Throughout the nineteenth century, despite official attention to scholarship in general, and the foundation of the Historical and Geographical Institute, there was no law regarding archaeological remains in Brazil. Museum officials as well as amateurs and others often collected and registered archaeological artifacts at will. Nevertheless, and despite a lack of early protection, Brazilian identity has been linked to archaeological heritage since the nineteenth century (notwithstanding a brief eclipse at the beginning of the twentieth century). Romantic nationalism was grounded on the idealization of natives, and archaeology played a role.
Archaeological resources in Brazil have been the subject of several legislative efforts, the first of them in 1920, when the Brazilian Society for the Fine Arts, or “Sociedade Brasileira de Belas Artes,” through its president, Bruno Lobo, asked the keeper of the classical antiquities of the National Museum, Alberto Childe, to prepare a bill for the protection of the national artistic heritage. Childe’s proposal was mostly concerned with archaeological sites and defended the nationalization of these cultural resources. The bill proposed that “archaeological remains, buildings, sites, caves, cemeteries, shell middens are considered national assets and are to be owned only by each state of the Union.” The proposal was not taken into consideration by the Congress, dominated as it was by representatives not interested in nationalization of private property, even if it was aimed at preserving archaeological resources.
Handbook of South American Archaeology, edited by Helaine Silverman and William H. Isbell.
Springer, New York, 2008
In 1923 another proposal was put forth, this time by the representative from Pernambuco, Luiz Cedro. During Congressional debates Cedro referred to archaeological remains and their importance for building the historical identity of the nation.
In 1925 another bill was drafted, but this time prehistoric remains were considered worthy of attention only when they constituted art.
Only in 1930 was a bill (Bill 230) proposed (by the representative Jose Wanderly de Araujo Pinto) that was explicit about the protection of archaeological resources. But it was never to be approved.
Outside the parliament discussions continued, despite the lack of proper laws regarding archaeological resources. In 1935 Raimundo Lopes published a comprehensive and innovative study on cultural resources. Among his progressive suggestions were the following: to keep cultural monuments in their original shape; to reconstruct the original natural and cultural environment; to forbid the economic exploitation of shell middens; to set up educational programs; to register Native cemeteries; to preserve sites and Indians alike; to co-operate with religious authorities on Church heritage; to disseminate information about the archaeological sites.
In 1936 a bill was prepared by the leading intellectual, Mario de Andrade from the State of Sao Paulo, which sought to protect archaeological and ethnological resources, which were split into four categories: artifacts, monuments, landscapes, and folklore. The Bill, 511/36, was being discussed in the Congress in November 1937 when a coup d’etat took place. Shortly afterwards, still in November, President Getulio Vargas, now dictator, published the bill as a decree, “decreto-lei n. 25/37”, dated 30 November 1937. Indeed, President Vargas strongly supported the bill through his Minister of Education.
In January 1937 the government established the Brazilian National Artistic and Historic Heritage Service, “Servigo Historico e Artistico Nacional” (SHAN), intended to protect, preserve and publicize national heritage. From 1940 SHAN began to register and protect archaeological sites and collections. However, most cultural property continued outside its protection. Therefore, a new Penal Code was also issued for the first time in 1940, to punish the destruction of cultural resources, including archaeological ones. SHAN established a register of protected sites and archaeological collections in 1940, under the authority of Decree 25/37.
In 1948, the State of Parana passed a law protecting Spanish and Jesuit sites, including the surrounding area of one hundred hectares, resulting in the eventual establishment of the heritage parks of Vila Rica, Santo Inacio and Ciudad Real. Several judges and other officials were also trying to protect shell middens in different parts of the country.
The Prehistory Commission, established in 1952 by Paulo Duarte, sought to protect archaeological sites, shell middens and other remains. Duarte was another leading intellectual, and was to become the main promoter of heritage protection in Brazil. In his view national heritage included pottery, lithics, cemeteries, shell middens, rock art, cave occupations, as well as a variety of natural resources, such as rivers, fauna, caves and even traditional paths. Duarte, a liberal who fought for the creation of Brazil’s first university, the University of Sao Paulo, early in the 1930s, was forced into exile during the dictatorship of Vargas (1937-1945). When he returned to Brazil he brought enlightened thinking about the importance of studying prehistory. Duarte had been influenced by French humanism. His friendship with Paul Rivet and his admiration of the Musee de l’Homme, in Paris, led him to propose the formation of the Prehistory Commission, in Sao Paulo, later renamed “Prehistory Institute”. It was headed by Duarte and included leading anthropologists Helbert Baldus and Egon Schaden among other members.
Duarte was very active in the years of Brazilian democracy (1945-1964), organizing initiatives for the protection of archaeological as well as other aspects of heritage. Duarte and the Prehistory Commission prepared draft legislation that was finally approved by the Congress in 1961 (Law No. 3924/61), the first actual comprehensive law regulating the protection of archaeological remains. While the decree of 1937 had intended to protect “those assets linked to the memorable facts of Brazilian history and those of exceptionable value” (first article), the law of 1961 was much broader in its scope, referring to “whatever archaeological or prehistoric monument” (first article). Archaeological sites were protected unconditionally ex ui legis, and Law 3924/61 remains in force as the only explicit federal law on archaeological heritage today.
Law 3924/61 deals with “archaeological and prehistoric monuments” and establishes that they are protected by the law and should be preserved. They are property of the Federal State, to be controlled by the State, and are not subject to the general rules of private property. Archaeological sites in general—such as shell middens, mounds, any ancient human settlement—are considered monuments. It is forbidden to destroy the sites, and economic use of ancient remains is explicitly prohibited. The Law also mentions archaeological excavations and the necessary registration of sites, controlled by SHAN. Archaeological reports and housing of archaeological collections is also mentioned. The export of archaeological resources can only occur when authorized by SHAN.
A military dictatorship was established with a coup d’etat in 1964. During the 1960s and 1970s, several scholars, including Duarte in Sao Paulo and Father Rohr in Santa Catarina, cited Law 3924/61 to protect shell middens, but Brazil was under military rule and enforcement was not forthcoming. The humanist approach to the past, so fundamental to efforts to preserve humble shell middens against developers, was first sidelined and later opposed by the military authorities and their supporters. However, Brazilian archaeology received significant assistance when Betty Meggers and Clifford Evans, two American archaeologists from the Smithsonian Institution who had done fieldwork in Brazil since the 1940s, were able to work in close co-operation with the authorities and set up a large archaeological survey project, known as PRONAPA (National Program of Archaeological Research). Several Brazilian archaeologists were trained in the program.
The restoration of civilian rule in 1985 produced a flurry of archaeological activity as State assemblies and town councils became free to legislate on a wide range of subjects, not the least of which was resource management. Several states introduced legislation protecting archaeological sites and establishing state registers of monuments and archaeological collections. This is especially true of states with strong archaeological activities such as Sao Paulo and Rio Grande do Sul. Town councils also introduced similar legislation, and several municipal governments created town Heritage offices. Consequently, urban archaeology has developed and there has been a growth of interest in archaeological resources. A new primary school syllabus, introduced in the 1990s, emphasizes the importance of learning from the local reality, so that one’s town becomes the starting point for understanding social life. In this context, archaeology plays a special role, showing school children that their town was inhabited by natives in prehistoric times. Furthermore, material evidence from the historic period, recovered by archaeologists, is presented to demonstrate biases in documentary history, and how blacks, natives, people of mixed complexion, immigrants, migrants and poor people in general are underrepresented in official pasts. Local primary school textbooks are now introducing archaeological evidence in order to give the children a more complex view of the past, enabling them to better understand present-day social contradictions.
The major force in Brazilian heritage today is the Institute do Patrimonio Historico e Artistico Nacional/ Institute for National Artistic and Historical Patrimony (IPHAN). The new archaeological code, established by Ordinance IPHAN # 230, on 17 December 2002, ensures that archaeologists are included in planning and execution as environmental consultants and counselors. The Ordinance stipulates that environmental licenses (urgent or not), for activities with the potential for damage (socioeconomic, archaeological, environmental) to the finite base of the archaeological cultural heritage, require archaeological studies. Today, archaeological rescue is more successful than in the past, when operations would typically be stopped midway because of difficulties in concluding them (of course, public dissemination of the results was also completely impaired in that case).
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