Hosted by NativeWeb Indigenous Land Regularization in Latin America

Indigenous Land Regularization in Latin America

Andrew M. Crain, Esq.

Table of Contents




Chapter One: Key Issues in Indigenous Land Regularization


Latin Americaís Indigenous Inhabitants and Their Lands

Rights at the International and Regional Levels

Rights at the National Level

Recent Modifications


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



Chapter Two: Impacts of Major Development Activities in Indigenous Communities


Highway Building and Settlement



Oil Development



Chapter Three: Indigenous Land Regularization in Argentina


Indigenous Argentina

The Law of Indigenous Land Regularization

Indigenous Land Regularization Realities and Key Considerations



Chapter Four: Indigenous Land Regularization in Brazil


Indigenous Brazil

The Law of Indigenous Land Regularization

Indigenous Land Regularization Realities and Key Considerations



Conclusions and Final Recommendations



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]



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.



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.

Chapter Two: Impacts of Major Development Activities in Indigenous Communities



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.


Highway Building and Settlement

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]


Oil Development

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.

Chapter Three: Indigenous Land Regularization in Argentina


ìThe human being is land that walks.î

--Indigenous poet from Humahuaca, Jujuy, northwestern Argentina.[150]



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.


An atmosphere of conflict and confrontation

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.


Indigenous 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 Realities and Key Considerations

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

[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

[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); 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

[11] 500 Years of Confrontation: Indigenous Peoples and Security Policy in Latin America, Institute for National Strategic Studies, McNair Paper Number 53 (1996), see; see also Inter-American Commission on Human Rights, Third Report on the Human Rights Situation in Colombia (1999), see

[12] Shelton Davis and William Partridge , Promoting the Development of Indigenous Peoples in Latin America, World Bank Publication, see

[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

[34] 28 I.L.M. 1382 (1989).

[35] available at

[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

[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,

[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

[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,

[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

[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

[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).

[74] Inter-American Commission on Human Rights, Report on the Situation of Human Rights in Brazil (1998), see

[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; see also Inter-American Commission on Human Rights, Third Report on the Human Rights Situation in Colombia (1999), see

[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

[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,

[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,

[129] Tressiera, supra note 10.

[130] Shelton Davis and Alaka Wali, Indigenous Land Tenure and Tropical Forest Management in Latin America, World Bank, see

[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

[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,

[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,

[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

[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

[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,

[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

[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

[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

[267] CIMI Newsletter, Feb. 6, 1996, see

[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,

[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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