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In Brazil constitutional principles protect archeological and prehistoric sites, and determines that all such sites, including Indian ones, belong to the Union.  A Decree-Law from 1937 protects and defines national historical and artistic heritage because of its archaeological and ethnographic value, and such heritage must be registered with the National Historical and Artistic Heritage Service to be considered as an integral part of the national historical or artistic heritage of the country. 

A federal law from 1961 determines that archaeological or prehistoric monuments of any nature existing in the national territory and all the elements that are in them are under the guard and protection of the government. This includes sites identified as cemeteries and other types of sites in which human remains of archaeological or paleo-ethnographic interest are found.

The Penal Code and an environmental law are used to punish whoever destroys, renders unusable, or damages registered material of archaeological or historical value.

Federal agencies are in charge of the preservation of the country’s cultural heritage and the protection and promotion of the rights of indigenous peoples.

I. Constitutional Principles

The Brazilian Constitution provides that archeological and prehistoric sites are the property of the Union,[1] including lands traditionally occupied by Indians.[2]

Article 215 determines that the National Government must guarantee to all the full exercise of cultural rights and access to sources of national culture, and must support and grant incentives for the appreciation and diffusion of cultural expression.[3]

The Constitution further determines that the Brazilian cultural heritage includes both material and immaterial goods, taken either individually or as a whole, that refer to the identity, action, and memory of the various groups that form Brazilian society,[4] including, inter alia, urban complexes and sites with historical, landscape, artistic, archaeological, paleontological, ecological, and scientific value.[5]  The government, with the collaboration of the community, must promote and protect Brazilian cultural heritage by inventories, registries, surveillance, monument protection decrees, expropriation, and other forms of precaution and preservation.[6]  Damages and threats to cultural heritage must be punished, as provided by law.[7]

The social organization, customs, languages, creeds, and traditions of Indians are recognized, as well as their original rights to the lands they traditionally occupy. The Union has the responsibility to delineate these lands and to protect and ensure respect for their property and culture.[8]

Lands traditionally occupied by Indians are those on which they live on a permanent basis, those used for their productive activities, those indispensable for the preservation of environmental resources necessary for their well-being, and those necessary for their physical and cultural reproduction, according to their uses, customs, and traditions.[9]

The removal of indigenous groups from their lands is prohibited except when the National Congress determines there has been a catastrophe or epidemic that places the population at risk or that removal is in the interest of national sovereignty; such groups’ immediate return as soon as the risk ceases must be guaranteed under all circumstances.[10]

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II. Legal Framework

A. Decree-Law No. 25 of November 30, 1937

1. Protection of National Historical and Artistic Heritage

Decree-Law No. 25 of November 30, 1937, provides for the protection of the national historical and artistic heritage of Brazil.  Article 1 defines “national historical and artistic heritage” as the set of movable and immovable goods (bens) existing in the country and whose conservation is of public interest, either because of its connection with memorable events in the history of Brazil or because of its exceptional archaeological, ethnographic, bibliographic, or artistic value.[11]

2. Registration

The goods referred to in article 1 of Decree-Law No. 25 will only be considered as an integral part of the national historical or artistic heritage after being registered separately or grouped in one of the four Register Books (Livros do Tombo) referred to in article 4 of the Decree-Law.[12]  Natural monuments, as well as the site of and landscapes surrounding those monuments that are important to conserve and protect by the remarkable nature with which they have been endowed by nature or organized by the human industry, are among the goods referred to in article 1.[13]

Article 4 of Decree-Law No. 25 determines that the National Historical and Artistic Heritage Service (Serviço do Patrimônio Histórico e Artístico Nacional) is to have four Register Books, in which the goods referred to in article 1 must be registered:

1) in the Archaeological, Ethnographic and Landscape Book, the items belonging to the categories of archaeological, ethnographic, Amerindian and popular art, as well as monuments, sites and landscapes;

2) in the Historical Book, things of historical interest and works of historical art;

3) in the Fine Arts Book, the things of erudite art, national or foreign;

4) in the Applied Arts Book, works included in the category of applied arts, national or foreign.[14]

Voluntary recording will be carried out whenever the owner asks for it and the goods under consideration have the necessary requirements to constitute an integral part of the national historical and artistic patrimony, in the judgment of the Advisory Council of the Service of National Historical and Artistic Patrimony, or whenever the same owner agrees in writing to the registration of the good in any of the Register Books.[15]  Compulsory registration must be carried out when the owner refuses to accept registration.[16]

3. Effects of Registration

Goods registered cannot be destroyed, demolished or mutilated, or, without prior special authorization from the National Historical and Artistic Patrimony Service, repaired, painted, or restored, under penalty of a fine of 50% of the damage done.[17]  Construction in the vicinity of a registered property that would prevent or reduce its visibility is not possible without prior authorization from the National Historical and Artistic Patrimony Service.[18]

Registered items are subject to the permanent supervision of the National Historical and Artistic Patrimony Service, which may inspect them whenever deemed appropriate, and the respective owners or responsible persons may not obstruct the inspection, under penalty of a fine, which may be doubled in the case of recidivism.[19]

B. Law No. 3,924 of July 26, 1961

1. Protection of Archaeological and Prehistoric Monuments

Law No. 3,924 of July 26, 1961, provides for the protection of archaeological and prehistoric monuments.  Article 1 determines that archaeological or prehistoric monuments of any nature existing in the national territory and all the elements that are in them are under the guard and protection of the public power.[20]  Surface property does not include archaeological or prehistoric deposits, nor the objects incorporated into them.[21]

2. Definition of Archaeological and Prehistoric Monuments

Article 2 defines “archaeological or prehistoric monuments” as:

a) deposits of any nature, origin or purpose, representing cultural evidence of the first inhabitants of Brazil (paleoameríndios), such as shell mounds (sambaquis), artificial hills (montes artificiais ou tesos), sepulchral wells, deposits (jazigos), landfills (aterrados), vestiges (estearias) and any others not specified in this article, but of identical meaning, subject to the judgment of the competent authority;

b) the sites in which there are positive traces of occupation by the first inhabitants such as grottos (grutas), caves (lapas), and shelters (abrigos) under rock;

c) sites identified as cemeteries, burials or places of prolonged landing or settlement, “stations” and “ceremonies,” in which human remains of archaeological or paleo-ethnographic interest are found;

d) rock or local inscriptions such as polishing grooves of utensils and other vestiges of activity of the first inhabitants.[22]

3. Prohibitions

The economic exploitation, destruction, or mutilation, for any purpose, of archaeological or prehistoric deposits (known as sambaquis, casqueiros, concheiros, birbigueiras, or sernambis) are prohibited, as well as of the sites, inscriptions, and objects enumerated in items b, c and d of article 2 (quoted above), before being properly researched. Previous valid concessions for such exploitation must be respected.[23]

4. Registration and Inspection

According to article 4 of Law No. 3,924, any person, natural or legal, who is undertaking, for economic or other purposes, the exploration of archaeological or prehistoric deposits, must communicate this activity to the Directorate of National Historical Heritage (Diretoria do Patrimônio Histórico Nacional) for the purpose of examination, registration, inspection, and safeguarding the interests of science.[24]  Archaeological or prehistoric deposits of any nature that are not communicated to the Directorate and registered in the form of articles 4 and 6 of Law No. 3,924, are considered, for all purposes, assets of the Union.[25]

5. Crime Against the National Patrimony

Any act that destroys or mutilates monuments referred to in article 2 must be considered a crime against the national patrimony and, as such, are punishable in accordance with the provisions of criminal laws.[26]

6. Archaeological Excavations Carried Out by Private Individuals

The right to carry out excavations for archaeological purposes on public or private lands is established by permission of the federal government, through the Directorate of National Historical and Artistic Heritage, and the owner or holder of the land.[27]

The application for permission must be addressed to the Directorate of National Historical and Artistic Patrimony, accompanied by an exact indication of the location, size, and approximate duration of the works to be performed, proof of the technical and scientific suitability of the applicant, and the name of the person responsible for carrying out the work.[28]

The permit must be issued by the Minister of Education and Culture in the form of an administrative act (portaria) establishing the conditions to be observed for the development of excavations and studies, which must be transcribed in the proper book of the Directorate of National Historical and Artistic Heritage.[29]  As long as excavations and studies are to be carried out on land that does not belong to the applicant, the written consent of the owner of the land or its user must be attached to the permission request.[30]

Excavations must be carried out under the direction of the permission holder, who is liable, under civil, criminal, and administrative law, for the damages caused to the National Patrimony or to third parties.[31]  Excavations must be carried out in accordance with the conditions stipulated in the permit, and the person responsible may not, under any circumstances, prevent the inspection of the works by an agent (delegado) specially designated by the Directorate of National Historical and Artistic Heritage, when deemed appropriate.[32] 

Paragraph 3 of article 11 of Law No. 3,924 further determines that the permission holder is obliged to report to the Directorate of National Historic and Artistic Patrimony on a quarterly basis on the progress of the excavations, except for the occurrence of an exceptional event, which must immediately be reported and appropriate measures taken.[33]

The permission may be revoked if

a) the provisions of Law No. 3,924 and the administrative act granting the permission are not met;

b) the field work is suspended for a period exceeding twelve months, unless there is a major cause, which must be duly proven;

c) in case of noncompliance with article 11, paragraph 3 [discussed above].[34]

In any of the cases listed above, the permission holder will not be entitled to compensation for expenses incurred.[35]

7. Fortuitous Discoveries

The possession and safeguarding of assets of an archaeological or prehistoric nature constitute, in principle, an inherent right of the state.[36]  The fortuitous discovery of any elements of archaeological or prehistoric, historical, artistic, or numismatic interest must immediately be communicated to the Directorate of National Historical and Artistic Patrimony or to the authorized official bodies, by the author of the find or by the owner of the property where the discovery occurred.[37]  The owner or occupant of the property where the finding was verified is responsible for the temporary conservation of the thing discovered, until pronouncement and deliberation of the National Historic and Artistic Patrimony Board.[38]  Breach of this obligation will give cause for  apprehension of the finding, without prejudice to the responsibility of the finder for the damages that he or she may cause to the national patrimony as a result of the omission.[39]

8. Shipment Abroad

No object of archaeological, prehistoric, numismatic, or artistic interest may be transferred abroad without an express license from the Directorate of National Historical and Artistic Heritage, contained in a release document in which the objects to be transferred are duly specified.[40]  Failure to comply with this provision will entail the summary apprehension of the object to be transferred, without prejudice to other legal sanctions to which the offender may be subject.[41]  The object seized must be delivered to the National Historical and Artistic Patrimony Board.[42]

9. Sanctions

The carrying out of archaeological or prehistoric excavations in violation of any of the provisions of Law No. 3,924 is punishable by a fine without prejudice to summary apprehension and consequent loss for the national patrimony of all the material and equipment existing in the place.[43]  The offenders of Law No. 3,924 are subject to the penalties of articles 163 to 167 of the Penal Code (see discussion below), without prejudice to other applicable penalties.[44]

C. Penal Code 

Article 163 of the Penal Code determines that destroying, rendering unusable, or damaging something that belongs to another is punishable with detention from one to six months or a fine.[45]  The crime is punishable with detention of six months to three years and a fine, in addition to the penalty corresponding to the violence, if committed

  • with violence to the person or a serious threat;
  • using a flammable or explosive substance, if that fact does not constitute a more serious crime;
  • against the patrimony of the Union, a state, the Federal District, a municipality, an agency, a public foundation or public company, a mixed-economy society, or a utility company; or
  • for selfish reasons or with considerable damage to the victim..[46]

Destroying, rendering unusable, or damaging something that is registered by the competent authority due to its artistic, archaeological, or historical value is punishable with detention from six months to two years and a fine.[47]  To change the aspect of a place specially protected by law without the license of the competent authority is punishable with detention from one month to one year or a fine.[48]

In the cases provided for in articles 163(IV) and 164 of the Penal Code, a criminal complaint (queixa) is required.[49]

D. Environmental Law 

Law No. 9,605 of February 12, 1998, provides for criminal and administrative sanctions derived from conduct and activities harmful to the environment.  Article 62 states that destroying, rendering useless or damaging an asset especially protected by law, administrative act, or judicial decision, or an archive, registry, museum, library, gallery, scientific installation, or similar place protected by law, administrative act, or judicial decision, is punishable with imprisonment from one to three years and a fine.[50]

Article 63 determines that to change the aspect or structure of a building or place specially protected by law, administrative act, or judicial decision, due to its landscape, ecological, tourist, artistic, historical, cultural, religious, archaeological, ethnographic, or monumental value, without authorization of the competent authority or in disagreement with a granted permit subjects the offender to imprisonment from one to three years and a fine.[51]

In addition, to promote construction on nonbuildable land or its surroundings, considered as such because of its landscape, ecological, artistic, tourist, historical, cultural, religious, archaeological, ethnographic, or monumental value, without the authorization of the competent authority or in disagreement with a granted permit is punishable with detention from six months to one year and a fine.[52]

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III. National Historic and Artistic Heritage Institute

The National Historic and Artistic Heritage Institute (Instituto do Patrimônio Histórico e Artístico Nacional, IPHAN) is a federal agency subordinated to the Ministry of Culture that is responsible for the preservation of the Brazilian cultural heritage.[53]  IPHAN is in charge of protecting and promoting the country’s cultural assets, ensuring its permanence and enjoyment for present and future generations.[54]

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IV. Indian National Foundation

The Indian National Foundation (Fundação Nacional do Indio, FUNAI) is the official indigenist organ of the country. FUNAI was created by Law No. 5,371 of December 5, 1967,[55] is subordinated to the Ministry of Justice, and is the coordinator and main executor of the federal government’s indigenous policy. Its institutional mission is to protect and promote the rights of indigenous peoples in Brazil.[56]

Indigenous policies,[57] the initiatives prepared by the different agencies of the Brazilian government regarding the indigenous populations, are guided by indigenism (indigenismo), a set of principles established from the contact of indigenous peoples with the national society.[58]

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V. Conclusions

A. Protection of Sacred Places of Indigenous People

The Brazilian legal framework discussed above does not include legislation specifically protecting sacred places of indigenous people, their graves, and artifacts belonging to native people found in the course of land use or excavations.  Instead, the legislation covers the protection of national historical and artistic heritage of the country and its archeological and prehistoric monuments as a whole.[59]  Apparently, protection of indigenous art and materials discovered in archeological excavations, including bodies, places of worship, and arts of native people would fall under the same broad concept of protection.

B. Management of Discoveries

In regard to the management of discoveries made in the course of land development and use, as stated in articles 1 and 2(c) of Law No. 3,924, archaeological or prehistoric monuments of any nature existing in the national territory and all the elements that are in them are under the guard and protection of the public power.[60]

1. Preservation Measures

The fortuitous discovery of any elements of archaeological or prehistoric, historical, artistic, or numismatic interest must immediately be communicated to the Directorate of National Historical and Artistic Patrimony or to the authorized official bodies, by the author of the find or by the owner of the property where the discovery occurred.[61]  The owner or occupant of the property where the finding was verified is responsible for the temporary conservation of the thing discovered, until deliberation of and a pronouncement by the National Historic and Artistic Patrimony Board.[62] 

2. Recognition as Cultural Patrimony

It appears that the definition of “archaeological or prehistoric monuments” contained in article 2 of Law No. 3,924 (see discussion, Part II(B), above) could be used to recognize such discoveries as objects of cultural patrimony of indigenous people.[63]

3. Finding of Native People’s Remains

The researched legislation does not specifically define or determine any specific protocol to be followed in connection with the finding of native people’s human remains and/or cultural items.  The mentioned provision, which determine that findings must be communicated to the appropriate authorities and preserved, would most likely be applicable to this situation.[64]

4. Relocation of Cemetery of Native People or Ruins of Their Temple

According to article 3 of Law No. 3,924, the economic exploitation, destruction, or mutilation, for any purpose, of archaeological or prehistoric deposits are prohibited, as well as of the sites, inscriptions, and objects enumerated in items (a), (c), and (d) of article 2 of Law No. 3,924 (see discussion, Part II(B)(2), and (3), above), before being properly researched. Previous unexpired concessions for such exploitation must be respected.[65]   

Article 3 of Law No. 3,924 implies that before a decision is made about destruction or preservation of archeological sites, research must first be undertaken.  However, the legislation is silent in regard to how to preserve such a site.

5. Legal Treatment of Sites

The legislation does not make any distinction regarding the ownership of the land where graves and artifacts are found.  The Constitution determines that archeological and prehistoric sites[66] and lands traditionally occupied by Indians[67] are the property of the Union.  Furthermore, Law No. 3,924 establishes that ownership of the site does not include archaeological or prehistoric deposits, nor the objects incorporated into them.[68]

6. Unauthorized Disturbance

It appears that the disturbance of the protected, sacred places of indigenous people would fall within the scope of article 17 of Law No. 3,924, which determines that any act that destroys or mutilates the archeological or prehistoric monuments referred to in article 2 of Law No. 3,924 (see Part II(B)(2), above) must be considered a crime against the national patrimony and, as such, is punishable in accordance with the provisions of criminal laws[69] (see Parts II(C) and (D), above).

7. National Policy

FUNAI is the coordinator and main executor of the federal government’s indigenous policy.[70]  The Constitution of 1988, recognized Indians’ rights to their social organization, customs, languages, beliefs, and traditions, and their original rights over the lands they traditionally occupy.[71]  Indians also expanded their citizenship rights and now are legitimate parties to defend their rights and interests in court.[72] Thus, the main objective of indigenous policy today is the preservation of indigenous cultures, through the guarantee of their lands and the development of educational and sanitary activities.[73]

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Prepared by Eduardo Soares
Senior Foreign Law Specialist
March 2019


[2] Id. art. 20(XI).

[3] Id. art. 215.

[4] Id. art. 216.

[5] Id. art. 216(V).

[6] Id. art. 216(§ 1).

[7] Id. art. 216(§ 4).

[8] Id. art. 231.

[9] Id. art. 231(§ 1).

[10] Id. art. 231(§ 5).

[11] Decreto-Lei No. 25, de 30 de Novemebro de 1937, art. 1, http://www.planalto.gov.br/ccivil_03/decreto-lei/Del0025.htm, archived at https://perma.cc/Q8CH-QRSQ

[12] Id. art. 1(§ 1).

[13] Id. art. 1(§ 2).

[14] Id. art. 4.

[15] Id. art. 7.

[16] Id. art. 8.

[17] Id. art. 17.

[18] Id. art. 18.

[19] Id. art. 20.

[20] Lei No. 3.924, de 26 de Julho de 1961, art. 1, http://www.planalto.gov.br/ccivil_03/leis/1950-1969/L3924. htm, archived at https://perma.cc/F3SX-AYTB

[21] Id. art. 1(sole para.).

[22] Id. art. 2.

[23] Id. art. 3.

[24] Id. art. 4.

[25] Id. art. 7. Article 6 of Law No. 3, 924 determines, inter alia, that sambaquis must take precedence for study and eventual exploitation, in accordance with the Mining Code.

[26] Id. art. 5.

[27] Id. art. 8.  Articles 13–16 of Law No. 3,924 address archeological excavations carried out by specialized scientific institutions of the Union, states, and municipalities.

[28] Id. art. 9.

[29] Id. art. 10.

[30] Id. art. 11.

[31] Id. art. 11(§ 1).

[32] Id. art. 11(§ 2).

[33] Id. art. 11(§ 3).

[34] Id. art. 12.

[35] Id. art. 12(sole para.).

[36] Id. art. 17.

[37] Id. art. 18.

[38] Id. art. 18(sole para.).

[39] Id. art. 19.

[40] Id. art. 20.

[41] Id. art. 21.

[42] Id. art. 21(sole para.).

[43] Id. art. 25.

[44] Id. art. 29.

[45] Código Penal, Decreto-Lei No. 2.848, de 7 de Dezembro de 1940, art. 163, http://www.planalto.gov.br/ ccivil_03/Decreto-Lei/Del2848compilado.htm, archived at https://perma.cc/V8NX-ZFL5.  

[46] Id. art. 163(sole para.).

[47] Id. art. 165.

[48] Id. art. 166.

[49] Id. art. 167.

[50] Lei No. 9.605, de 12 de Fevereiro de 1998, art. 62, http://www.planalto.gov.br/ccivil_03/LEIS/L9605.htm, archived at https://perma.cc/VU29-9M8K.  

[51] Id. art. 63.

[52] Id. art. 64.

[53] O Iphan, Instituto do Patrimônio Histórico e Artístico Nacional, http://portal.iphan.gov.br/pagina/ detalhes/872 (last visited Feb. 25, 2019), archived at https://perma.cc/JUP8-MHDV.   

[54] Id.

[55] Lei No. 5.371, de 5 de Dezembro de 1967, http://www.planalto.gov.br/ccivil_03/LEIS/1950-1969/ L5371.htm, archived at https://perma.cc/99TJ-ZV29.     

[56] Quem Somos, Fundação Nacional do Indio, http://www.funai.gov.br/index.php/quem-somos (last visited Feb. 25, 2019), archived at https://perma.cc/8PKG-25QF.    

[57] Política Indigenista, Fundação Nacional do Indio, http://www.funai.gov.br/index.php/nossas-acoes/ politica-indigenista (last visited Feb. 25, 2019), archived at https://perma.cc/NJQ7-ADQG.      

[58] Política Indigenista, Museu do Indio, http://www.museudoindio.gov.br/educativo/pesquisa-escolar/241-politica-indigenista (last visited Feb. 25, 2019), archived at https://perma.cc/Q854-6BW3.       

[59] See discussion above (Part II(B)) of Decree-Law No. 25 of November 30, 1937 (Part II(A)) and Law No. 3,924 of July 26, 1961.

[60] Law No. 3,924, supra note 21, arts. 1, 2(c).

[61] Id. art. 18.

[62] Id. art. 18(sole para.).

[63] Id. art. 2.

[64] Id. art. 18.

[65] Id. art. 3.

[66] C.F. art. 20(X).

[67] Id. art. 20(XI).

[68] Law No. 3,924, supra note 20, art. 1(sole para.).

[69] Id. art. 5.

[70] Quem Somos, Fundação Nacional do Indio, supra note 56.

[71] Política Indigenista, Museu do Indio, supra note 58.

[72] Id.

[73] Id.

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Last Updated: 12/30/2020