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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