Carta da Associação Americana de Antropologia ao TRF 5a Região (caso Xukuru)
19.04.2011

Sandro Lobo

Companheiros e companheiras,

Para conhecimento de todos segue carta encaminhada pela antropóloga americana Márcia Milulak elaborada pela Associação Americana de Antropologia sobre as violações de direitos humanos no processo que envolve o cacique Marcos Xukuru. Ainda não recebi a versão em português, mas quem já puder traduzir para divulgação agradeço desde já.Seria bomprovocar a Associação Brasileira de Antropologia a também se pronunciar.

Abraços,

Sandro Lôbo

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Dear Judges of the 5th Regional Tribunal:

The Committee for Human Rights is a permanent committee of the American Anthropological Association (AAA), which is the largest professional association of anthropologists in the world. Its purpose is to stimulate informed involvement in the area of human rights among professional anthropologists, and to bring before the Association's leadership responsible information on selected, anthropologically-relevant cases of potential human rights abuse. In the context of this role, the Committee writes to request that you act promptly to ensure the safety, well-being, and fair treatment of Chief Marcos Xukuru, tribal leader of the more than 10,000 indigenous people of the Xukuru Nation in Pesqueira, Pernambuco, Brazil, the largest indigenous tribe in Northeastern Brazil (Rede Social 2003 http://www.social.org.br?relatorio2003ingles/relatorio003.htm).

On February 7, 2003, Chief Marcos Xukuru was the victim of an attempted assassination. He survived because two un-armed Xukuru youth accompanying him gave their lives to protect him. For more than two
decades, the Xukuru have been undergoing a process of demarcation of their ancestral lands through FUNAI (the National Indian Foundation).
During the slow process, non-Indian ranchers refused to leave the reserved lands, thus provoking numerous conflicts, including threats to and assassinations of Xukuru leaders and supporters (FUNI 1989; Amnesty International 2005b). Between 1996 - 2001, over three-hundred legal claims by non-Indian farmers were filed and processed; eventually, all were deemed unfounded after half-a-decade, during which time threats and invasions by non-Indian farmers increased and eventually led to murder of Chief Xicão in 1998. Most of the Xukuru land was homologated in 2001, with some portions still under legal review. However threats, intimidation, and the legal criminalization of the Xukuru continue, particularly against human rights defenders and leaders such as Chief Marcos Xukuru (Lôbo 2010; Amnesty International 2010a ).

The attack on Marcos Xukura was not an isolated incident, but rather was consistent with the pattern of abuses against the Xukuru in recent decades (Fialho 1992).

Since 1992, four deaths have been attributed to retaliation by non-Indian ranchers: Xukuru tribal member José Everaldo Rodrigues Bispo - 1992, FUNAI attorney Geraldo Rolim - 1995, Xukuru Chief Xicão - 1998, and the leader of the village Pé de Serra, Chico Quelé - 2001(Lôbo 2010
).

After the assassination of Chief Xicão on May 20, 1998, his son, Marcos Luidson, was elected as the chief of the Xukuru people. As Chief, he continued to demand that the Brazilian authorities bring to a conclusion the demarcation process and the withdrawal of non-Indian ranchers from tribal lands. Marcos Xukuru has led his people in the struggle to take back their land, bringing the Xukuru into direct conflict with the ranchers who occupy the land, a group that is now interested in exploiting the area by constructing a large religious tourism center based upon an apparition of the Virgin Mary near the village of Cimbres, on Xukuru land.

This tourism project was rejected by Chief Marcos Xukuru because it
would have a serious impact on the Xukuru's efforts to preserve their culture. Since Chief Marcos Xukuru's position conflicted with the interests of the ranchers, the ranchers actively co-opted a group of Indians to gain their support for the tourism project. Chief Marcos and his mother, Zenilda Maria de Araújo (a nominee for the Nobel Peace Prize in 2002), began to receive death threats, thus prompting the Inter-American Commission on Human Rights to order the Brazilian government (in October of 2002) to take precautionary measures to
protect both of them (Fialho 1992).

The Brazilian government did not comply with the cautionary measures ordered by the Inter-American Commission; consequently, in February of 2003, Chief Marcos Xukuru was ambushed in an assassination attempt led by José Lourival Frazão. In this incident, two Indians, Josenilson José dos Santos (Nilsinho) and Ademilson Barbosa da Silva, were killed while protecting Chief Marcos, who escaped with some injuries. The ambush and murders caused anger among tribal members, resulting in the plundering of the cars and houses of the people involved in the ambush. This violence could have been avoided if the Brazilian government had provided the necessary security to the area.

While attacks against the Xukuru by the non-Indian ranchers are not new, this incident marks the beginning of the process of criminalization of the Xukuru involved in the demarcation process. Since 2003, over 35 criminal charges have been pressed against Xukuru leaders and against Chief Marcos Xukuru (Amnesty International 2005c). The accusations against them are based on their status as leaders, under the false assumption that as leaders, they must have ordered the revolt. The cases involve mere speculation, since the evidence presented does not demonstrate the individual responsibility of each accused leader for specific actions. This alone represents a violation of their legal rights.

Despite serious irregularities in the legal proceedings, on May 22, 2009, Chief Marcos was found guilty and sentenced to ten years and four months in prison, along with a fine, by the Federal Court in Caruaru, Pernambuco. (Case number 2006.83.02.000366-5).

The irregularities in the legal proceedings took place in three
principal aspects of the process:

* the failure to allow Chief Marcos to exercise his right to use all
legal means to defend himself

* the noticeable presupposition of guilt

* the refusal to consider the context pre-existing conflicts between Indians and non-Indian ranchers over Xukuru ancestral land In a clear restriction on the right to use all legal means to defend himself, the court declined to hear important witnesses for the defense, including Federal Deputy Fernando Ferro (Workers Party/Pernambuco) and Assistant Head Federal Prosecutor (Subprocuradora Geral da Republica), Raquel Dodge. The exclusion of defense witnesses is a clear violation of guaranteed legal rights. Further, considering that the testimony offered by each witness has the potential to influence the judges' understanding of the events in question, excluding witnesses facilitates a potentially faulty presentation of the facts.

The presupposition of Chief Marcos Xukuru's guilt based on his position as a tribal leader is a further violation of his rights. The Chief was a victim in an ambush. He was taken to the hospital and remained at his mother's house on the day of the uprising. However, despite being unaware of the revolt and absent at the place and time that it transpired, the Chief was considered the responsible party in the acts of destruction. His conviction was based on a conflation of his tribal leadership role with a supposed command over the incidents following his attempted assassination.

Finally, it should be noted that the proceedings completely ignored the underlying land rights conflicts between the Xukuru and non-Indian ranchers. Having considered the ambush of the Chief a mere isolated, contingent occurrence with its true motives obscured, the court interpreted the Xukuru tribe's reaction as a disturbance lacking motive, and as an act of unjustified hate that arose spontaneously. The failure to consider any political context is one more example of a complete abdication of responsibility by the relevant authorities in the face of serious conflicts in the region.

These developments indicate a broad context of violations of international norms, including the provisions of the Declaration on the Rights of Indigenous Peoples, as well as the Universal Declaration of Human Rights (1948), the International Covenant on Civil and Political Rights (UNHR 1976), the Convention for the Elimination of All Forms of Racial Discrimination (UNHR 1969), the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms (UNGA 1999), and the International Labor Organization Convention on Indigenous and Tribal Peoples (Convention 169) (UNHR 1989).

According to the Declaration on the Rights of Indigenous Peoples (DRIP) (PCOAS 2006): "Indigenous peoples and individuals are free and equal to all other peoples and individuals, and have the right to be free from any kind of discrimination in the exercise of their rights, in particular that based on their indigenous origin or identity." (Art.2).
Brazil has been an active participant of the UN system since its admission in 1945, and is also a state party to other important international human rights instruments that include ratification of the
United Nations Declaration of Human Rights. While the DRIP is a United Nations General Assembly declaration, it is not a legally binding instrument under international law. Brazil is not on the list of five countries with criticisms against the DRIP (Australia, New Zealand, Canada, the United States, and Great Britain), and to-date has agreed on points of consensus in this document (PCOAS 2006).

It is in this sense that Article 40 of the same Declaration guarantees:
"Indigenous peoples have the right to access to prompt decision through just and fair procedures for the resolution of conflicts and disputes with States or other parties, as well as to effective remedies for all infringements of their individual and collective rights. Such a decision shall give due consideration to the customs, traditions, rules and legal systems of the indigenous peoples concerned and international human rights."

Clearly, this case must not be isolated from the context of insecurity
and unjustified delays in the process of demarcation of the indigenous lands and effective transfer of traditional territory to indigenous communities. Accordingly, Article 27 affirms: "ONU States shall establish and implement, in conjunction with indigenous peoples concerned, a fair, independent, impartial, open and transparent process, giving due recognition to indigenous peoples' laws, traditions, customs and land tenure systems, to recognize and adjudicate the rights of indigenous peoples pertaining to their lands, territories and resources, including those which were traditionally owned or otherwise occupied or used. Indigenous peoples shall have the right to participate in this
process."

In light of these violations of the rights of the Xukuru people, we request the following from the 5th Regional Tribunal in Recife, Pernambuco:

* The protection of the fundamental rights of Chief Marcos Xukuru and other tribal leaders

* Fair procedural treatment of indigenous people, based on respect for due process impartiality, and sensitivity to the specific cultural and political context of indigenous communities

* An end to the criminalization of human rights defenders, particularly members of indigenous communities who fight for their right to tribal lands and preservation of their culture

* An impartial, timely, and proper legal and judicial investigation into
the important evidence discussed in this letter related to the murders
and attempted assassination of Chief Marcos Xukuru that has not been allowed as evidence by the defense.

* If appropriate after impartial and fair review of this evidence, the reversal of the current conventions levied against the Chief and other indigenous Xukuru leaders.

Respectfully,

The Committee for Human Rights of the American Anthropological
Association

 
 

 

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