The Constitution of 88
Introduction
The constitutional Rights of the indigenous peoples are expressed
in a specific chapter of the Constitution of 1988 (title VIII, "Of
the Social Order ", chapter VIII, "of the indigenous peoples"),
aside from other regulations throughout the text and an article of the
Acts of the Transitory Constitutional Regulations.
This deals with the Rights marked by at least two innovative and important
concepts in relation to prior Constitutions and the so-called The Indian
Statute. The first innovation is the abandonment of the assimilationist
point of view, which considered the indigenous peoples as a transitory
social category, destined to disappear. The second innovation is that
the rights of the indigenous peoples over their lands are defined in
the concept of original rights that are prior to the creation of the
State itself. This is a result of the de facto historical recognition
that the indigenous peoples were the first occupants of Brazil.
The new Constitution establishes, in this manner, a new outlook for
the relations between the State, Brazilian society and the indigenous
peoples .
With the new constitutional concepts, the indigenous peoples were
assured of respect for their social organization, customs, languages,
beliefs and traditions. For the first time, the indigenous peoples of
Brazil were recognized as having the right to be different, that is,
to be indigenous peoples and remain that way indefinitely. This is stated
in the head of article 231 of The Constitution:
"It is recognized that the indigenous peoples have the right
to their social organization, customs, languages, beliefs and traditions,
and their original rights over the lands that they have traditionally
occupied, it being the duty of the federal government to demarcate these
lands, protect them and ensure that all their properties and assets
are respected”.
Note that the right to be different does not imply fewer rights or
privileges because the Constitution of 1988 assured indigenous peoples
the right to use their languages and own processes for education at
the primary school level (Article 210, § 2º), thus inaugurating
a new phase for the implementation of indigenous grade school education.
Furthermore, the Constitution allows the indigenous peoples, their
communities and organizations, just as any individual or corporate entity
in Brazil, the right to file suit in court in the defense of their rights
and interests.
The new Constitution was innovative in every sense, establishing above
all that the Rights of the Indians to the lands they traditionally occupy
are of an original nature, in the sense that they are original to the
land, prior to the formation of the Brazilian state or government, existing
independently of any official recognition.
The text in force gives a constitutional category or status to the
concept of indigenous lands, which is defined as follows in paragraph
2 of Article 231:
"Lands traditionally occupied by the Indians are those that
they have inhabited permanently, used for their productive activity,
their welfare and necessary for their cultural and physical reproduction,
according to their uses, customs and traditions.”
These characteristics, therefore, define a specific area of land as
being indigenous. Once these characteristics are present, and are verified
in accordance with the uses, custom s and traditions of indigenous people’s
the right to the land by the community that occupies it is an existing
right and its legitimized independently of any constitutional act. In
this sense, the demarcation of indigenous land, the result of recognition
by the state, is an act that merely states or declares that said land
is indigenous, and its objective is simply to delineate the real extension
of their title to ensure the full efficacy of the the constitutional
ruling and the State has the obligation to protect these indigenous
lands
With regard to Indigenous lands, the Constitution of 1988 stipulates
further that:
- they are included as part of the assets of the union;
- their use is specified for the permanent holding and title by the
indigenous peoples;
- all juridical acts that affect this ownership and title are nullified
and extinct, except the relevant public interest of the federal government;
- only the indigenous people can utilize and have the right to use
the assets derived from the soil, the rivers and the lakes in these
areas;
- the use of the water power resources, including energy potential,
research, assays and mining claims can only be valid with the authorization
of Congress, after a hearing with the communities that are affected,
and the community is assured a participation in the results of the
mining activities on their lands’;
- new ordinary legislation (not constitutional change) is needed to
specify the conditions for mineral exploration and the use of water
resources on indigenous lands;
- the indigenous lands cannot be sold, mortgaged or encumbered in
any way and are unavailable for said activities; and the right to
these lands by the respective indigenous peoples can never expire;
- it is prohibited to remove the Indians from their lands, except
in exceptional and temporary conditions, as stipulated in § 6º
- Article 231.
In the Transitory Constitutional regulation, five years was stipulated
as the time frame for the demarcation of all the indigenous lands .
This deadline was not honored, and the demarcations are still a matter
that is still pending (see Who, where, How many> Lands> Demarcation).
Other regulations and rulings are scattered through the text of the
Constitution:
Dispersos pelos texto constitucional, outros dispositivos referem-se
aos índios:
- the responsibility to judicially defend the indigenous rights, is
included among the attributions of the Federal Prosecutors’ Office;
- legislating about indigenous peoples is the exclusive function of
the federal government;
- the act of filing suit and judging indigenous rights is the function
of the federal judges;
- the state must protect the manifestations of popular cultures, including
those of indigenous peoples.
The Constitution of 88 created the need to set up a review via ordinary
legislation and the inclusion of new themes in the juridical debate
about the indigenous communities. Beginning in1991, law bills were presented
by the executive branch of the government and by deputies to regulate
the constitutional clauses and adapt the old legislation based on the
principles of the integration of the indigenous communities in the national
community and the tutorial relationship between the government and the
indigenous groups to the terms of the new Constitution.
Thus, the legal basis in support of the most fundamental claims of
the Indians in Brazil was formulated by the new Constitution and has
been currently expanded and rearranged. However, Brazilian reality shows
that it is up to the indigenous communities and their allies to make
it possible to enforce the difficult task of making the laws complied
with, guaranteeing the respect of indigenous rights in practice, in
the face of many different economic interest that had the audacity to
ignore the existence of these rights.
To ensure that the constitution is enforced is the challenge that is
face. It is the role of the indigenous communities, as well as their
organizations, support entities, universities, the prosecutors’
office and other groups. It is well known that this is a slow process,
and is actually conditioned by the task of making society as a whole
aware of the situation. Success will necessarily depend on the degree
of commitment on a day-to-day basis on the part of everyone involved
in this effort.
All the constitutions of the republican period, except the omission
of the Constitution of 1891, recognized the Indigenous Community rights
over the territories they inhabit:
The Constitution of 1934
"Art. 129 – The possession and occupation and rights to
the land of the indigenous communities where they are permanently located
will be respected, and it is prohibited to sell or encumber their rights
to the land in any way, shape or form."
The Constitution of 1937
"Art. 154 –The possession and occupation and rights to
the land of the indigenous communities where they are permanently located
will be respected, and it is prohibited to sell or encumber their rights
to the land in any way, shape or form."
The Constitution of 1946
"Art. 216 – The possession and occupation and rights to
the land of the indigenous communities where they are permanently located
will be respected, on the condition that they do not transfer their
rights to the land."
The Constitution of 1967
"Art. 186 – The possession and occupation and rights to
the land of the indigenous communities where they are permanently located
is recognized, as well as their exclusive y rights to use the land and
the natural resources and all the utilities existing therein.”
Constitutional Amendment 1/ 1969
"Art. 198 – The lands inhabited by the indigenous communities
cannot be encumbered or transferred in the terms that the federal law
specifies, The possession and occupation and rights to the land of the
indigenous communities where they are permanently located is recognized,
as well as their exclusive rights to the utilization of the natural
resources and all the utilities existing therein.".
Carlos Frederico Marés (one of the original founders
of ISA and collaborator of the Sócio-Environmental Law Program/
ISA) studies the national constitutions of the Americas and makes comparison
among them:
Up to the decade of the 80s, with rare exceptions, the constitutions
never referred to the rights of the indigenous peoples. Some countries,
like Bolivia, with a majority of indigenous population, created a juridical
system based on ethnic differences, changing the situation only in 1994.
In this context, the Brazilian Constitution is a watershed, a benchmark.
Before it, the treatment of the constitutions was reticent, and always
referred to prior legislation, infra-constitutional legislation, even
so, it was unable to recognize the ethnic diversity and multi-cultural
nature of these peoples. On reading the Constitution of Panama (1983),
for example , one is incapable of knowing that in reality indigenous
zones were created with an alternative jurisdiction. Note the treatment
of indigenous peoples in Canada, in 1982), Ecuador (1983), Guatemala
(1985), Nicaragua (1987).
In 1988, although the Brazilian constitution did not yet have the courage
to declare the country was multi-ethnical and multi-cultural, it recognized
the diversity by means of recognizing their social organization, customs,
language, beliefs and traditions, as well as their original right—a
right that precedes the Brazilian state—to the lands they inhabit.
Once the door was open, the new constitutions of the Americas began
recognizing the social-diversity of our countries: Colombia (1991) recognizes
and protects its ethical and cultural diversity; Mexico (1992) assumes
the fact that it has a “floricultural diversity"; Paraguay
(1992), aside from recognizing the existence of indigenous peoples,
declares itself a pluricultural country, considering the other languages
as the cultural heritage of the nation; Peru (1993) doesn’t go
this far and only admits as official languages, aside from Spanish,
Quechua and Aymara, and other ‘aboriginal” languages; finally,
Bolivia (1994), with its overwhelming indigenous majority, admits to
breaking with the tradition of the silent integrationists and defines
itself as a multiethnic and pluricultural nation.
In the 1990s, as one can see, there was a significant advance in the
constitutional recognition of the indigenous peoples of the Americas.
It is hoped that in future years the reality of Latin America is similar
to the values expressed in these constitutions. (Carlos F. Marés
– 1995).
After this report was written, Venezuela (1999) also recognized specific
rights for indigenous peoples who live within its borders.
