21.
According to the State, the administrative demarcation
proceeding begun in 1989 has moved forward satisfactorily and within a
reasonable time. The State says the process of demarcation of
indigenous lands includes several steps: a) identification and drawing of
boundaries; b) physical demarcation; c) ratification by presidential
decree; and d) registration of indigenous land, as provided in Decree no.
1.775 of January 8, 1996, and the Statute of the Indigenous. Further,
the State submits the demarcation process is therefore complex,
especially concerning non-indigenous occupants, their compensation,
and their removal, according to Article 4 of that decree.
22. The State informs that the demarcation process of the Xucuru
indigenous land began in 1989, through the identification and drawing of
boundaries of the territory by the technical group established by the
FUNAI decision (Portaria) no. 218/FUNAI/89. Subsequently, the Xucuru
indigenous people’s right to their land was recognized by a decision of
the Ministry of Justice (Portaria) no. 259/MJ/92, of May 28, 1992. The
State indicates that the physical demarcation of 27,555 hectares was
done in 1995.
23. The State adds that in 1996, after the issuance of Decree no.
1.775, and specifically on the basis of its Article 2, section 8, occupants
of indigenous lands were given the right to impugn the demarcation
process. According to the State, there were 269 challenges filed by
interested third parties for the Xucuru indigenous land, all of which were
rejected by the Ministry of Justice by the administrative decision
(Despacho) no. 32 of July 10, 1996. Later, according to the State, the
ministerial decision was ratified by presidential decree of April 30, 2001,
which confirmed the demarcation of the Xucuru indigenous land with an
area of 27,555.0583 hectares. Immediately following that ratification,
says the State, FUNAI tried to register the Xucuru indigenous land, but
could not do so because of the objection motion (Ação de suscitação de
dúvidas) filed by the land registry officer of Pesqueira in the state
courts.
24. Since this is an indigenous question, hence in the federal
jurisdiction, the State points out that the appropriate federal organs –
FUNAI and the Union Attorney General (“AGU”) – filed a motion to
challenge jurisdiction, and succeeded in transferring the case to the
federal courts in a decision issued on August 9, 2002. According to the
State, that case has proceeded normally before the federal judge, and
the case is in the judge’s hands for decision since July 17, 2003,
according to the State’s response of February 20, 2004.
8