administrative and bureaucratic obstacles, stereotypical and
racist attitudes, and a frequent shortage of political clout.
Several
Toba communities that occupy 150,000 hectares of land between the Teuco and
Bermejito rivers in the northeastern Argentine province of Chaco illustrate how
complex and frustrating indigenous land regularization can be. Although
treaties signed in 1774, 1825, and 1868 guaranteed the Tobasí land rights,[151]
Chaco was militarily invaded between 1884-1916.[152]
Following the war, the Argentine government attempted to make reparations, and
President Marcelo T. DíAlvear issued a decree in 1924 protecting the 150,000
hectares for Toba residents of the ìTeuco Colony.î[153]
In 1990, the Chaco provincial legislature passed a measure expressly
recognizing this 1924 agreement, and initiating the surveying necessary to
complete regularization.[154]
A decade
later, the surveying remains unfinished. Delays, an unexplained disappearance
of government funds, political hurdles at the provincial level, and the high
cost of traditional surveying have prevented land regularization from being
completed.[155] After
$150,000 intended for surveying costs mysteriously disappeared in 1991,
community members protested by occupying and closing a nearby highway bridge.
After eight days government surveyors returned. They surveyed 20,000 of the
150,000 hectares and spent $100,000 in the process. Then provincial authorities
discontinued the surveying again because of its high costs. At this point the
Teuco-Bermejito communities sought help elsewhere, joining forces with OXFAM, a
Belgian aid organization, and a French university to develop a land
regularization claim utilizing less-expensive satellite surveying. The proposal
estimated surveying of all 150,000 hectares could be completed for $50,000, and
in 1995 the communities signed an agreement with provincial authorities to
re-initiate the work. Unexplainably, surveying remains uncompleted and the
communities still lack title to their lands.
Indigenous
Argentina
Argentina
today is home to approximately 500,000 indigenous inhabitants, divided amongst
fourteen to twenty four ethnic groups, depending on the source consulted.[156]
As such, indigenous peoples in Argentina account for between one and four
percent of the national population. Indigenous communities live throughout the
country, from Kollas in the Andean northwest to GuaranÌs and Tobas in the
lowland northeast to Onas in the southern Tierra del Fuego. Each ethnic group
maintains unique lifestyle, culture, and economic activities and some
communities are vastly distinct from others. For example, highland communities
in the northwest primarily cultivate agricultural products and tend livestock
whereas lowland communities in the northeast typically rely on hunting,
gathering, and fishing.[157]
In
addition to occupying traditional, rural lands in the outlying provinces, an
increasing number of indigenous peoples now live in and around Argentinaís large
cities of Buenos Aires, Rosario and Santa Fe. Research estimates that more
Tobas now inhabit slums (ìvillasî) around Rosario than live on the groupís
traditional lands in the Chaco, Formosa, and Salta provinces.[158]
Increased pressure from non-indigenous settlers, logging, and tourist
development have reduced the Tobasí hunting, fishing, and forest collecting
resources and contributed to this trend of urban migration.[159]
Several Argentine studies cite this urban migration as a cause for
anthropologic concern,[160]
and it raises complex new legal questions in terms of indigenous land tenure.[161]
Wherever
their location, Argentinaís indigenous communities are among the poorest and
most under-developed in the country. These communities are characterized by
inferior education, higher unemployment, higher mortality rates, lower life
expectancy and insufficient health care.[162]
The province with the highest percentage of indigenous inhabitants ñJujuy -- is
the poorest in the nation, with forty percent of households in that state
lacking basic necessities.[163]
Wichi indigenous communities in Chaco suffered a 1992 cholera outbreak due to
lack of proper sanitation infrastructure, the first such outbreak in
Argentinaís history.[164]
Similarly, a World Bank study found that fifty six percent of Mapuches surveyed
in Argentina had received no schooling, while among the non-indigenous
population the rate was just seven percent.[165]
Indigenous
communities have inhabited what is modern-day Argentina for an estimated 10,000
years.[166] Life
changed drastically for these inhabitants with the arrival of the Spanish
conquest. Similar to European-indigenous contact in other parts of Latin
America, the newly-arrived inhabitants carried out indigenous policies by sword
and gun, forcibly dispossessing indigenous groups of lands, rights, and
culture. Separate legal definitions were established to distinguish
non-indigenous from indigenous inhabitants. ìIndiosî were considered ìlegally
incapableî and often had to pay tribute to the Spanish crown in exchange for
the ìbenefitsî of colonial presence -- ìcivilizationî and the Catholic Church.[167]
European arrival struck indigenous groups in the modern-day Argentine regions
of Cuyo and Central Sierra[168]
particularly hard, and a number of groups were driven to extinction.[169]
After
Argentina achieved independence in 1810, the new nation launched military
campaigns to subdue its indigenous inhabitants and to secure its frontiers.[170]
The Indigenous Association of Argentina counts at least seventy such campaigns
led by famous leaders such as Bartolome Mitre and Julio Roca.[171]
Among the most notorious of these campaigns was the Roca-led CampaÒa del Desierto (Desert Campaign)
from 1879-1885, which struck the decisive blow for control of the Patagonia and
Pampas regions. Indigenous communities were militarily defeated and
dispossessed of their territories, which were then used by the Argentine
government as payment to the business investors who had financed the campaign.[172]
The campaignís military officers were also paid in land, according to their
rank.[173] Military
control of Argentinaís northern regions was concluded decades later; President
Roque S·enz PeÒa announced the complete occupation of Chaco and Formosa in
1912.[174]
From
a legal perspective, formal treatment of Argentinaís ìindigenous problematicî
began as early as 1853, as the Constitution concluded that year aimed to
ìconserve the peaceful treatment of the indians.î[175]
As if foreshadowing the mixed messages and inconsistent policies which would
follow, the same 1853 Constitution sought to ìpromote the conversion of them
[indians] to Catholicism.î[176]
Throughout the next 150 years, the Argentine government passed more than forty
laws aimed at management of indigenous issues.[177]
In addition, a wealth of provincial laws, regulations, decrees, and
Constitutional revisions regulated various aspects of indigenous affairs.
Beginning
in the late 19th century and stretching into the 20th century, Argentinaís
indigenous policy sought to settle, integrate, and assimilate the countryís
original inhabitants. Laws and decrees oblivious to indigenous culture,
economic practices, or cosmovision were promulgated and then inconsistently
applied.[178] In the
1940s and 1950s Argentinaís indigenous policy shifted again, as the populist
wave ushered in by President Juan Peron gave a political voice to working-class
and popular movements. The Peronist wave trickled down to Argentinaís
indigenous communities, as the concept of ìusufructî rights was first
introduced.[179] Usufruct
rights were the most progressive achievement of their day but were still
limited and conditioned, as indigenous grantees were prohibited from switching
agricultural crops, making improvements to their lands, or cutting trees
without permission.[180]
Indigenous
communities in Argentina emerged as a vocal element of civil society during the
Peron era, as Kolla communities from the northwestern state of Jujuy caravaned
nearly 2,000 kilometers to Buenos Aires to demand repatriation of their
territory. After the military conquests, lands in Salta and Jujuy had been left
in the hands of colonial families who often exploited indigenous labor on
immense sugar plantations. The Kollas MalÛn
de la Paz (indian peace uprising) in 1949 was answered by Presidential
expropriation and adjudication decrees in 1949 and 1952, respectively.[181]
These measures lapsed after two years, however, and the expropriations were
never carried out.[182]
In
the 1960s and 1970s, Argentina took steps toward a new phase of indigenous
policy by recognizing the need for both repatriation and indigenous
participation in policy development. Decree 2.462 of 1968 created the National
Indigenous Affairs Service, the first government indigenous affairs body in
Argentina to contemplate indigenous participation in its organizing principles.[183]
The first Indian Census (1965-67) counted 170,000 indigenous inhabitants living
in Argentina, though this census has since been criticized for faulty
methodology.[184] Grassroots
indigenous organizations also appeared on the Argentine political front in the
1960s and 1970s. The First Indigenous Parliament (Futa Traum) was convened in
Neuquen in 1972, aiding in the early development of several indigenous
organizations which are still active forces today.[185]
This
short window of progress in Argentine indigenous policy promptly closed during
the countryís military dictatorship from 1976 to 1983 -- euphemistically titled
the ìNational Process of Reorganization.î[186]
The nationís military government stifled all political, intellectual, and trade
union activities during what is now known as the ìDirty War.î Popular and
opposition movements were harassed and destroyed by state-run death squads who
kidnapped, tortured, and murdered perceived opponents Murders were conveniently
titled ìdisappearances.î[187]
At least 9,000 people were ìdisappearedî during this period,[188]
and only after the nationís return to democracy in 1983 could indigenous and
popular movements mobilize once again.[189]
In the two decades since the Dirty War,
indigenous policy in Argentina has begun to move forward again, as indigenous
organizations and NGOs have successfully lobbied for recognition of a variety
of indigenous rights. Several indigenous communities have succeeded in
regularizing their lands, bilingual and intercultural education programs have
been implemented,[190]
and a number of training and partnership-building seminars have taken place.[191]
A new law passed in 1985 and Constitutional changes from 1994 now guarantee
indigenous communities in Argentina the most progressive and complete package
of legal rights in the nationís history.
Progress,
however, has also been slow and inconsistent, marked by frustrations and
setbacks. Many government promises, some in the form of written agreements
signed with indigenous communities, remain unfulfilled. In some situations,
land rights guaranteed to indigenous communities by law are not recognized, and
in others are outright violated.[192]
The 1990s has witnessed an remarkable number of instances in which indigenous
communities have staged protests or physically occupied public spaces to demand
recognition of their land rights.
For
example, indigenous communities in both Salta and Chaco occupied and closed
important highway bridges, Mapuche community members in Neuquen occupied the
headquarters of the state-run corporation that manages their lands, and Mapuche
community members in Chubut faced off with the national army in 1995.[193]
These manifestations, and the governmentís failures to properly recognize
indigenous rights that prompted them, have only increased the political tension
that surrounds the management of indigenous affairs. Current government policy
and involvement in the field is unpredictable and inconsistent, yielding a
piecemeal problematic in which community members and the government often
address indigenous rights on a case by case basis, and in a confrontational
atmosphere.
The
Law of Indigenous Land Regularization
The
modern era of indigenous land rights in Argentina began after the nationís
return to democracy, with the passage of Ley 23.302 in 1985. Titled ìIndigenous
Policy and Support of Aboriginal Communities,î the law was a project ten years
in the making for Fernando de la Rua, then a member of the national Senate and
now President of Argentina.[194]
Ley 23.302 created the National Institute of Indigenous Affairs (INAI), the
newest in a legacy of government agencies charged with management of indigenous
affairs. Ley 23.302 also recognizes indigenous communitiesí rights to land,
education, health, and guarantees their ìjuridical personality.î Implementing
regulations for Ley 23.302 were passed in 1989.[195]
Argentina
then approved a new Constitution in 1994, which strengthened the rights of the
countryís indigenous communities by elevating them to the level of a
constitutional provision.[196]
Article 75 recognizes the ìethnic and cultural preexistence of Argentine
indigenous peoples,î and vows respect for indigenous communitiesí unique
identities, guarantees bilingual education, and recognizes both the personeria
juridica and traditional land rights of indigenous communities. It provides
that indigenous lands are to be owned collectively, are inalienable, and are
not susceptible to liens. Finally, Article 75 assures indigenous communitiesí
participation in the management of their natural resources and in other matters
that affect them.
Implementing
legislation for Article 75 has not yet been passed, but in 1996 the Social
Development Secretariat issued Resolution 4.811 to regulate indigenous land
regularization at the national level. In essence, Resolution 4.811 revised the
ìinscriptionî process for indigenous communities to register their juridical
personality with INAI.[197]
Once inscribed, comminutes may apply to INAI for communal title to lands
traditionally occupied. Under this process, the national government pays for
surveying of the lands in question, as well as expropriation where required.[198]
Indigenous communities that obtain title to their lands through this mechanism
are then exempt from property taxes.
Because
Argentina is organized as a federal system of government, provincial laws,
constitutional provisions, or agreements can also play a role in determining
indigenous land and resource rights. In some cases, specific provincial laws or
decrees regulate the rights or land tenure of a specific indigenous community.
Eight of Argentinaís twenty three provinces have passed laws addressing
indigenous rights and land regularization, and nine have a Constitutional
article speaking to the issue.[199]
These sources, though, vary widely in their scope and tone.
Indigenous
Land Regularization Realities and Key Considerations
Although
indigenous rights to traditional lands are now clearly recognized by Article 75
of the 1994 Constitution, real progress toward regularization of indigenous
lands is just now beginning. In 1997 the federal government completed
regularization of 125,000 hectares of indigenous land in the province of Salta,
delivering title to approximately 3,000 Kolla families in an area known as
Finca Santiago.[200]
It was one of the first instances where the government displayed the political
will to actually expropriate private land ñ in this case from the Spanish-owned
company Montenegro for US$ five million[201]
ñ in order to complete indigenous land regularization as contemplated by the
1994 Constitution. In other places across Argentina, however, indigenous land
regularization continues at a slow pace, handicapped by a number of key
considerations.
Diversity of
indigenous communities, their situations, and applicable legal authority
Indigenous
land and resource rights, as well as efforts at land regularization, can
potentially be determined by a variety of different legal authorities. Some
indigenous communities in Argentina today enjoy rights to their traditional
lands and resources because of historic agreements signed with presidents or
military leaders.[202]
Other communities have seen similar agreements ignored or vacated,[203]
but have succeeded to land title under provincial land regularization programs
or federal channels such as the 1994 Constitution and Resolution 4.811. Still others
have watched their demands continually fall upon deaf ears, owing to specific
political obstacles.[204]
This scattered and unpredictable legal diagnostic does not lend itself easily
to generalization, making analysis or ìanswersî to indigenous land regularization
in Argentina dependent on the specific needs, priorities, and problems of each
community.
The
wide variety of geographic, economic, and cultural differences amongst
Argentinaís indigenous communities also makes generalized solutions or analysis
difficult. For example, lowland groups in the northeast generally rely on
hunting, fishing, and forest collecting, and maintain balance with their
natural environment by distributing their populations over large areas. In
contrast, indigenous communities in the northwest focus on livestock raising
and agriculture, and in some cases are more adaptable to Western concepts of
fixed, titled land ownership. This cultural diversity amongst Argentinaís
indigenous communities combines with the diverse legal situations in which they
live to make almost every communityís land regularization needs distinct.
Procedural
obstacles
The
diversity of federal and provincial laws that can potentially determine land
and resource rights in Argentina is often exacerbated by administrative and
procedural barriers within the process. Strained relations with federal and
provincial agencies, as well as social and political hurdles, exemplify such
difficulties. In the words of one author, Argentinaís indigenous communities
today are separated from successful regularization of their lands by a
ìparalyzing state bureaucracy in the hands of a negligent governing class.î[205]
According
to a report by the UN Working Group on Indigenous Populations, procedural
barriers faced by indigenous communities worldwide commonly stem from a weak
national agency in charge of indigenous affairs.[206]
In Argentina, the national government agency responsible for indigenous issues
is called the National Institute of Indigenous Affairs (INAI), created in 1985.[207]
Government responsibility for indigenous affairs, however, has been delegated
to a number of different entities through history.[208]
Today, INAI suffers from underfunding[209]
and political themes divide the agency. Many indigenous communities and
organizations in Argentina do not support INAI; one indigenous student
organization in Buenos Aires refuses to accept INAI scholarships on account of
the political leveraging that inevitably follows.
Indigenous
communities in Argentina face one specific and complex procedural barrier in
the basic administration of land regularization. In order to claim collective
title to traditional lands under the 1994 Constitution and Resolution 4.811,
indigenous communities must register their juridical personality with INAI. A
juridical personality essentially registers the community as a
legally-recognized entity, similar to a social or civic organization.
ìInscriptionî in the INAI national register requires that communities submit
financial and other documentation on an annual basis. Some communities and
organizations oppose the use of juridical personality ñ a non-indigenous form
of organization -- as a condition for recognition of traditional land rights.[210]
Critics argue that the requirement compromises indigenous sovereignty. Furthermore,
indigenous communities were afforded little input in the development of
Resolution 4.811, arguably violating the
right to participation guaranteed by Article 75 of the 1994
Constitution.
Argentinaís
indigenous communities also confront other procedural barriers at various
stages of the land regularization process. The experience of the Teuco-Bermejo
Toba communities, described in this chapterís introduction, attempting to
compel the government to complete surveying provides one example. Another example
is the experience of a multi-ethnic indigenous community in the province of
Salta, whose members have been seeking regularization of traditional lands for
decades.[211] More than
thirty indigenous communities, composed of five ethnic groups, occupy and claim
traditional land rights to 640,000 hectares located along the Rio Pilcomayo,
which forms the border between Argentina and Paraguay. The communitiesí lands
are known as ìlots 55 and 14î-- owing to the provincial numbering system of
Salta. Non-indigenous cattle ranchers have also populated the region since the
early 20th century, and currently lay claim to 550,000 hectares.[212]
Overpopulation, substandard living conditions, and environmental damage from
overgrazing[213] plague the
region, and all attempts at land regularization to date have failed.
After the
provincial legislature passed a law in 1987 which contemplated land
regularization by parceling out land titles according to the principal economic
activity in each zone,[214]
the indigenous communities of lots 55
and 14 realized it was time to act. Cognizant of the potential effects of a law
which sought to regularize lands into individual parcels, they enlisted the
assistance of a Dutch aid agency and assembled all the documentation required
by the 1987 provincial law to claim collective title.[215]
The proposal was accepted and ratified by provincial authorities, yet land
titles were never delivered. In 1996, the situation worsened again as the
government constructed an international bridge over the Rio Pilcomayo without
consultation and against the wishes of the Lhaka-Honaht communities.[216]
In August and September of 1996, Lhaka-Honaht members occupied and closed the
bridge to demand recognition of their traditional land rights guaranteed by the
1994 National Constitution.[217]
After twenty three days, federal government minister Miguel Angel Torino
visited the bridge and diffused the situation by signing an agreement with
indigenous leaders that provided for adjudication of the land rights of lots 55
and 14 within thirty days. This agreement was never carried out, however, and
Lhaka-Honaht community members remain without title to their traditional lands.
Frequent
civil protests by Argentinaís indigenous communities, in response to
unfulfilled government promises and the web of countervailing laws and
policies, have exacerbated the tense and confrontational atmosphere that now
surrounds indigenous land regularization. In recent years, very little has been
done by the government to regularize indigenous lands unless indigenous
communities called attention to their situation by way of protest or civil
disobedience. For example, indigenous communities in both Salta and Chaco
occupied and closed major highway bridges to protest unexplained delays in the
regularization of their traditional lands.[218]
Mapuche community members in the province of Neuquen occupied the headquarters
of the Pulmari Interstate Corporation, the quasi-governmental entity which
administers their traditional lands, for ten days.[219]
Kolla community members marched 2,000 kilometers from their traditional lands
in the countryís northwest to Buenos Aires to demand repatriation of their
traditional lands several times, most recently in 1992.[220]
The future of indigenous land regularization in Argentina stands poised to enter a new era, as the countryís original inhabitants now enjoy (on paper at least) the rights to traditional lands. Yet effective implementation and meaningful enforcement remains but a distant goal in much of the country. The future of indigenous land regularization in Argentina will hinge upon a number of key considerations, many of which mirror the regional trends discussed in Chapter One.
INAI, the state agency for indigenous affairs, suffers from political fragmentation and lacks the confidence of most indigenous communities. Improvement and modernization, as well as vastly increased indigenous participation in this agency will be a fundamental building block for the future. The continuing and disappointing saga of state indigenous affairs agencies stands out through Argentinaís history ñ despite first calling for indigenous participation in the relevant state agency in 1968, INAI in 2000 remains a painfully weak link in the indigenous land regularization chain.
Argentinaís rapid privatization, and its effects on land tenure of the countryís indigenous communities, will also merit close monitoring. The influx of multinational actors into rural areas will produce many new relationships, which if nurtured properly could become models for success in development-indigenous relations. The inclusion of a social/cultural component in the environmental assessment process could be a valuable first step in fostering more positive working relationships where development activities do occur.
Lastly,
the new administration of President Fernando de la Rua might hold promise for
the advancement of indigenous land regularization in Argentina ñ for it was De
la Rua who first sponsored the bill that became Law 23.302 of 1985.
Chapter Four: Indigenous Land Regularization
in Brazil
Residents
of the Raposa Serra do Sol indigenous area in northern Brazil celebrated when
the National Indian Foundation (FUNAI), the federal government agency in charge
of indigenous affairs in Brazil, completed the first step of regularizing, or
demarcating, their traditional lands in 1993.[221]
FUNAI had designated more than 1.6 million hectares of land in the state of
Roraima for the benefit of 12,000 indigenous inhabitants, comprised of
ninety-seven Macuxi, Wapixana, IngarikÛ and Taurepang
villages.[222]
Following two more administrative steps, these indigenous communities would
finally enjoy permanent possession of their traditional lands and usufruct
rights to their natural resources.
The
sense of celebration quickly waned though, as small-scale gold miners (known as
garimpeiros), loggers, non-indigenous
ranchers, and even state government authorities responded with a reign of
terror including violent eviction of Indians from their lands, murder, rape,
and torture.[223] The invaders
objected to FUNAIís regularization of the indigenous area and the effects it
would have upon their activities and interests in the area. A Brazilian NGO
reports that about 800 wildcat miners and ranchers still live within the Raposa
Serra do Sol indigenous area, though their numbers used to be much higher.[224]
Another report estimated 2,500 garimpeiros entered the reserve illegally just
during 1994.[225]
Then in
December 1998, the federal government completed the third and final
administrative step in the process to regularize Raposa Serra do Sol, and
things heated up again. Two young indigenous men were found strangled in
February 1999 and several confrontations were reported between indigenous and
non-indigenous inhabitants of the region.[226]
Some federal government representatives and local authorities have opposed
regularization of Raposa Serra do Sol since the first stage of the process in
1993, and in 1999 proposed a reduction of the reserve
in exchange for postponing a parliamentary inquiry into alleged misdoings
within FUNAI.[227] Indigenous
inhabitants of Raposa Serra do Sol continue to struggle with the Brazilian land
regularization process, with little indication that meaningful recognition of
their rights will become a reality anytime soon.
Indigenous
communities in Brazil lay claim to roughly eleven percent of the countryís
territory,[228]
ninety-five percent of which is located in the Amazon River region. After a
history of countervailing laws, policies, and programs under both Portuguese
and Brazilian authorities, indigenous land tenure in Brazil today is recognized
as one of three types:
(1) Tierra dominial indÌgena. In these
instances, indigenous land rights are recognized in the form of
individually-titled parcels which can be bought, sold, or mortgaged just like
any other parcel of individual property in Brazil. This type of land ownership
accounts for three percent of indigenous land in Brazil.[229]
(2) Reserves. In these instances, the
Brazilian government normally expropriates land from individuals which is then
decreed as indigenous reserves. Reserves account for fifteen percent of
indigenous land in Brazil.[230]
In 1998, Brazilian President Fernando Henrique Cardoso
issued a decree creating the ten-million-hectare Cabeza de Perro indigenous
reserve in the northern state of Amazonas, the second largest indigenous
reserve in the world.[231]
Cabeza de Perro is home to approximately 30,000 indigenous inhabitants,
distributed amongst the reserveís 600 communities, which are composed of twenty
three ethnic groups and speak ten different languages.[232]
(3) Indigenous areas. The Brazilian
Constitution of 1988 recognized indigenous land rights, and subsequent decrees
created an administrative procedure to regularize those rights through a
three-step process.[233]
Indigenous areas account for slightly more than eighty percent of all
indigenous land in Brazil and are the primary method for contemporary land
regularization. Within these indigenous areas, however, inhabitants are granted
only the right to possession, as well as usufruct rights to natural resources.
Actual land title remains under government control.
Regardless
of which type of land rights Brazilís indigenous communities enjoy on paper,
many communities face ongoing and difficult problems on the ground and in the
administrative process of regularizing traditional lands. Legal challenges to
the regularization process established by the 1988 Constitution first began in
1993, prompting the government to modify the regularization procedure. To do
this, the government issued decree 1775 in 1996 to answer the challenges.
Decree 1775 provides an opportunity for non-indigenous interests to challenge
regularization of indigenous areas. While the number of challenges approved has
been small, indigenous activists and non-indigenous NGOs continue to express
concern that the new decree will open the door to more corruption concerning
the uses of traditional indigenous lands.[234]
Continued
invasion of traditional lands (often land regularized as indigenous areas) by
miners, loggers, ranchers and settlers seriously threatens the land tenure
security of Brazilís indigenous communities. The experiences at Raposa Serra do
Sol are highly illustrative, and reports abound of tension and violence between
indigenous and non-indigenous communities throughout Brazil.[235]
The security context in which many of Brazilís indigenous communities live will
almost certainly define future land and resource rights more than any paper
decrees issued by the government.
This chapter
offers a brief introduction to Brazilís indigenous communities, and analysis of
some of the issues surrounding their land and natural resource rights. After
discussing legal and policy changes concerning indigenous land regularization,
the chapter will examine several key considerations in the future of indigenous
land regularization in Brazil.
Brazil
today is home to an estimated 330,000 indigenous citizens, made up of more than
200 different ethnic groups.[236]
This number has been drastically reduced since an estimated five million
indigenous inhabitants lived in Brazil prior to the arrival of Spanish and
Portuguese colonists.[237]
Roughly half of Brazilís current indigenous population lives in the expansive
Amazon region, while the other half live in the countryís southern reaches,
including large slums around major cities such as Rio de Janeiro and Sao Paulo.[238]
The land rights of Brazilís indigenous populations, however, does not mirror
the distribution of these populations, as ninety five percent of all indigenous
land is in the Amazon region. Indigenous inhabitants of urban areas normally do
not have any recognized land rights, and cannot argue for such recognition
under the 1988 Constitution because their current urban homes are not
traditional lands.
In
terms of economic opportunity, education, health, and political sway, Brazilís
indigenous population lags behind the countryís non-indigenous population.[239]
For example, the Inter-American Commission on Human Rights reports that life
expectancy of Brazilís indigenous inhabitants is 45.6 years, and only 38 years
for indigenous inhabitants in the state of Mato Grosso.[240]
These compare with an average life expectancy of 64 years for the Brazilian
population as a whole.[241]
Perhaps more alarming is the fact that the life expectancy of indigenous
Brazilians has dropped, from 48.3 to 45.6, just since 1993.[242]
The cultural,
linguistic, and economic diversity amongst Brazilís indigenous population is
remarkable; vastly different communities live in almost every one of Brazilís
twenty six states. These communities are often geographically isolated by the
countryís huge size[243]
and limited rural infrastructure. This tremendous diversity of Brazilís
indigenous communities and the countryís vast geographic area[244]
handicapped efforts at indigenous organization even into the 1980s.[245]
The Indigenist Missionary Council (CIMI), created in
1972 with strong influence from the Catholic Church, organized some of the
first interethnic assemblies amongst different indigenous communities.[246]
In 1980 indigenous activists formed the Unity of Indian Nations (UNI), aimed at
influencing indigenous policy at the regional and national levels.[247]
During its existence, UNI has changed leadership and format several times, and
made and broke alliances with the Church and non-Indian NGOs.[248]
Both UNI and CIMI, however, played important roles in the Constitutional
revision of 1987-88, helping secure valuable indigenous rights including the
land regularization framework now in place. Today more than 100 indigenous
organizations exist in Brazil, ranging in scope from local communities to
national and international.[249]
The
Law of Indigenous Land Regularization
The concept of
indigenous land rights was first recognized in the
Brazilian Constitutional text of 1934, which provided: "the possession of
lands at present occupied by Indians will be respected, whenever they be
settled in them on a permanent basis. [T]hey may not, however, alienate
them."[250] Under
Brazilian law, this recognition guaranteed possession, but not ownership, of
indigenous lands, and any unoccupied lands reverted to the states. The 1967
Constitution made indigenous rights to the possession of their lands permanent
and granted indigenous communities usufruct rights to natural resources for the
first time.[251] A
constitutional amendment of 1969 prohibited alienation of indigenous lands by
the Union itself.[252]
The legal
framework governing indigenous land regularization in Brazil, as well as the
framework governing many other indigenous rights, changed significantly with
the countryís passage of a new Constitution in 1988. The new charter made
sweeping changes by recognizing indigenous land rights as ìoriginal,î and
ordering that administrative demarcations of all such lands be completed by
1993.[253]
Demarcations were set in motion by decrees 22/91 and 608, issued by the Collor
administration, and which provided for demarcation in three main steps.
First, a work
group appointed by the President of FUNAI ìidentifiesî and prepares a study of
the specific lands involved. Second, indigenous lands are ìdelimited,î
essentially an administrative recognition of the identification from step one.
Third, ìdemarcationsî are then executed by Presidential decree, which grants
indigenous communities rights to possession and usufruct rights to natural
resources.[254] Title to
the lands, however, remains with the state.[255]
Between
1990 and 1995 the amount of regularized indigenous land in Brazil quadrupled,
influenced significantly by the regularization of more than nine million
hectares for Yanomami communities in the northern states of Roraima and
Amazonas.[256] The
Yanomamiís intense struggle for land, natural resources, and cultural survival
attracted international media attention in the late 1980s and early 1990s.[257]
Composed of approximately 10,000 members and distributed amongst 150
communities in the Orinoco River watershed, the Brazilian Yanomami lost as much
as seventy percent of their lands between 1987 and 1990 to garimpeiros.[258]
Tension and violence continued to escalate, and in 1993 garimpeiros murdered
sixteen Yanomami community members.[259]
The final completion of the Yanomami land regularizations in 1992 were cause
for celebration for many, but some critics suggested Brazil had only finished
the regularizations to reduce the international pressure it was facing on the
Yanomami issue as it prepared to host the 1992 Rio Earth Summit.[260]
Legal
challenges to the demarcation process established by the 1988 Constitution
began in 1993, under the premise that Decree 22 violated due process of law,
also guaranteed explicitly in the 1988 Constitution. In an attempt to remedy
this legal uncertainty without invalidating the twenty six million hectares of
indigenous land already regularized, the Brazilian government issued decree 1775
in 1996. This decree established a summary procedure by which claimants could
challenge indigenous land demarcations in front of the Federal Public
Administration, later to be ruled upon by the Minister of Justice.[261]
Under Decree 1775, claimants may contest regularization of indigenous lands by
showing: (1) a given part of the area, which they
claim to own, is not part of the land traditionally occupied by Indians; or (2)
that the indemnity for improvements is incorrect.[262]
More than 1,000 challenges were filed after Decree 1775 was issued,
affecting 45 indigenous areas regularized using the 1988 procedure.[263]
Though the vast majority of challenges were eventually thrown out, 540,000
acres of Macuxi land in Roraima was turned over to miners and ranchers.[264]
For many
indigenous organizations and some non-indigenous NGOs, Decree 1775 represented
a significant setback in the fight for indigenous land regularization and
greater indigenous land rights in Brazil. These critics argued that allowing
private challenges to the administrative regularizations will create dangerous
opportunities for ranching, logging, mining and other development interests to
squeeze out indigenous inhabitants. They also argued that the challenges would
be prime opportunities for corruption.[265]
Indigenous leaders occupied the Ministry of Justice in June 1995 to protest the
announced promulgation of Decree 1775,[266]
and the Unity Council of Brazilian Indigenous Peoples and Organizations
(CAPOIB) asked the World Bank to suspend funds for all projects for
regularization of Indian lands in Brazil.[267]
CAPOIB told the World Bank that the Cardoso administrationís policies simply
could not serve the needs of Brazilís indigenous communities.
Indigenous
land regularization in Brazil has undoubtedly shown tangible signs of
improvement in recent years, as the government has regularized millions of
hectares worth of indigenous areas under the procedure from the 1988
Constitution, and has created expansive indigenous reserves such as Cabeza de
Perro. A number of key concerns remain, however. Legal and political
ambiguities, including Decree 1775, raise doubts about the direction of
indigenous land regularization in Brazil. For example, regularization of
several indigenous areas has been complicated by a legal provision that permits
the creation of townships or municipalities within these areas, thereby
reducing the totality of indigenous rights in the area and producing a source
of conflict.[268]
Difficult
relations between the Brazilian state agency in charge of indigenous affairs,
FUNAI, and indigenous communities and organizations has historically
complicated the management of indigenous issues. This troubled relationship
continues to complicate indigenous land regularization today as the agency
forms the main part of the administrative regularization process. Political
obstacles within the government often handicap such efforts; one researcher
described the bureaucratic web that separates Brazilís indigenous communities
from their lands being regularized as ìstifling.î[269]
Brazil first installed authority over indigenous affairs in a government agency
with the creation of the Indian Protection Service in 1911.[270]
In 1967, responsibility for indigenous affairs was shifted to FUNAI.
Transferred from the Ministry of Interior to the Ministry of Defense in 1990,
FUNAI has historically been criticized by indigenous organizations for its
close ties to the military.[271]
Research published in 1994 indicated FUNAI was employing no less than thirty
six former army colonels on its staff.[272]
Today FUNAI remains embroiled in controversy, as conservative congressmen have
threatened to open a parliamentary inquiry into alleged misdoings within the
agency if the size of the Raposa Serra do Sol indigenous area is not reduced.
On the whole,
many of Brazilís indigenous communities still lack full and meaningful
recognition of their land and natural resources rights. A 1995 study by several
Brazilian NGOs revealed that almost all ìindigenous areasî were suffering from
illegal invasions, environmental pollution, impacts from garimpeiro mining
activity, and inadequate size.[273]
The alarming lack of security faced by many of the countryís indigenous
communities often defines land and natural resource rights in a much more real
way than government policies or decrees.[274]
In
the western state of Acre, for example, a series of arrests and investigations
began in late 1999 in connection with a drug and weapons trafficking ring led
by national representatives Augusto FarÌas and Hildebrando Pascoal.[275]
The ring allegedly smuggled various contraband to and from Bolivia, using death
squads to enforce local justice and to protect the groupís operations. Reports
implicated a variety of local and state authorities, as well as FarÌas and
Pascoal.[276] Suspected
in the murders of more than sixty people, the ring reportedly decapitated
perceived opponents by chainsaw and then displayed the severed heads in local
villages to evidence their control of the region.[277]
Indigenous inhabitants of Acre were sometimes forced to work as guides for the
smugglers, facing predictable repercussions if they refused to cooperate.[278]
Regularization
of indigenous lands in Brazil has undoubtedly progressed in recent years, but key
concerns remain which must guide future efforts in this area. First, the
tremendous cultural diversity amongst the nationís different indigenous
communities must be contemplated and given due weight. Indigenous inhabitants
of Brazilís Amazon region who have had limited contact with non-indigenous
society have vastly different needs, expectations, and abilities to react to
non-indigenous society than communities living in or around the countryís major
cities. These isolated lowland communities are often the most threatened by
development as a consequence of their fragile populations; ninety ethnic groups
have disappeared from the Brazilian Amazon during the 20th century alone.
Today, the average Brazilian Amazonian indigenous settlement contains sixty five
people, and several communities are home to less than twenty members.[279]
Next,
Brazilís legal framework for recognition of indigenous land regularization is
still incomplete. The country is one of few still creating reserves, an
imperialistic policy discarded by many other nations for its paternalistic
model. Indigenous peoplesí sovereignty and self determination are arguably
compromised by reserves, under which the state retains actual land title and
maintains control over natural resources. Similarly, ìindigenous areasî created
under the 1988 Constitution are incomplete in that they do not grant indigenous
inhabitants title to their traditional lands. Instead, indigenous grantees
receive the right to possession and usufruct rights to the natural resources thereon.
These contemporary realities flow from a history of policies in Brazil which
deemed indigenous inhabitants ìrelatively incapable,î and treated such persons
as wards of the state. The next step for indigenous land policy in Brazil must
be full recognition of indigenous sovereignty and rights ñ the 1988
Constitutionís recognition of ìoriginalî rights was a first step in this
direction.
Lastly,
the frightening security situations in which many of Brazilís indigenous
communities now live and the political obstacles they often face will continue
to play important roles in indigenous land regularization. Delicate efforts at
consensus building and wise choices in the selection of political battles will
be vital to the future of indigenous land regularization in Brazil.
Conclusion
and Final Recommendations
The
current legal frameworks in Latin America now recognize indigenous land and
natural resource rights more comprehensively than at any time since the
colonial era began five hundred years ago. Yet administration and
implementation of indigenous land regularization is still lacking in many
places, owing to the vast array of legal situations encountered, the tremendous
diversity amongst Latin Americaís indigenous communities, and distinct
political and racial obstacles. The dawn of the 21st century will be
an important time to build upon the recent progress in indigenous land
regularization, to guarantee that Latin Americaís original communities enjoy
the rights to their traditional lands and natural resources in the future.
Government policies need to be streamlined, made more consistent, and uniformly
enforced. Continued uncertainty over the administration of land and resource
rights contributes to a tense and destructive atmosphere where stakeholders are
motivated to rape and pillage for fear of losing their access in the future. A
number of key considerations should guide future indigenous land regularization
in Latin America, so as to ensure more meaningful recognition of indigenous
rights and to reduce tensions between stakeholders.
One important
consideration is that land titling programs serve as a component of a larger
scheme. Simple distribution of land titles does not automatically translate
into sustainability or economic growth if not accompanied by longer-term
natural resource management planning. Furthermore, both land titling programs
and natural resource management planning will require increased and more
meaningful indigenous participation. Planning or titling efforts that do not
contemplate unique indigenous cosmovisions will be destined for failure. As
somewhat of a model, the World Bank is currently implementing an Indigenous
Peoples Protected Areas project in three Argentine indigenous communities;[280]
the project will attempt to finish land regularization for the communities and
then implement participatory planning programs.[281]
Several members from each of the communities in the project will be involved in
the design and implementation of the project.[282]
Similar
to the need for long-term natural resource planning and indigenous
participation, future land regularization programs in Latin America must
include training and capacitation elements. Indigenous peoples need to be
trained in the use of market tools, legal mechanisms, administrative processes,
and sometimes languages such as Spanish or English. Rural indigenous
populations in Latin America sometimes lack the necessary training to evaluate
complex financial or scientific criteria. For example, the illiteracy rate in
the Peruvian Amazon is fifty five percent, compared with the Peruvian national
average of thirteen percent.[283]
Researchers have also highlighted the shortage of indigenous lawyers in Latin
America.[284]
Another
important consideration in the future of indigenous land regularization in
Latin America will be the ability of the regionís governments to improve
relations between indigenous communities and the government agencies in charge
of indigenous affairs. Frequently poor relations between these vital
stakeholders handicaps various elements of successful land regularization, and
future attempts at confidence and consensus building will be key. Also, the
dangerous security situations in which many of Latin Americaís indigenous
communities now live will continue to determine the realities of land tenure
until governments can effectively enforce indigenous land and resource rights
granted on paper.
With
the recent revision of laws governing indigenous land and resource rights in
Latin America, the foundation has been laid for a new era in the region.
Improved administration and implementation will be the keys for the future so
that the work is completed.
[1] JosÈ R. Martinez Cobo, Volume V of Study of the Problem of Discrimination Against Indigenous Populations, United Nations Working Group on Indigenous Populations; see also Shelton Davis, Indigenous Views of Land and the Environment, World Bank Publication No.
[2] Donna Lee Van Cott, Indigenous Peoples and Democracy: Issues for Policymakers, in Indigenous Peoples and Democracy in Latin America at 4.
[3] Id.
[4] Ailton Krenaki, Brazilian Indian, cited in Manuela Tomei, Los Pueblos IndÌgenas y Tribales y la OIT, International
Labor Organization, Development Policies Branch, Ginebra (1994).
[5] Only some ìindigenous communitiesî in Latin America choose
to describe themselves with that phrase; others prefer terms such as ìnativeî,
ìoriginal,î or ìtraditional.î For
purposes of clarity, this paper will refer to all these groups with the phrase
ìindigenous communities,î based on the definition of ìindigenous peoplesî
developed by the United Nations Sub-commission on the Prevention of
Discrimination and Protection of Minorities: ìIndigenous communities, peoples
and nations are those which, having a historical continuity with pre-invasion
and pre-colonial socieities that developed on their territories, considered
themselves distinct from other sectors of the societies now prevailing in those
territories, or parts of them. They form at present non-dominant sectors of
society and are determined to preserve, develop and transmit to future
generations their ancestral territories, and their ethnic identity, as the
basis of their continued existence as peoples, in accordance with their own
cultural patterns, social institutions and legal systems.î Study of the Problem of Discrimination Against Indigenous
Populations, UN Doc. E/Cn.4/Sub.2/1986/7Add.4, para. 379 (1986).
[6] Arturo S. Bronstein, Hacia el reconocimiento de la identidad y de los derechos de los
pueblos indÌgenas en AmÈrica Latina: SÌntesis de una evoluciÛn y temas para
reflexiÛn , Organizacion Internacional de Trabajo, Equipo TÈcnico
Multidisciplinario (ETM), Pueblos IndÌgenas, see http://www.oit.or.cr/mdtsanjo/indig/bronste.htm.
[7] Different legal terms are used in different countries to
describe the process of titling indigenous lands. Most commonly the process is
called either ìdemarcationî or ìregularization.î This paper will use the term
ìland regularizationî to refer to the legal and administrative process of
delivering land title to indigenous communities, including the identification
and surveying of lands in question, the completion of necessary administrative
requirements, and meaningful, enforceable recognition of the land title.
[8] The United Nations Working Group on
Indigenous Populations (UNWGIP) was originally created in 1982 and functions
beneath the UN High Commission on Human Rights. The UNWGIP is charged with
reviewing developments pertaining to the promotion and protection of human
rights and fundamental freedoms of indigenous populations and giving special attention to the
evolution of standards concerning the rights of indigenous populations. In
addition, the Working Group has over the years considered a number of other
substantial issues relating to indigenous peoples, including special reports
such as: "Indigenous peoples and their relationship to land";
"Indigenous peoples and health"; "Final report of the Special
Rapporteur of the Sub-Commission on treaties, agreements and other constructive
arrangements between States and indigenous populations"; "Permanent
forum for indigenous people"; "International Decade of the World's
Indigenous People"; "World Conference to Combat Racism and Racial
Discrimination." see
http://www.unhchr.org.
[9] Erica-Irene Daes, Human Rights of Indigenous Peoples: Indigenous Peoples and Their
Relationship to Land, Working Paper prepared by Special Rapporteur to UN
Commission on Human Rights, UN Doc. E/CN.4/Sub.2/1997/17 (1998)
http://www.unhchr.ch/html/menu4/subrep/97sc17.htm; see also
Tomei, supra note 1; see also Shelton Davis, Indigenous Views of Land and the Environment,
World Bank Discussion Paper 188.
[10] J. Montgomery Roper; John Frechione; Billie R. DeWalt, Indigenous People and Development in Latin
America: A Literature Survey and Recommendations, Center for Latin American
Studies, University of Pittsburgh (1996), see
http://wbln0018.worldbank.org/essd/kb.nsf/56bfcaf5e1062c0385256673005cf3bb/465fc3df31b87dc08525668600607065?OpenDocument.
[11] 500 Years of
Confrontation: Indigenous Peoples and Security Policy in Latin America,
Institute for National Strategic Studies, McNair Paper Number 53 (1996), see
http://www.ndu.edu/ndu/inss/macnair/ncnair53/m53c1.html; see also Inter-American Commission on Human Rights, Third Report on the Human Rights Situation
in Colombia (1999), see
http://www.cidh.oas.org/countryrep/Colom99en/chapter-10.htm.
[12] Shelton Davis and William Partridge , Promoting the Development of Indigenous
Peoples in Latin America, World Bank Publication, see http://wbln0018.worldbank.org/essd/kb.nsf/56bfcaf5e1062c0385256673005cf3bb/768837b5b57930df8525668700045d00?OpenDocument.
[13] Theodore Macdonald, Jr., Dominique Irvine, L. Esther
Aranda, The Quichua of Eastern Ecuador, Cultural Surivival Inc., in Davis, Indigenous Views, supra note 6.
[14] Davis, Indigenous
Views, supra note 6.
[15] Id.
[16] Id.
[17] Id.
[18] See e.g. Ricardo
Altabe, Aportes de AsesorÌa
JurÌdica de Endepa a la ComisiÛn Mixta Interministerial (Chaco, Argentina).
[19] Davis and Partridge, supra note 9.
[20] Julio Tressiera, Rights of
Indigenous Groups Over Natural Resources in Tropical Forests, Environment Division Working Paper, report to
Inter-American Development Bank (1997).
[21] Davis and Partridge, supra
note 9; Other sources estimate the indigenous
population of LAC region at forty million, see 500 Years of Confrontation, supra note 8.
[22] See e.g. Judith Marinissen, Legislacion Boliviana y
Pueblos Indigenas: Inventario y Analisis en la Perspectiva de las Demandas
Indigenas, Centro de Estudios Juridicos e Investigacion Social (1998),
which suggests eighty percent. Other sources estimate slightly lower.
[23] Alexia Peyser and Juan Chackiel, La Poblacion Indigena en los Censos de America Latina, in Estudios Demograficos de Pueblos Indigenas,
CEPAL, Santiago, Chile (1994) which estimates the indigenous populations of
Guatemala as between fifty and eight percent; of Peru as between twenty five
and forty percent and of Ecuador as thirty four percent.
[24] Id.
[25] George Psacharopoulos and Harry Anthony Patrinos, Indigenous People and Poverty in Latin
America, Washington, D.C. World Bank (1994).
[26] Id.
[27] Report of the
Working Group on Indigenous Populations on its seventeenth session, UN Doc.
E/CN.4/Sub.2/1999/19 para.106; The WHO estimates indigenous life expectancy is
ten to twenty one years shorter than the overall populations in the countries
wherethey live, see Clare Nullis, Indigenous
Peoples: UN Concerned About Declining Health, Associated Press/Long Island Newsday, Nov. 29, 1999. A 1996
IACHR report found that indigenous life expectancy in Brazil was 45.6 years,
down from just three years earlier. In the Amazonian state of Mato Grosso the
estimate was 38 years.
[28] Patrinos, supra
note 22 (1983 study estimated that 0.4 hospital beds exist per 1,000 indigenous
persons in Guatemala, compared to 1.6 hospital beds per 1,000 as a national
average).
[29] Id.
[30] For example, indigenous communities live inside the areas
covered by all 27 oil exploration concessions granted in the Peruvian Amazon
between 1995 and 1998, see Jorge
Dandler, Pueblos Indigenas de la Amazonia
Peruana y Desarrollo Sostenible, Oficina Internacional de Trabajo,
Documento de Trabajo 68 (1998).
[31] Eulogio Frites,
Hugo O. Ortega, Roberto L. Bozzano, Abya-yala:
La tierra de los pueblos indios, Asamblea Permanente por los Derechos
Humanos, Buenos Aires, Argentina (1996); see
also Tressiera, supra note 17
[32] infra to table
of new laws and constitutional provisions.
[33] Surinamese
Govt. Still Refuses to Recognize Indigenous and Maroon Land Rights,
Forest Peoples Programme, see
http://www.cs.org/AVoices/articles/SurinameLandRights5.98.html.
[34] 28 I.L.M. 1382 (1989).
[35] available at http://www.oas.org.
[36] WB Operational Policy 4.20 (1991)
outlines Bank procedures for development projects which involve or impact
indigenous communities, and includes important considerations such as as self
identification and informed participation. Additionally, 4.20 mandates the
preparation of Indigenous Peoples Development Plans, which are impact
assessments (similar to Environmental Impact Assessments) involving the use of
social criteria and anthropologists. The World Bank is out ahead of many Latin
American governmentsí own assessment processes in this regard, and the Bank is
currently reviewing 4.20 for further revision. see http://www.worldbank.org.
[37] Donna VanCott, ed.,
Indigenous Peoples and Democracy in
Latin America (1995).
[38] In Latin America, sub-surface rights to minerals are
always held by the state, subject to exploitation via the terms of the stateís
specific Mineral Code.
[39] For example, Argentina 1994, Bolivia 1994, Brazil 1988,
Colombia 1991, Ecuador 1998, Guatemala 1996, Mexico 1992, Nicaragua 1995,
Panama 1994, Paraguay 1992, Peru 1993; for texts of all these Constitutions, see Political Database of the Americas,
Georgetown University Center for Latin American Studies,
http://www.georgetown.edu/pdba.
[40] Id.
[41] Tressiera, supra
note 17 (Panamanian comarca system); see also IACHR Colombia report, supra
note 8 (regarding that countryís indigenous territorial entities).
[42] Law 23.302 (1985).
[43] Law 19.253 (1995).
[44] Tressiera, supra
note 17.
[45] See e.g. Study,
supra note 2; see also Miguel Alfonso MartÌnez, Study on treaties, agreements and other constructive arrangements
between States and indigenous populations, UN Doc. E/CN.4/Sub.2/1999/20.
[46] Tressiera, supra
note 17 at appendix.
[47] Manuela Tomei, Indigenous
Communities and Oil Development, International Labor Organization, Sectoral
Activities Program Working Paper (1998) (the creation of national parks grew
500 percent between 1950 and 1990. Creation of new national parks has often
been the cause of displacement and resettlement of indigenous communities).
[48] Santiago A. Cueto, Oilís
Not Well in Latin America: Curing the Shortcomings of the Current International
Environmental Law Regime in Dealing With Industrial Oil Pollution in Latin
America Through Codes of Conduct, 11 Fla.
J. Intíl L. 585 (1998).
[49] WorldBank Summary of Argentina, see
http://www.worldbank.org/html/extdr/offrep/lac/ar2.htm.
[50] Frites, supra note 28, at 18.
[51] Tomei, Indigenous
Communities, supra note 44.
[52] Dandler, supra note 27, at 31.
[53] See generally
Mining Policy Research Initiative website, http://www.idrc.org/mpri.
[54] UNWGIP 1999 report,
supra note 24, at para. 73; see also Aseguran a Indigenas los Derechos de Uso de
Agua, El Mercurio (Chile),
Apr. 11, 1998.
[55] see e.g.
Tressiera, supra note 17.
[56] Law 26.845, Art. 7, (1997), available in Compendio de Legislacion para los Pueblos
Indigenas y Comunidades Nativas at 311.
[57] ILO Status Report for Convention 169, March 1999, see
http://www.ilo.org/public/english/20gb/docs/gb274/lils-6.htm.
[58] Id.
[59] Frites, supra note 28, at 14.
[60] Morita Carrasco and
Claudia Briones, La Tierra Que Nos Quitaron, International Working Group
on Indigenous Affairs Document 18 (1996).
[61] Id.
[62] Id. at 54; see also Frites, supra note
28, at 14, 24.
[63] Shelton Davis and Alaka Wali, Indigenous Land Tenure and Tropical Forest
Management in Latin America, World Bank, see
http://wbln0018.worldbank.org/essd/kb.nsf/56bfcaf5e1062c0385256673005cf3bb/ec4ac39cefce3afe8525668f006945a6?OpenDocument#_3vs_.
[64] Id.
[65] Tomei, Indigenous
Communities, supra note 44, at
21.
[66] See generally
Tressiera, supra note 17.
[67] Davis, Indigenous
Land Tenure, supra note 60.
[68] Id.
[69] Conclusions del
Programa de Participacion de los Pueblos Indigenas, Buenos Aires, Argentina
(1997).
[70] see Tressiera, supra note 17 (ìIndigenous communities
often combine forest, agriculture, and conservation in time and space, whereas
Western conceptions divide land physicallyî).
[71] Id., citing Holling, who has studied
ecological implications of this.
[72] Macdonald Jr., et al, supra
note 10.
[73] see Tressiera, supra note 17 (box 1 shows national
populations of Amazon countries).
[75] Joao Pacheco de Oliveira, Las Estadisticas Sobre Tierras Indigenas en Brasil: Una Evaluacion
Critica, in Estudios Demograficos de
Pueblos Indigenas, CEPAL (Santiago) (1994).
[76] Tressiera, supra
note 17.
[77] Id.
[78] Id.
[79] IACHR 1999 report on
Colombia, supra note 8.
[80] Shelton Davis, Participation
and Indigenous Peoples, World Bank (1995); see also Martinez, supra
note 42.
[81] Id.
[82] Oliveira, supra
note 72, at 530-33.
[83] 500 Years of
Confrontation, supra note 8.
[84] Law 23.302, supra
note 39.
[85] Carrasco, supra note 57, at 26.
[86] PPI Conclusiones,
supra note 66, at 4.
[87] IACHR 1999 report on
Colombia, supra note 8.
[88] Id.
[89] Willem Assies, El
Constitucionalismo Multietnico en America Latina: El Caso de Bolivia, paper
prepared for the XII Congreso Internacional ìDerecho Consuetudinario y
Pluralismo Legal: Desafios en el Tercer Milenio,î Arica, Chile, 2000.
[90] Id. at 8.
[91] Carrasco , supra note 57.
[92] Id. Government
crews surveyed 20,000 of the 150,000 hectares and spent $100,000 in the
process. The proposal to utilize satellite methods estimated a total cost of
$50,000 to survey the entire area.
[93] Satellite surveying essentially combines aerial
photography with on-the-ground calibration points taken with a hand-held GPS
unit. No special training is required to take these calibration points. Very
high levels of accuracy can be achieved with the use of ìdifferential GPS.î
This latter technology requires a local GPS reference station. A large amount
of aerial photography already exists via sources such as the US Geological
Survey.
[94] Davis, Indigenous
Land Tenure, supra note 60.
[95] Id.
[96] Id. (re:
AIDESEP/DANIDA project in the Ucayli Department).
[97] Manuela Tomei and Lee Swepston, Pueblos Indigenas y Tribales: Guia para la aplicacion del Convenio num.
169 de la OIT, Oficina Internacional de Trabajo, (1996).
[98] Davis, Indigenous
Land Tenure, supra note 60.
[99] IACHR report on
Brazil, supra note 71.
[100] Tressiera, supra
note 17, at 13.
[101] IACHR report on
Colombia, supra note 8; see also 500
Years of Confrontation, supra note 8.
[102] See e.g. Jorge Dandler, Pueblos Indigenas de la Amazonia Peruana y Desarrollo Sostenible, Oficina Internacional de Trabajo, Documento de Trabajo 68 (1998). (27 of the 28 petroleum concessions currently in existence in the Peruvian Amazon were granted between 1995-98, and indigenous communities are located near all 28).
[103] See e.g. Eulogio Frites, Hugo O. Ortega, Roberto L. Bozzano, Abya-yala: La tierra de los pueblos indios, Asamblea Permanente por los Derechos Humanos, Buenos Aires, Argentina (1996) (privatization of Argentinaís Las Palmas sugar refinery, in the northeast province of Chaco, has caused conflict with Toba communities who claim the sugar refinery land belongs to them under the terms of Argentinaís 1994 Constitutional reform).
[104] Manuela Tomei, Indigenous Communities and Oil Development,
International Labor Organization, Sectoral Activities Program Working Paper
(1998).
[105] See generally 500 Years of Confrontation: Indigenous Peoples and Security Policy in Latin America, Institute for National Strategic Studies, McNair Paper Number 53 (1996), see http://www.ndu.edu/ndu/inss/macnair/ncnair53/m53c1.html; see also Inter-American Commission on Human Rights, Third Report on the Human Rights Situation in Colombia (1999), see http://www.cidh.oas.org/countryrep/Colom99en/chapter-10.htm.
[106] Morita Carrasco and Claudia Briones, La Tierra Que Nos Quitaron, International Working Group on Indigenous Affairs Document 18 (1996).
[107] Id.
[108] Frites, supra note 2, at 41.
[109] Uíwa Willing to Die for the Land, Colorado Daily, Mar. 15, 2000, at 5; see also Rainforest Action Network website, at http://www.ran.org.
[110] Government Reform Committee of the Criminal Justice, Drug Policy and Human Reources Hearing on Colombia, Feb. 15, 2000, available at 2000 WL 177754 (F.D.C.H.) (testimony of Lawrence P. Meriage, Vice President Occidental Oil and Gas Corporation).
[111] Julio Tressiera, Rights of Indigenous Groups Over Natural Resources in Tropical Forests, Environment Division Working Paper, report to Inter-American Development Bank (1997).
[112] Id.
[113] Douglas Ian Stewart, After the Trees: Livingon the TransAmazon Highway at 4 (1994) (estimating that as much as twelve percent of the Brazilian Amazon, or 600,000 square kilometers, was deforested between 1970 and 1988).
[114] Tressiera, supra note 10.
[115] Id. The average settlement in the Brazilian Amazon contains sixty-five people, and ninety of the 300 indigenous groups that existed in the region have become extinct. Many groups now survive with twenty members or less.
[116] Id.
[117] Id. The majority of the seventy five million hectares of tropical forest lost to deforestation between 1981 and 1990 has reverted to unused grasslands, and is now the target of land speculators. See also Stewart, supra note 12, at 5, who posits that cattle ranching is ìecologically and economically the worst possible use of Amazonian lands.î
[118] Tressiera, supra note 10.
[119] See generally Mining Policy Research Intiative, Montevideo, Uruguay, http://www.idrc.org/mpri.
[120] Some limited exceptions exist. In Colombia, for example, certain indigenous lands are considered ìindigenous mining reserves,î meaning that the community may enter contracts with third parties for mining operations thereon and may also designate portions of the reserve off-limits because of religious or social importance.
[121] John Redwood III, The Carajas Iron Ore Project, appearing in Mining and the Community: Results of the Quito Conference, Gary McMahon ed., EMT Occasional Paper No. 11 (April 1998).
[122] Id.
[123]
Id.
[124] Id.
[125] Id.
[126] Mauricio Silva, Aseguran a IndÌgenas los Derechos de Uso de Agua, El Mercurio, Chile, Apr. 11, 1998.
[127] Jose Aylwin, Derechos de los Pueblos IndÌgenas de Chile en la Transicion Democratica, appearing in Estudios Sociodemograficos de Pueblos IndÌgenas, CELADE and CEPAL, Santiago, Chile (1994).
[128] Report from 17th Session of United Nations Working Group on Indigenous Populations, July 1999, http://www.unhchr.ch.
[129] Tressiera, supra note 10.
[130] Shelton Davis and Alaka Wali, Indigenous Land Tenure and Tropical Forest Management in Latin America, World Bank, see http://wbln0018.worldbank.org/essd/kb.nsf/56bfcaf5e1062c0385256673005cf3bb/ec4ac39cefce3afe8525668f006945a6?OpenDocument#_3vs_.
[131] Willem Assies, El Constitucionalismo Multietnico en America Latina: El Caso de Bolivia, paper prepared for the XII Congreso Internacional ìDerecho Consuetudinario y Pluralismo Legal: Desafios en el Tercer Milenio,î Arica, Chile, 2000.
[132] Id.
[133] Id.
[134] Id.
[135] Id.
[136] Id.
[137] Carrasco, supra note 5, at 104-124. A number of indigenous communities in the Chaco signed treaties guaranteeing them land rights during the 18th, 19th, and 20th centuries. The provincial legislature of the Chaco passed its Aborginal Law in 1987 (Ley No. 3258), which in its second chapter provided that traditional indigenous lands in the state would be regularized, including free surveying and an exemption from property taxes. Further, in 1990, the Chaco provincial legislature specifically recognized one communityís (MeguexogochÌ) 1924 agreement over land rights made with Argentine President Marcelo T. DíAlvear.
[138] Id. at 121. Chaco provincial law 3.811 (1992) and 3.963 (1993) prohibited logging on traditional lands of several Chaco indigenous communities.
[139] ValentÌn Derewicki, Piratas de la madera en una rica reserva forestal chaqueÒa, La Nacion, Buenos Aires, Argentina Nov. 11, 1990.
[140] Id.
[141] Tomei, supra note 3, at 1.
[142] Id.
[143] Id.
[144] 945 F.Supp. 625 (S.D.N.Y. 1996).
[145] 175 FRD 50 (S.D.N.Y. 1997).
[146] Jota v. Texaco, 157 F.3d 153 (2d Cir. 1998). The Court of Appeals remanded the proceeding to the United States District Court for the Southern District of New York, which has since reopened the record in the case, in the face of a motion by Texaco under which the company would consent to the jurisdiction of Ecuadorian and Peruvian courts.
[147] Tomei, supra note 3.
[148] Id.
[149] World Bank Operational Policy 4.20 requires preparation of social impact assessments called Indigenous Peoples Development Plans in any project financed with Bank money. See http://www.worldbank.org
[150] Eulogio Frites, Hugo O. Ortega, Roberto L. Bozzano, Abya-yala: La tierra de los pueblos indios, Asamblea Permanente por los Derechos Humanos, Buenos Aires, Argentina (1996).
[151] Morita Carrasco and Claudia Briones, La Tierra Que Nos Quitaron at 113, International Working Group on Indigenous Affairs Document 18 (1996).
[152] Id. at 105.
[153] Id.
[154] Id.
[155] Id. at 110.
[156] Frites, supra note 1 (estimating a population of 600,000 split among twenty four ethnic groups); see also Juan Carlos Radovich and Alejandro Balazote, Present Situation of Indigenous Populations in Argentina, CultureLink, August 1999 (estimating population ranging from 500,000 to one million).
[157] See generally Frites, supra note 1.
[158] Margaret Bigot, Graciela Beatriz Rodriguez, Hector Vasquez, Los asentamientos tobas en la ciudad de Rosario, in La Problematica Indigena, Juan Carlos Radovich and Alejando O. Balazote eds. (1992).
[159] Carrasco and briones, supra note 2.
[160] Id.; see also Radovich and Balazote, Present Situation, supra note 7.
[161] Indigenous inhabitants who have relocated to urban areas cannot claim land rights under the 1994 Constitution because their new homes are not on ìtraditional lands.î These communities may also complicate their future claims by vacating.
[162] Radovich and Balazote, Present Situation, supra note 7.
[163] Tierra del Fuego es la provincia mas rica, Clarin, Oct. 4, 1999 at 23. According to a 1994-98 study by the Capital Foundation.
[164] Juan Carlos Radovich and Alejandro O. Balazote, Introduction, in La Problematica Indigena (1992).
[165] George Psacharopoulos and Harry Anthony Patrinos, Indigenous People and Poverty in Latin America, Washington, D.C. World Bank (1994).
[166] Radovich and Balazote, Introduction, supra note 15.
[167] Leonor Slavsky, Los indigenas y la sociedad nacional. Apuntes sobre politicas indigenista en la Argentina, in La Problematica Indigena (1992).
[168] Cuyo is the name used to describe the Argentine provinces of Mendoza, San Juan, and San Luis. The Central Sierras are located in the state of Cordoba.
[169] Slavsky, supra note 18, (discussing the impact of the European conquest on the Central Sierra pueblos).
[170] Radovich and Balazote, Present Situation, supra note 7.
[171] AIRA Codice Aborigen Argentino; Regimen Legal para las Comunidades Indigenas Argentina (1988).
[172] Carrasco and Briones, supra note 2.
[173] Id.
[174] Slavsky, supra note 18. Army involvement in Argentine indigenous policy, however, continues today. The army and Mapuche leaders endured a ten-day standoff in Neuquen in 1995, as indigenous community members occupied the offices of the state-run corporation which administers their lands and natural resources, to denounce illegalities within the corporation and demand recognition of land and grazing rights. Mapuches in Chubut also endured a 1995 standoff with the army, after which they obtained a protective judicial order.
[175] Carrasco and Briones, supra note 2.
[176] Id.
[177] Id.
[178] Id.
[179] Id.; Ley 2.964 of 1958 granted indigenous communities usufruct rights to the use and occupation of their lands
[180] Id.
[181] Id.
[182] Frites, supra note 1.
[183] Carrasco and Briones, supra note 2.
[184] Radovich and Balazote, Introduction, supra note 15; A new census is slated for 2001, and coordinating meetings have been convened by INDEC with a view to establishing culturally appropriate techniques to ascertain a more accurate figure.
[185] For example, the Neuquen Indigenous Confederation was formed in 1971 and the Indigenous Association of the Republic of Argentina was formed in 1975.
[186] Radovich and Balazote, Present Situation, supra note 7.
[187] See Informe de la Comision Nacional sobre la Desaparicion de Personas: nunca m·s (1997); see also Marguerite Feitlowitz, A Lexicon of Terror: Argentina and the legacies of torture (1998).
[188] Id.
[189] Id.
[190] Radovich and Balazote, Present Situation, supra note 7.
[191] Id.; see also Conclusions del Programa de Participacion de los Pueblos Indigenas, Buenos Aires, Argentina (1997).
[192] See Carrasco and Briones, supra note 2 (describing continued titling of indigenous land to non-indigenous individuals).
[193] Frites, supra note 1.
[194] See Carrasco and Briones, supra note 2.
[195] Decree 155 of 1989. AIRA Codice, supra note 22.
[196] Latin American constitutions are available online from the Political Database of the Americas, Georgetown University Center for Latin American Studies, http://www.georgetown.edu/pdba.
[197] Indigenous communitiesí personeria juridica is registered in the Registro Nacional de Comunidades Indigenas (RENACI).
[198] Expropriation has been the main issue for Kolla communities from Argentinaís northwest states of Salta and Jujuy, where colonial families received huge tracts of land which have been used for sugar production. Expropriation has not played a significant role in the land regularization struggles of most other PIís throughout the country.
[199] See Carrasco and Briones, supra note 2; see also AIRA Codice, supra note 22.
[200] JosÈ Derewicki, Restituyen
tierras a los collas de Salta, La
Nacion March 20, 1997.
[201] Id.
[202] Frites, supra note 1; For example, the Mapuche community of Los Toldos, in Buenos Aires province, obtained recognition in 1985 of its rights to 16,000 hectares, owing to an 1862 agreement between Bartolome Mitre and Mapuche chief Ignacio Coliqueo.
[203] Id. This has been the case for a Tehuelche community in the southern state of Esquel. After declaring loyalty to Argentina during border disputes with Chile in the early 20th century, the national government awarded Tehuelche families 22,000 hectares in 1908. The community was subsequently dispossessed of its lands during the mid-20th century, however, and community leaders have been unable to obtain meaningful recognition of their rights, despite the fact they were first granted ninety years ago and explicitly protected again by the 1994 Constitution
[204] Carrasco and Briones, supra note 2.
[205] Frites, supra note 1.
[206] Miguel Alfonso MartÌnez, Study on treaties, agreements and other constructive arrangements between States and indigenous populations, UN Doc. E/CN.4/Sub.2/1999/20.
[207] INAI was created by Law 23.302.
[208] Law 3.727 from 1898 installed responsibility for indigenous affairs in both the Ministry of Interior and the Ministry of Foreign Relations. Control was then moved to the a Secretariat under the nationís Presidency in 1943. In 1958, the Directorate of Indigenous Affairs was created under the control of the Ministry of Work and Social Security; this directorate was shifted to the Ministry of the Interior in 1961. Then in 1985, Law 23.302 created INAI, originally placed under the control of the Ministry of Health and Social Action. INAI has since been transferred to the Social Development Secretariat of the national Presidency, where it is currently.
[209] 1996 figures provided by INAI show the agency received total funding of $3.2 million, or roughly five dollars per indigenous inhabitant in the country, not considering administrative costs to distribute the five dollar bills.
[210] See e.g. Aportes de AsesorÌa JurÌdica de Endepa a la ComisiÛn Mixta Interministerial (Chaco).
[211] Carrasco and Briones, supra note 2.
[212] Id.
[213] Id.; see also Centro de Estudios Legales y Sociales, Derechos de los Pueblos Indigenas, in Derechos Humanos en la Argentina (1998).
[214] Law 6.469.
[215] Carrasco and Briones, supra note 2.
[216] Id.; Community members filed multiple legal actions to stop the bridgeís construction, to no avail. Carrasco notes the Mercosur motivations behind placement of the bridge, and the fact that both Argentina and Paraguay lack sufficient highway infrastructure leading up to the bridge.
[217] Id.
[218] Id.
[219] Id.
[220] Frites, supra note 1.
[221] Inter-American Commission on Human Rights (IACHR), Report on the Situation of Human Rights in
Brazil (1998) (identification published in the Official Gazette of the
Union on May 21, 1993).
[222] Id.;
see also Linda Rabben, Hostages to Fortune: Macuxi, Wapixana,
IngarikÛ and Taurepang of Raposa-Serra do Sol, Cultural Survival Online,
http://www.cs.org/AVoices/articles/Rabben.html.
[223] IACHR Report, supra note 1.
[224] Rabben, supra
note 2, citing Instituto
Socioambiental, a Brazilian NGO.
[225] Id.; see also 500 Years of Confrontation: Indigenous
Peoples and Security Policy in Latin America, Institute for National
Strategic Studies, McNair Paper Number 53 (1996), see http://www.ndu.edu/ndu/inss/macnair/ncnair53/m53c1.html
[226] Rabben, supra
note 2.
[227] Id.
[228] IACHR Report, supra note 1; see also Alcida Rita Ramos,
Indigenism: Ethnic Politics in Brazil (1998) (946,000 square kilometers
out of the national total of 8.5 million square kilometers).
[229] Joao Pacheco de Oliveira, Las Estadisticas Sobre Tierras Indigenas en Brasil: Una Evaluacion
Critica, in Estudios Demograficos de
Pueblos Indigenas, CEPAL (Santiago) (1994).
[230] Id.
[231] Luis Esnal, Crean un "paÌs" indÌgena en Brasil, La Nacion, Buenos Aires, Argentina,
Apr. 30, 1998. Only the CayapÛ reserve in the Brazilian state of Para is
larger, measuring more than 11 million hectares.
[232] Id.
[233] Under the 1988 Constitution, indigenous areas are created
in three steps: (1) identification, where a work group appointed by the
president of FUNAI prepares a field study about the traditional lands in
question; (2) delimitation, where the work groupís proposal is either approved
or modified by an administrative agency; (3) homolgomation, where the president
of Brazil approves the demarcation by decree.
[234] Brazilian
rainforests face new threat from loggers and ranchers , press release
issued Mar. 6, 1996 by EarthAction Network, see
http://www.oneworld.org/news/reports/earthaction.html.
[235] IACHR Report, supra note 1 (CIMI estimates forty three
indigenous peoples were murdered in 1993).
[236] Id.
[237] Oliveira, supra
note 9.
[238] IACHR Report, supra
note 1.
[239] Id.
[240] Id.
[241] CIA World Factbook
for Brazil, http://www.odci.gov/cia/publications/factbook/br.html.
[242] IACHR Report,
supra note 1. This decrease in life expectancy has been accompanied by an
upturn in epidemiological disease among indigenous inhabitants of Brazil.
[243] Brazil is roughly equal to the United States in size, with
national territory of 8.5 million square kilometers.
[244] 3,286,170 square miles.
[245] Alcida Rita Ramos, The Indigenous Movement in Brazil: A Quarter Century of Ups and Downs, Cultural
Survival Quarterly, Vol.21, Issue 2, (1997), see http://www.cs.org/AVoices/articles/LevelFour-Ramoshtm.htm.
[246] Id.
[247] Id.
[248] Id.
[249] Id.
[250] Art. 129 of 1934 Constitution; see Procedures for Demarcation of Indigenous Lands in Brazil, issued by
Brazilian embassy, see http://www.brasil.emb.nw.dc.us/evst06.htm.
[251] Art. 186 of 1967 Constitution, see Id.
[252] Id.
[253] IACHR
Report, supra note 1. Articles 231-32 recognize ìlands occupied by
Indians,î composed of four parts:
(1) those inhabited on a permanent basis
(2) those used for productive
activities
(3) those essential to the
preservation of environmental resources necessary for well-being
(4) those necessary for physical and cultural reproduction,
according to usages, customs and traditions
[254] Oliveira, supra
note 9.
[255] Id.
[256] IACHR Report, supra note 1.
[257] Id.
[258] Id.
[259] Id.
[260] Oliveira, supra
note 9.
[261] Procedures for
Demarcation, supra note 30.
[262] Id.
[263] Id.
[264] IACHR
Report, supra note 1; see also
Karen Bravo, Balancing Indigenous Rights to Land and the Demands of Economic
Development: Lessons from US and Australia, 30 Colum. J.L. & Soc. Probs. 529 (1997).
[265] EarthAction, supra
note 14.
[266] CIMI Newsletter, June 23, 1995, see http://www.hartford-hwp.com/archives/41/028.html.
[267] CIMI Newsletter, Feb. 6, 1996, see http://www.hartford-hwp.com/archives/41/058.html.
[268] IACHR Report, supra
note 1; see also Rabben, supra note 2.
[269] Oliveira, supra
note 9.
[270] Id.
[271] IACHR Report, supra
note 1.
[272] Oliveira, supra
note 9.
[273] IACHR Report, supra
note 1 (re: Map of Hunger Among Indigenous Peoples).
[274] Id.
[275] Eleonora Gosman, Acusan
a otro diputado en Brazil por vÌnculos narcos, Clarin, Buenos Aires, Argentina, Oct. 4, 1999 at 28.
[276] Id.
[277] Id.
[278] Id.
[279] Julio Tressiera, Rights of Indigenous Groups Over Natural Resources in Tropical Forests,
Environment Division Working Paper, report to Inter-American Development Bank
(1997).
[280] The three communities involved in the
project are: (i) the Mapuche community of Pulmari, in the province of Neuquen;
(ii) the Diaguita-Calchaqui community of Amaicha del Valle in the province of
Tucuman; and (iii) the Kolla community of Finca Santiago in the province of
Salta. See Argentina-Indigenous Protected
Areas Project,
http://wbln0018.worldbank.org/essd/kb.nsf/56bfcaf5e1062c0385256673005cf3bb/30e0aa92f4b89333852567b0059e22e?OpenDocument
[281] Id.
[282] Id.
[283] Julio Tressiera, Rights of Indigenous Groups Over Natural Resources in Tropical Forests, Environment Division Working Paper, report to Inter-American Development Bank (1997).
[284] Id.
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