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R 202042Z MAR 09
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UNCLAS SECTION 01 OF 02 BRASILIA 000349 
 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: PHUM PGOV BR
SUBJECT: BRAZIL: SUPREME COURT UPHOLDS BROAD INDIAN LAND 
RIGHTS - UPDATE 
 
REF: BRASILIA 1 
 
¶1. Summary. In a landmark Indian land rights case, the Supreme Court on March 19 reached a final decision in favor of sweeping land rights for Indians on the Raposa Serra do Sol (RSS) reservation in Roraima state (reftel). Non-indigenous rice growers will have to abandon their plantations inside the reservation, which the court decided is to have the "continuous demarcation" that the GOB set out for it, without any enclaves for non-indigenous habitation or economic activity. The federal government explicitly retains rights for military purposes, infrastructure improvements, and others matters; Indians will not have subsoil water and mineral rights, but are exempt from federal income and land taxes. Security forces are to help enforce the ruling, which will probably be carried out without violent confrontations. End summary. 

VICTORY FOR INDIGENOUS RIGHTS SUPPORTERS - - - - - - - - - - - - - - - - - - - - - 

¶2. On March 19 the Brazilian Supreme Court ("Superior Tribunal Federal") handed down a final ruling in the Raposa Serra do Sol case in which federal senators from Roraima, acting in behalf of non-indigenous rice growers, sued to annul the Justice Ministry's demarcation of the reservation as a continuous area in which non-indigenous persons could not live or work. Eight of the court's 11 judges had already voted in favor of continuous demarcation by last December, but one judge, Marco Aurelio Mello, requested more time, which delayed the final decision until now. Mello voted against continuous demarcation, but the final vote was 10 to one. The decision is a major victory for indigenous rights supporters and is expected to serve as a precedent in other, similar cases. 

NINETEEN CONDITIONS - - - - - - - - - - 

¶3. The ruling includes 19 conditions to guarantee and clarify both federal government and indigenous rights in the RSS. Judge Menezes Direito set out the first 18 last December; the 19th condition orders that all relevant federal bodies actively participate in enforcing the decision. Key conditions ensure the federal government's right to conduct military activities in the RSS, and to build roads, military installations and other infrastructure, while non-Indians may still freely enter and move about the RSS. Indians do not have subsoil mineral or energy rights, but may receive profits from their exploitation. Farming and ranching by outsiders is explicitly banned. The judges also determined that the size of the RSS cannot be increased, although the language does not explicitly forbid reducing its size. 

¶4. The nineteen conditions (condensed and paraphrased): - Congress may alter the usufruct of water and land, as long as there is a public interest as stated in Article 231 of the Brazilian constitution (Note. Article 231 guarantees Indians the "original rights to the lands they traditionally occupy, it being incumbent upon the Union to demarcate, protect and ensure respect for all of their property." End note.) 

- Indian usufruct does not include water resources and energy potential, for which the Congress is responsible. 

- Indian usufruct does not include mineral wealth, which depends on Congressional authorization, but Indian sharing in the profit is guaranteed. 

- Indian usufruct does not include prospecting and mining unless permission is obtained. 

- Indian usufruct is not above the National Defense Policy. The government may install military bases, outposts and other military interventions, may expand the highway network, explore for strategic alternative energy and other wealth independently of the Indian communities and FUNAI (the federal Indian agency). 

BRASILIA 00000349 002 OF 002 

- The activities of the armed forces in the RSS are guaranteed without consultation with the Indian communities or FUNAI. 

- Indian usufruct does not impede the government from installing buildings, communication networks, roads, etc. 

- Indian usufruct of designated conservation areas is the responsibility of the Chico Mendes Biodiversity Conservation Institute ("ICM"). 

- The ICM will administer the conservation areas in consultation with the Indians. 

- ICM will control entry of visitors and researchers in the conservation areas. 

- Visitors can freely enter all other areas of the RSS according to FUNAI rules. 

- Non-Indians may not be charged an entry fee, toll or anything of value. 

- Fees or a charge of anything of value may not be levied for use of use of roads, power lines, public equipment etc. 

- The lands may not be rented; no judicial act can limit or restrict the full exercise of the usufruct and direct possession. 

- No outsider may hunt, fish, or gather fruits or engage in any extractive farming and ranching. 

- Land occupied and held by the Indians and Indian incomes are exempt from taxation. 

- The demarcated area cannot be increased. - Indian rights are inalienable. 

- Federal bodies must participate in the all phases of the demarcation. 

IMPLEMENTATION - - - - - - - - 

¶4. Supreme Court Judge Carlos Ayres Britto is to decide on March 20, after speaking with Justice Minister Tarso Genro and a regional court judge, on the timetable for enforcing the decision, which according to media reports will involve units of the National Public Security Force (FSNP), an elite body of specially trained federal police agents. The FNSP has already been involved in peacekeeping in the RSS; when poloff visited RSS last October he was accompanied by FSNP agents stationed in the village of Surumu, site of violent clashes last year after an armed attack on Indians by gunmen suspected to be in the employ of rice growers. Britto said on March 19 that he did not expect confrontations: "there is no longer an atmosphere for conflicts. A court order is to be obeyed, especially a Supreme Court order." But rice grower Paulo Cesar Quartiero, former mayor of Pacaraima, a town whose administrative authority includes Surumu, told Correio Braziliense, "What the Supreme Court did is a crime" and said he now fears for his family's safety. 

(Note: Quartiero's concern for his safety may be valid but violence against him would not be without perceived provocation. Last May, federal police agents arrested him on charges of conspiracy and illegal possession of arms and explosives. Indians that poloff spoke with in Roraima last October are convinced he is linked to last year's violence in the RSS. End note.) 

Even though the court order has immediate effect, Britto was careful to point out that he would not seek immediate expulsion of the rice growers, and would aim for something "in the short term," which should let passions ebb and make a peaceful implementation more likely. 

KUBISKE