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UNCLAS SECTION 01 OF 03 BRASILIA 000001 
 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: PHUM PGOV BR
SUBJECT: BRAZIL: SUPREME COURT UPHOLDS BROAD INDIAN LAND 
RIGHTS 
 
¶1.  (U)  Summary.  The Federal Supreme Court (STF), in a 
partial vote cast by eight of the 11 judges, ruled on 
December 10 that the Raposa Serra do Sol (RSS) Indian 
reservation in Roraima state should exist with a single 
continuous border.  The decision will put an end to 
non-indigenous farming in the RSS and could result in the 
expulsion of a small number of non-indigenous persons from 
the RSS.  Attorneys and activists in favor of continuous 
demarcation cited the Brazilian Constitution's guarantees of 
indigenous rights, the UN Declaration on the Rights of 
Indigenous Peoples, and the International Labor Organization 
Indigenous and Tribal Peoples Convention.  This case was a 
landmark test of indigenous land rights set out in the 1988 
Constitution and is expected to serve as precedent for other 
disputes involving Indian lands in Brazil.  The ruling is a 
victory not only for those in favor of strong protections for 
indigenous land rights, but also for federal power over local 
Roraima interests.  End summary. 
 
¶2.  (U)  The Federal Supreme Court, in a partial vote cast by 
eight of the 11 ministers (judges), ruled on December 10 that 
the RSS Indian reservation in Roraima should exist with a 
single continuous border.  This is a defeat for seven 
non-indigenous rice growers and their followers, who argued 
that they have valid title to their lands inside the 
reservation, that the Court should allow enclaves for rice 
growing and allow non-indigenous residents to remain. 
Minister Marco Aurelio Mello asked for more time to examine 
the case and reach a finding, and under Court rules, voting 
was then suspended, but with eight judges already voting in 
favor of continuous demarcation, as it is called, the case is 
considered decided.  Judges who have voted may change their 
votes, but this is unlikely. 
 
¶3.  (U)  The ruling is a victory for the Indigenous Council 
of Roraima (CIR), which has ties to the Catholic Church, and 
is accused by its enemies of being an instrument of foreign 
NGOs.  It is a loss for seven non-indigenous rice growers, 
and Indians allied with the Society of Indians in Defense of 
Roraima (SODIUR), which has ties to evangelical Christian 
groups.  Proponents of demarcation with enclaves have argued 
that anything less than enclaves would have endangered 
Brazilian sovereignty by keeping military and police out of 
federal lands along the strategically important border with 
Venezuela and Guyana, and that foreign NGOs working through 
CIR and other indigenous groups posed a risk to the entire 
Amazon region and threatened Brazilian sovereignty.  (Note: 
the Defense Strategy signed by President Lula on December 18 
specifically asserts Brazilian sovereignty over the Amazon 
and tasks the military with preserving it.  End note.)  The 
case also pitted state interests against the federal 
government: Roraima politicians across the political spectrum 
supported the rice growers, while the federal executive 
branch continued to back its 2005 decree for continuous 
demarcation that had provoked the court challenge in the 
first place.  The case also produced an historic first when 
CIR's attorney, Joenia Batista de Carvalho, a Wapichana 
Indian woman, became the first indigenous person to argue a 
case before Brazil's highest court. 
 
Background 
 
¶4.  (U)  The RSS occupies an area of 1.7 million hectares 
(17,000 km2), or slightly less than Connecticut and Rhode 
Island together, in the state of Roraima bordering Venezuela 
and Guyana.  The population of the RSS is about 19,000, 
including Macuxis, Wapichanas, and three other Indian 
ethnicities; Indians have been living there since before the 
arrival of Europeans.  Seven non-indigenous rice growers, all 
of them natives of other states, have been active in the RSS 
since the 1990s. 
 
¶5.  (U)  In 2005, the GOB designated the RSS an Indian 
reservation, subject to final demarcation of boundaries.  The 
GOB informed non-indigenous persons they had to leave and 
 
BRASILIA 00000001  002 OF 003 
 
 
rice growers that they could not continue production inside 
the reservation.  The GOB offered indemnity, and many 
accepted it and moved out.  A small number of non-indigenous 
persons remain; they are mostly persons married to Indians. 
The rice growers do not live inside the reservation, but 
employ many Indians who do.  In 2005 a number of interests 
brought suit against the GOB in the STF to block the 
demarcation, and it was that case that the Court considered 
on December 10. 
 
Legal References 
 
¶6.  (U)  In defense of the continuous demarcation case, CIR 
and other indigenous groups cited the Brazilian Constitution 
and international law.  Article 231 of the Brazilian 
Constitution of 1988 provides extensive guarantees of 
indigenous rights, including "their original rights to lands 
they traditionally occupy," although certain water and 
mineral rights require congressional authorization, while 
references in international law include Article 26 of the UN 
Declaration on the Rights of Indigenous Peoples, which Brazil 
voted for, and ILO Convention 169, which Brazil ratified, 
which discusses land in Part II (Articles 13-19). 
 
Judges Cite Constitution, Not UN Declaration 
 
¶7.  (U)  The STF judges who spoke on December 10 cited the 
Brazilian Constitution, not international law, in their 
statements.  Two judges referred to the UN Declaration, but 
only to emphasize that the Constitution is paramount. 
Minister Carlos Alberto Menezes Direito said the Declaration 
cannot take precedence over national sovereignty and the 
federative principle.  Minister Cezar Peluso said the Court, 
in this case, should declare the "complete juridical 
inoperability" of the Declaration, which in his view was 
nothing more than a political "exhortation" in behalf of 
indigenous peoples, and since it is neither treaty nor 
international convention, has no normative status.  As far as 
Mission knows, no judge even referred to ILO Convention 169 
in her/her opinion.  (Comment: Unlike the UN Declaration, ILO 
Convention 169, as an international convention that Brazil 
ratified, could have been cited by the judges as binding law, 
although its language may have been too vague to help this 
case.  Moreover, the Brazilian Constitution already had 
enough broad language for the continuous demarcation 
advocates.  End comment.)  Opponents of continuous 
demarcation argued that the administrative procedures leading 
up to the demarcation in 2005 were so seriously flawed and 
partial that the decision should be reconsidered. 
 
National Sovereignty Not Threatened 
 
¶8.  (U)  In a response to arguments that continuous 
demarcation would harm national sovereignty by limiting 
federal access to strategic Indian lands, Minister Menezes 
Direito stated that access to the region by federal troops 
and police must not be hindered, and Indians must not have 
the right to block federal infrastructure projects such as 
highways.  He set out eighteen limitations to Indian rights 
that will have the force of law when the Court's ruling is 
official after the remaining three votes are cast.  (Note: 
The limitations reiterate existing Constitutional limitations 
on land, water, and mineral rights, but they also explicitly 
set out federal and state government rights and free transit 
rights for non-indigenous persons on which the Constitution 
is silent.  End note.)  Defense Minister Nelson Jobim said he 
does not consider that the ruling increases the region's 
vulnerability, and said  the guarantee of unrestricted 
military access to the RSS will not increase tension because 
Indians accept the presence of military forces there.  Jobim 
and indigenous activists are on the same page on this point: 
Executive Secretary Kleber Karipuna of the Coordination of 
Indigenous Organizations of the Brazilian Amazon (COIAB) told 
poloff that throughout the Amazon region Indians make up the 
a large number of conscripts and indigenous people have no 
 
BRASILIA 00000001  003 OF 003 
 
 
quarrel with the presence of Brazilian soldiers. 
 
Precedent for Indian Land Cases 
 
¶9.  (U)  The decision is expected to serve as precedent for 
as many as 227 other cases of Indian lands still in 
administrative processing, and Minister Peluso said the 
Court's decision on the matter ought to become a national 
precedent, a "leading case." 
 
¶10.  Comment:  (U)  The RSS case was a landmark test of the 
indigenous land rights set out in the 1988 Constitution.  If 
the Constitution did not contain broad guarantees of Indian 
land rights, the case could have turned out differently, 
possibly even decided with reference to the UN Declaration or 
the ILO Convention.  But without the Constitution's 
guarantees of Indian rights, the 2005 decree on the RSS might 
have been impossible in the first place.  This a victory not 
only for those in favor of strong protections for indigenous 
land rights, it is a victory for federal power over local 
Roraima interests.  Finally, we should note that the UN 
Declaration, which the USG voted against, did not serve as a 
basis for the judicial decision and therefore was not 
strengthened either nationally or globally, while judges 
strengthened the Constitution as the source of law by basing 
their decisions wholly on existing Constitutional rights. 
KUBISKE