La proposta di emendamento costituzionale numero 215 intende cambiare il modo in cui si decidono i confini dei territori appartenenti agli indigeni, assoggettando la decisione all’approvazione politica. La legge avrebbe dovuto essere votata il sedici dicembre, ma il voto è stato cancellato a causa delle proteste degli indiani. Attualmente, l’articolo 231 della costituzione brasiliana stabilisce che “le organizzazioni sociali indiane, gli usi, gli idiomi, il credo, le tradizioni e i diritti originali sulle terre da loro occupate sono riconosciuti, ed è competenza del governo federale la demarcazione, la protezione e il rispetto di dette proprietà.” Il primo paragrafo dell’articolo definisce i territori in questione:

[Q]uelli abitati in permanenza dalle popolazioni indiane, quelli utilizzati da loro per le loro attività produttive, quelli che sono indispensabili per la conservazione delle risorse ambientali necessarie al loro benessere e quelli necessari alla loro riproduzione fisica e culturale, secondo i loro usi, i costumi e le tradizioni.

Dunque il governo federale avrebbe il compito di decidere i confini dei territori delle popolazioni indigene. Quando parliamo di governo federale, ovviamente, intendiamo l’esecutivo tramite organismi come il Funai (la Fondazione per la Nazione Indiana). Nel suo sito si possono trovare elencati i passi necessari alla demarcazione dei territori.

Nessuno di questi passi è essenzialmente politico. Sono usati criteri tecnici e antropologici per riconoscere un preesistente diritto al possesso permanente. Lo stesso processo usato per regolarizzare la proprietà di qualunque cittadino, nelle aree urbane o rurali, quando il possesso esiste ma non è documentato. Per quanto riguarda le popolazioni indigene, il processo è diverso per ragioni etnografiche: la proprietà è regolata da usi e costumi specifici. Ma per lo più si applicano le stesse regole in entrambi i casi.

La procedura è amministrativa e dovrebbe verificare il reale possesso della terra e la sua legittimità. Se il possesso non è legittimo, entrano in gioco i tribunali. La questione, comunque, è legale, non politica.

La proposta di emendamento numero 215, se approvata, cambierebbe lo scenario, dando al Congresso brasiliano il diritto esclusivo di approvare le demarcazioni territoriali e di ratificare quelle esistenti. Basterebbe una semplice maggioranza, soggetta ad intrighi e coalizioni ad hoc, per rallentare il processo di demarcazione delle terre, rendendo la situazione degli indiani ancora più insopportabile.

Cosa potrebbe accadere alle comunità Munduruku che vivono lungo il fiume Tapajos, dove il governo vuole costruire delle dighe e inondare l’intera regione? Non occorre aspettare per saperlo: Vedendo che il governo non riconosceva i loro diritti tradizionali, ma allo stesso tempo procedeva con efficienza impressionante a portare avanti il progetto delle dighe, i Munduruku della comunità Sawre Muybu hanno demarcato i confini dei territori da sé e ora si trovano a combattere una battaglia legale contro il governo brasiliano (potete donare per la causa su Indiegogo).

I diritti comuni alla terra sono molto fragili nell’attuale regime e, se lasciate ai politici, le cose peggioreranno ancora.

Si tratta di una violazione dei diritti delle comunità indiane, un regresso. Il cambiamento dovrebbe rafforzare i loro diritti, non indebolirli. I loro territori non dovrebbero essere proprietà del governo brasiliano. Le terre dovrebbero diventare proprietà comune degli indiani per “usucapione”, come già avviene nelle comunità Quilombola (discendenti dagli schiavi fuggitivi).

Cambiamento significa espellere lo stato dai territori indiani. L’emendamento numero 215 è stato scritto con l’intenzione di distruggere i diritti degli indigeni sui loro territori. L’intenzione è di infilare lo stato ancora di più nella vita degli indiani. Per questo dev’essere rigettato.

Traduzione di Enrico Sanna.

The Proposal of Constitutional Amendment (PEC) 215 — which was supposed to be voted on December 16 until the vote was canceled due to protests by Indians — is intended to change the land demarcation regime of indigenous lands, which will depend upon politicians’ approval. Currently, Article 231 of the Brazilian Constitution states that “Indians’ social organization, customs, languages, beliefs, traditions, and originary rights over lands they occupy are recognized, and it competes to the federal government the demarcation, protection and respect to said possessions.” The first paragraph of the article defines which are those lands:

“[T]hose inhabited by Indian peoples in a permanent capacity, those used by them for their productive activities, those which are indispensable to the preservation of environmental resources required by their welfare and those necessary to their physical and cultural reproduction, according to their uses, customs, and traditions.”

Thus, the federal government is supposed to stipulate the boundaries of indigenous lands. When we speak of the federal government, of course, we mean the executive branch, via organs such as FUNAI (the National Indian Foundation). The several steps undertaken by the demarcation process can be found on their website.

None of them are essentially political. Technical and anthropological criteria are used to recognize a preexisting right to permanent possession, the same way that the regularization of the property of any citizen, in rural or urban areas, uses some criteria to register existing but undocumented properties. The process for indigenous peoples is different because of an ethnographic matter: their possession regime is different, regulated by specific uses and customs. But mostly the same rules apply in both cases.

The procedure is an administrative one and is supposed to verify whether there is actual possession over the land and whether it is legitimate. If it is not considered legitimate, the courts step in. The discussion, however, becomes legal, not political.

PEC 215 would change that scenario, giving the Brazilian Congress the exclusive right to approve demarcations and ratify the existing ones. With a sufficient majority, subjected to intrigue and ad hoc coalitions, land demarcations in Brazil can be slowed to a crawl, making the Indians’ situations even more unbearable than they are.

In that case, what could happen to the Munduruku communities that live along the Tapajos river, where the government intends to build several dams that will flood the entire region? They did not wait to find out: Seeing the government’s negligence in recognizing their traditional rights and its impressive efficiency in the hydroelectric project, the Mundurukus from the Sawre Muybu community established the limits of their lands themselves and now got themselves into a legal battle against the Brazilian government (incidentally, you can donate for their cause on Indiegogo).

The common rights to the land are extremely fragile in the current regime and would become even worse if it is up to the politicians.

And it is both a violation of the indigenous communities’ rights and a regression. Change should strengthen their rights, not make them even flimsier. Their lands should not be property of the Brazilian government anymore. The land, with “usufruct” by the Indians, should become common property, as is already the case in the Quilombola (fugitive slaves descendants) communities.

Change is expelling the state out of the Indian lands. PEC 215 intends to smash indigenous rights to the land. It intends to make the state ever more present in the lives of Indians. It should be rejected.

Translated into English by Erick Vasconcelos.

Translations for this article:

• Italian, Contro lo Stato, a Favore delle Terre Indigene

1. Tom Bethell, “How Private Property Saved the Pilgrims”, the Hoover Institution’s Hoover Digest
2. Jerry Bowyer, “Lessons From A Capitalist Thanksgiving”, Forbes
3. Meredith Bragg and Nick Gillespie, “The Pilgrims and Property Rights”, Reason
4. Jim Cox, “Celebrating Individualist Private Property—Based Production Day”, the Ludwig von Mises Insitute’s LewRockwell.com
5. Thomas J. DiLorenzo, “Giving Thanks for Private Property”, LewRockwell.com
6. Richard Ebeling, Thanksgiving: Celebrating the Birth of Free Enterprise in America”, Epic Times
7. Gary M. Galles, “Property and the First Thanksgiving”, the Ludwig von Mises Insitute’s Mises Daily
8. Anthony Gregory, “Giving Thanks to the Market”, the Independent Institute’s The Beacon
9. Daniel Griswold, “How Capitalism Saved the Pilgrims”, the Cato Institute’s Cato at Liberty
10. Henry Hazlitt, “Private Enterprise Regained” (PDF), the Foundation for Economic Education’s The Freeman (In his editorial comments to the 2004 issue, C4SS’s own Sheldon Richman concurred.)
11. Kathryn Hickok. “What Governor Bradford Learned at Plymouth’s First Thanksgiving”, Cascade Policy Institute
12. Aloysius Hogan , “Thanksgiving and Markets“, Competitive Enterprise Institute
13. Jacob G. Hornberger, “Thanksgiving, Socialism, and the Free Market”, LewRockwell.com
14. Richard J. Maybury, “The Great Thanksgiving Hoax”, Mises Daily
15. Benjamin W. Powell, “The Pilgrims’ Real Thanksgiving Lesson”, the Independent Institute
16. Sartell Prentice, Jr., “Our First Thanksgiving”, The Freeman (and summarized succinctly in an official tweet)
17. Howard Rich, “A Thanksgiving Lesson”, Americans for Limited Government’s NetRightDaily
18. Murray N. Rothbard, “What Really Happened at Plymouth”, Mises Daily, excerpted from Rothbard’s book Conceived In Liberty
19. Byron Schlomach, “Giving Thanks for Lessons Learned”, Goldwater Institute
20. Paul Schmidt, “The Real Story Behind Thanksgiving”, the Advocates for Self-Government’s The Liberator Online
21. John Stossel, “The Tragedy of the Commons” (2007), “Happy Starvation Day” (2010), “Thankful for Property” (2013) and “Thanks, Property Rights!” (2014), Creators Syndicate
22. Alex Tabarrok, “A Thanksgiving Lesson”, Marginal Revolution
23. Kim Weissman, “The Plymouth Experiment”, Congress Action
24. “The Real Thanksgiving Story”, webpage with unidentified author on the website of the Foundation for Economic Education (as well as a prominent section in founder Leonard Read’s famous speech “The Essence of Americanism”).

It should be noted that some of the pieces, unlike the one analyzed in the linked C4SS piece, do mention that Plymouth’s economics were imposed by it being a corporation, but none draw a parallel to the modern corporation’s not escaping the same problems. (Prentice’s remark that “Each time I produce less, in my work, than enough to earn a profit for my employer, I am stealing from someone else” gets it even more backward.)

Compare with the take on Plymouth of single-taxers like Fred Foldvary. The elision of the otherwise eagerly-cited account by William Bradford’s noting that his assigning colonists private land was “only for present use (but made no devission for inheritance)” has long been one of their points of contention with the mainstream libertarian movement.

C4SS trustee and senior fellow Gary Chartier is a Professor of Law and Business Ethics, and Associate Dean of the School of Business, at La Sierra University. He is the author of Economic Justice and Natural Law (Cambridge University Press 2009), The Analogy of Love (Imprint Academic 20007), The Conscience of an Anarchist and Anarchy and Legal Order (Cambridge 2012), as well as articles in journals including the Oxford Journal of Legal Studies, Legal Theory, Religious Studies, and the Journal of Social Philosophy. He holds a PhD from the University of Cambridge and a JD from the University of California at Los Angeles.

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Forgive the digression to my 90s Nickelodeon childhood, but in illustration I am reminded of an episode of Angry Beavers in which the brothers suddenly discover that they each have a musk pouch capable of marking items with a colored personal stench that repels everyone but themselves. This quickly sets off a war of personal claim until the entire world is divvied up with one stench or the other, each brother more and more completely obsessed with the tally until they can think of nothing else.

This is perhaps the most classic criticism of capitalism — one of simple psychology — and yet it seems to be a critique market theorists are incapable of parsing. To many an anti-capitalist the problem with the capitalist framework is its inherent bent towards materialism, ultimately to the point of treating human beings as objects. But this is incomprehensible for Libertarians because they see respect for property titles as entirely stemming from a respect for personal agency. In practical, everyday terms respect for another person’s agency often comes down to a respect for the inviolability of their body. Do not shoot them, do not rape them, do not torture them. Because humans are tool using creatures like hermit crabs there is often no clear line between our biomass and our possessions (we use clothes instead of fur, retain dead mass excreted as hair follicles, etc.), and so a respect for another’s person seems to extend in some ways to a respect for things that they use. Begin to talk of Rights and these associations must be drawn more absolutely. And sure enough we already have a common sense proscription often enforced in absolutist terms that matches this intuition; do not steal.

Yet the anti-capitalists are clearly on to something. Even setting aside the evolutionary cognitive biases of homo sapiens, we as individuals have limited processing. We can’t think everything at the same time. If some of the thought processes necessary to succeed and flourish under in a given system run out of control and take up more and more space, others — like those behind why we adopted that system in the first place — will get pushed to the periphery.

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Free and open movement is the natural, unconditional right of every single individual, a prerogative that precedes governments and their arbitrary borders and policies. Confronted with this fact, even some self-styled libertarians will cavil and complain, puling that open borders actually amount to “forced integration,” that a free society is in fact one of exclusion and static populations disallowed from free movement simply by facts of “private property.”

And of course these facts and the relationships they implicate are never to be called into question. Never are we to ask what kinds of results and patterns legitimate property rights, properly based on some notion of homesteading, would create if actually developed and held to. Given the limits on the circumstances under which such forms of private property would be regarded as legitimate in a hypothetical freed market, it strains credulity to think that the fear-mongering of anti-immigration “libertarians” is well-founded.

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The “anarchism” comes from the insight that a society of strict nonaggression is ipso facto incompatible with the existence of the state. Since the state, both in theory and practice, is defined in terms of aggression against innocents, a truly free society cannot endure such an institution. Where, though, does immigration fit into all this theoretical ideation?

Free and open movement is the natural, unconditional right of every single individual, a prerogative that precedes governments and their arbitrary borders and policies. Confronted with this fact, even some self-styled libertarians will cavil and complain, puling that open borders actually amount to “forced integration,” that a free society is in fact one of exclusion and static populations disallowed from free movement simply by facts of “private property.”

And of course these facts and the relationships they implicate are never to be called into question. Never are we to ask what kinds of results and patterns legitimate property rights, properly based on some notion of homesteading, would create if actually developed and held to. Given the limits on the circumstances under which such forms of private property would be regarded as legitimate in a hypothetical freed market, it strains credulity to think that the fear-mongering of anti-immigration “libertarians” is well-founded.

Furthermore, arguments that see open borders as “forced integration” are especially spurious and unconvincing within the context we’re presented today, where governments themselves own and administer most of the land and the rest has been doled out to political favorites under a process in which proper homesteading has never been a real or important consideration. In their essence, anti-immigration arguments come to the laughable contention that merely due to accidents of birth which place some lucky group in one favored locale and others somewhere else, the fortunate group ought to be able to control and impede the movement of others.

We must therefore ask how and on what basis? Stripped of intricate apologies for the status quo, the answers presented are simply, “using force, deadly if necessary” and “because sovereign states have the right to protect their borders.” But even if we grant the premise that the United States ought to be able to protect its borders — itself an enormously controversial one which, as anarchist, I challenge — we must then wonder: Protect them from what? As economist Bryan Caplan observes, leaving out the moral questions implicated by the immigration debate, “even a random illiterate peasant” represents an economic benefit to his new country.

“Immigration laws,” Caplan shows, “trap people in countries where workers produce far below their potential.” When allowed the opportunity to work and produce to their potential, immigrants fill important economic needs and increase the overall wealth in society.

In terms of both basic economic and humanitarian considerations, completely free immigration and open borders are the soundest way forward for the United States and the whole world. Arbitrary, aggressive restrictions on people’s movement trample individual rights, divide families, and hurt the economy. It’s time to end the global apartheid of invented national boundaries and embrace the market anarchist solution of free movement, free exchange and free people.

After the modifications, Article 243 of the Constitution reads as follows: “Rural and urban property anywhere in the country where psychotropic had been cultivated or where slave labor was exploited, as described by law, will be expropriated and destined to agrarian reform and popular housing projects, without any compensation to the owner and without prejudice of other lawful sanctions.”

This is quite interesting for libertarians. First, a person who enslaves another one in their land can be legitimately expropriated. For a libertarian, unowned land becomes property through occupation and labor. If you’re forced to continue to work on land you’ve already used or if you’re taken to another location and obligated to work, the plot of land you worked is legitimately yours, not your captor’s.

Even if the slaver were the legitimate owner previously, his violation of your rights in forcing you to work the land make his property rights void. Hence, expropriation of slavers in favor of the enslaved is fair and just.

However, there are two significant risks in applying this principle: 1) Expropriation does not benefit the victims and increases state control over land; 2) The definition of slave labor is problematic.

It’s worrying that the expropriation of land in the project isn’t as reparations for violation of someone’s rights, but a policy of expropriation for the supposed common interest in agrarian reform or popular housing. Even if people formerly enslaved should be prioritized, this doesn’t change the fact that this policy does not acknowledge the rights of the victim in the crime. In practice, it would impair the victims’ rights to use their rightful land as they see fit, because government regulates agrarian reform and popular housing projects according to its own priorities.

The new law may come to strengthen the obsessive control the Brazilian state exercises over access to land by poor people, supposedly to protect the interests of a generic class of people who need rural land or housing, not the real victims of slavery.

Moreover, it is the very control by the state over the access to land that has created a whole contingent of people who are in dire need of agrarian reform or popular housing. The first measure the (then Portuguese) state when it occupied Brazil was dividing it up in hereditary captaincies and creating the latifúndio. The practice of grilagem* only came to be in the Amazon due to the vulnerability of property rights in the countryside, that privileged artificial property titles (that is, not based on occupation and use). At its peak, the system made it possible for “Carlos Medeiros,” a person who has never existed, to own 1.5% of the national territory – land equivalent to the territories of Portugal and Belgium combined.

Meanwhile, poor people’s properties remain “irregular” in the country – especially lands owned by indigenous peoples and quilombolas – a factor that has contributed to their exclusion and social vulnerability.

The constitutional guarantee of expropriation with due compensation is very little, being a system prone to manipulations and that serves to a “model of urban development that evicts the poor from the city centers and pushes the value of their labor even lower,” as the World Cup has made clear.

On the subject of expropriation without compensation, since 1988 until the passing of this amendment, there was only one case where that could happen: When the land was used to cultivate psychotropic drugs. Government wants to discourage internal production (thereby protecting the drug dealers cartel that control the imports of several illegal drugs) to sustain its failed drug war, which has not only made Brazilian countries world champions in murder rates, but also kills disabled children, by denying them access even to medical marijuana. Your civil disobedience in cultivating marijuana that could help children could make your property title void without compensation.

Besides all these problems, there’s also the issue of the problematic definition of slave labor in our legislation, which does not equal “forced labor.” Our Penal Code criminalizes the “reduction to condition analogous to slavery,” which can comprise one of these cases: 1) Subjection to forced labor; 2) Debt serfdom; 3) Exhausting labor hours; 4) Poor work conditions.

The two first are clearly valid. But the latter two are not. Poor work conditions, while in some cases derived from severe fraud in labor contracts, are not forced labor.

The expansion of the concept of “conditions analogous to slavery” means that it is government that is going to dictate what those conditions are and cheapen the definition of slavery. Being outside a few state labor regulations would be enough to prosecute someone, without investigation about local customs, the willingness of the workers, and the specifics of the situation.

This legal insecurity also motivated the addition of the term “as described by law” in the amendment, so that the norm will depend upon further regulation about what it means to exploit slave labor.

Thus, while we should be happy that a libertarian principle has been added to the Brazilian Constitution, there are legitimate concerns about its application. For, instead of making expropriation a reparation to victims of slavery, the state has transformed it into a policy of control of the land.

*Grilagem is the practice of counterfeiting property titles to establish fake customary rights to government or other people’s lands. Those who carry it out are called “grileiros.” The term comes from the use of crickets to make paper documents appear older than they are.

Translated from Portuguese into English by Erick Vasconcelos.

It’s a shame that Mezzomo isn’t willing to call what he defends by what it is: The violent expropriation of the favelas’ inhabitants of their legitimate property. Favelas are “irregular” only by a judicial formality. Outside a few efforts of urban regularization, favelados are still considered invaders and criminals almost by definition, although they homesteaded previously unowned and unused land.

That should explain why Mezzomo isn’t so anxious to leave his own house and go live in a favela, even though their dwellers are “superior citizens”: The truth is that there’s no privilege for those who live in the favelas. They are considered second class citizens, unworthy of basic guarantees, excluded from property rights and deprived of individual liberties.

Favela dwellers live with daily oppression by the police, with constant danger brought by drug dealers, with the threat of eviction (be it for “safety” reasons, against floods, for instance, or for urbanity reasons), with unhealthful environments (from trash and sewage), and with overall poor services. Living in favelas is clearly not the dream described by Mezzomo. Favelas don’t pay land tax, but I’m willing to bet few favelados consider the benefit worth the cost.

It’s symptomatic that Mezzomo mentioned the Tijuca neighborhood as an example of “devaluing” after the growth of favelas. Tijuca had been an upscale area, that decayed with the arrival of the favelas and, presumably, of the unwanted. The problem is that favelas, as irregular developments, are not a result of urban freedom, but rather the cruel consequence of years and years of violent intervention, urban zoning and the ban on the occupation of perfectly viable land.

The attempt to expropriate the poor who live in the favelas adds insult to injury, and is especially criminal because it removes citizens from the urban centers, where there are economic opportunities, and dislocates them to the periphery, far from the eyes and sensibilities of the rich.

For Mezzomo, “removals” are a taboo subject in Rio’s and Brazil’s politics. Complete lie. Removals are sanctioned and practiced as a consistent state policy, supported by the middle class. Evictions from the favelas are the modern enclosures.

In Rio, over 20,000 families have been evicted since 2009. It’s estimated that 250,000 people will be removed in preparations for the World Cup, though there are no precise data.

Minha Casa, Minha Vida program (“My House, My Life”), by the federal government, works diligently to enrich real estate developers and send the poor off to the urban outskirts.

I know I won’t convince the middle class or the rich with the above arguments, so I came up with a proposal that should make everyone happy: Let’s remove the rich and the middle class from the noble neighborhoods, put them on the periphery and give the poor their old houses and apartments in Leblon, Ipanema, and Copacabana. How about that?