Back to the Basics: Improved Property Rights can Help Save Ecuador's Rainforests

Georgetown International Environmental Law Review, Summer 2004 by Hite, Kristen

b. The Homestead Act of 1964: Challenges to Equitable Ownership

The Unoccupied Lands and Colonization Law of 1964, also known as the Amazon Homestead Act, codified incentives for active settlement and use of the Amazon region.41 Specifically, this act made settlement of "unoccupied" territory a primary national policy objective.42 Indigenous peoples frequently did not qualify as legal occupants or valid holders of property rights because they had not put the land to "productive use" as required by the legislation.43 Productive use required active conversion of forests into cropland or pasture, regardless of topographical conditions or soil quality.44 To claim a plot of land (generally 50 hectares, or 125 acres), a minimum of 50% of the surface area had to be cleared as a prerequisite to land titling.28 Though not mandated by the legislation, this policy was adopted explicitly by government officials and applied universally until the mid-1980s.45 This policy ran in direct conflict with historical extensive land use management practices of many of the indigenous populations present. These communities are dependent upon an extensive farming system that requires that the land lay fallow for a decade or longer in order to regenerate after years of agricultural exploitation.46

As a result of the Homestead Act, increased colonization from the west and oil exploration systematically displaced the indigenous population in the Amazon region of Ecuador.47 Between 1950 and 1982, the region experienced a more than five-fold population increase.48 From 1982 to 1990, growth continued between three and six percent annually.49 The initial strategy of the native communities present was to retreat to more remote areas, an option increasingly less available with further settlement of the tropical forest. As a result of these historical demographics, titled lands allocation disproportionately discriminated against the country's indigenous groups. Even through the 1980s, approximately twenty percent of residents were sharecroppers, communal farmers, or otherwise did not possess exclusive right to land ownership.50

The response of the indigenous populations to government policies on colonization has resulted in emphatic rejections of the efforts, centered around demands for government recognition of collective territorial rights. These territorial rights are derivative of communal tenures, or comunas, legally recognized in the 1937 Ley de Organización y Régimen Comunal and later affirmed in the 1964 law.51 Historically, these comunas were managed under joint ownership of land resources, but there is an increasing trend toward individual land ownership.52 Following this model, many indigenous populations have never adopted a "western" land title system, facilitating governmental expropriation of these comunas through lack of property titles.53 Accordingly, indigenous communities emphatically rejected the expropriation of their traditional lands that resulted from the Homestead Act.