Human Rights in Cross-Cultural Perspectives: A Quest for Consensus

11. Custom Is Not a Thing, It Is a Path: Reflections on the Brazilian Indian Case

For five hundred years, from the very beginning, Indian rights have been considered in Hispanic and Portuguese legal thought both as collective rights and as individual human rights. Two broad questions were considered : the first was whether Indians had any collective titles to their lands; the second was whether or under what conditions Indians would be subject to enslavement. The question of customary law also arose, since discussions went along on the topic of the right of the Indians to remain heathen, to retain polygamy, and even to practicecannibalism. The issue of enslavement is now forgone, yet what is callednowadays "the right to difference" is very much alive. Such rights, as well as rights to land and to its natural resources, constitute the core of Indian rights discussion in Brazil. It has been claimed by native Brazilian leaders that both issues arc fundamental human rights, a status that entails a collective as well as an individual dimension to these rights. This position is consistent with sociological thought, at least since Emilc Durkheim: the concept of the individual is historically Western; it gained hegemony around the eighteenth century and was enshrined two hundred years ago by the French Revolution. Yet such an equality of individuals is a highly abstract idea. No concrete individual can be thought of outside his or her context, which encompasses modes of perceiving the world, social values, and institutions, since to be human is also to have what is commonly called culture. Hence, in order to ensure the protection of fundamental individual rights, one must also protect its social conditions . And therefore, equality in rights as is claimed by Article i of the Universal Declaration of Human Rights of 1948 rates recognition not only for individuals but for societies as a whole. Clearly, land rights stand foremost among the preconditions of social life in the case of indigenous societies. There have been gross violations of Manmla Carneiro da Cunha n. Custom Is Not a Thing, It Is a Path Reflections on the Brazilian Indian Case Reflections on the BrazilianIndian Case 277 rights in that connection in Brazil, for which the state must bear a heavy responsibility.1 The Indian Issue Today To understand the situation, at least a sketchy idea is needed of the actors involved in Indian issues in Brazil. These could be grouped asfollows: ). A heterogeneous state, which includes national and local government , the Congress, the judiciary, the public ministry, and, last but not least, the military, with specific and transient alliances in each of its subdomains. 2. Local and national organizations of Indians (UNI). :;. Other nongovernmental organizations or NGOs, both national and international, such as Indian, ecological, and general human rights support groups, as well as Brazilian professional associations of lawyers, geologists, anthropologists, scientists, journalists , and the Catholic church (sometimes, as recently, acting in cooperative efforts). 4. Local elites, national and international capital, lumber magnates, gold prospectors, mining companies, their workforce and possibly their own NGOs or trade unions. 5. International loci of power (moral or pecuniary) such as the Organization of American States (OAS), the United Nations, and above all, multilateralbanks. Although I have listed certain types of actors together, there is a great amount of heterogeneity in every one of these categories, which means they cannot be expected to act in any uniform or corporate way.The congress , the Public Ministry, and the judiciary (as their roles mandate) have challenged the executive branch, as will be seen in the exampleof theYanomami case discussed below. Local elites and national and international capital may clash internally (for example, mining companies consistently try to dislodge gold prospectors, but they might encourage these same prospectors to break into Indian land). Grassroot movements and national organizations may occasionally be at odds regarding strategies and goals, not to mention competition among the NGOs in general. An understanding of the role of the federal government and the im- 278 Manucla Carneiro da Cunha plcmcntation of military policies is crucial to understanding what goes on in the Amazon, where most of the Indian population is concentrated. Since at least the early seventies, the federal government was active in providing the region with an infrastructure that includes highways, hydroelectrics , and a railroad with a seaport at its terminal. It has also been engaged in establishing programs of "colonization" and providing fiscal incentives to investors, particularlyfor cattle-raising. The general plan was to utilize the energy and mineral resources of...