Brazilian Native Peoples Are at Risk of Losing Their Reservations

Tens of thousands of people took the streets of at least 366 cities in Brazil on June 19. The gatherings expressed support for indigenous peoples who, in addition to being disproportionately affected by COVID-19, are now facing the ramifications of a bill that could drastically change their communities. A revived 2007 proposal, PL 490, also known as the “Demarcation of Indigenous Lands,” would impede indigenous peoples’ right to create new reservations, allow the federal government to take possession of existing ones, and end the policy of no-contact with isolated indigenous peoples. As a result, the last stewards of the forest, including the Amazon, could disappear.

The anti-government protestors also demanded the impeachment of far-right President Jair Bolsonaro for his mismanagement of the pandemic, which has already claimed 500,000 lives. They also appealed for more vaccines and an increase in emergency assistance.

“Bolsonaro represents the Genocide and Ecocide of Brazil,” tweeted Sonia Guajajara, the Executive Coordinator of the Articulation of Brazilian Indigenous Peoples (APIB). She posted her statement while attending one of the weekend marches in Brazil’s capital, Brasilia. “#ForaBolsonaro (#OutBolsonaro) now, we can’t wait! We come together on #19J (June 19) for life, vaccination, and guaranteed rights!” She added, “#Demarcaçāojá,” which translates to #DemarcationNow, alluding to indigenous peoples’ Constitutional right to establish reservations.

PL 490 challenges this right. It establishes the so-called “timeframe rule” (marco temporal) for indigenous reservations. According to this rule, any reservation created after October 5, 1988 – the date when Brazil’s latest Constitution was enacted – would be annulled. There are currently some 1926 indigenous lands in Brazil, with most of them at different stages in the demarcation process, and only some 380 approved by Presidential decree since 1988. Under this rule, the majority of these lands would be invalidated.

Also, the bill would alter the 1973 Indigenous Statute which guarantees that “[the] Union may establish, in any part of the national territory, areas destined for possession and occupation by the Indians.” Currently, the federal government, with Presidential approval, has the competency to demarcate indigenous lands.

However, Bolsonaro, who has been antagonistic to indigenous peoples’ rights as an impediment to economic development, has set a moratorium on demarcations since 2019. In fact, he promised during his campaign in 2018, that “if I win [the presidency], there won’t be another square centimeter of land for indigenous communities.”

If approved, the bill would also give the federal administration the right to repossess land if it deemed unoccupied and not properly used for development. Indigenous communities could lose the lands they have possessed for decades to predatory undertakings, such as “hydroelectric plants, mining, roads, and leases, among others,” according to Climate Observatory, a coalition of dozens of Brazilian and international environmental groups.

During a 2018 campaign speech Bolsonaro pointed on a map saying, “here, these [areas] are [all] indigenous reservations in Brazil,” and “where there is an indigenous reservation, there is wealth underneath it,” adding that the laws protecting indigenous lands needed to be drastically revised.

Another change that the new bill PL 490 would implement is an end to the policy of “no contact” with isolated indigenous peoples, claiming that contacting them is in the public interest and should be intermediated by public or private entities, rather than by FUNAI, the agency responsible for protecting indigenous interests. FUNAI instituted the ‘no contact’ policy in the 1980s declaring that isolated groups “must have the option to [have contact], at the time and in the way they see fit.” Indigenous communities fear that ending this protection would eliminate preliminary consultation with isolated communities, making them vulnerable to economic abuses.

Backed by the current administration and the House Rural Caucus, who are eager to exploit indigenous lands, PL 490 is being rushed through Congress. After quick deliberations in two other committees, the bill has reached the Constitution, Justice and Citizenship Committee (CCJC) — its final hurdle before a final document is sent to the House floor for a vote.

The CCJC is where the bill will be analyzed on all matters regarding its constitutionality and legality. During a committee meeting last week, the nation’s first indigenous Congresswoman, Joênia Wapichana, expressed her concerns over the proposed bill, among them was a procedural problem.

“If there’s an alteration to be done to article 231 [of the Constitution], the bill should be passed through proper means, [either] as a complimentary law, or even an amendment to the Constitution, not as an ordinary bill,” she stated. Article 231 of Brazil’s Constitution focuses on indigenous rights, under which, “Indigenous people are recognized for their social organization, customs, languages, beliefs and traditions, and for their original rights over the lands they traditionally occupy, and it is the Union’s competency to demarcate them, protect and ensure respect for all of their assets.”

Wapichana also pointed out that the bill is contrary to the Constitution, “[as] it has several unconstitutional components that significantly alter the Constitutional text on article 231 when it sets the timeframe rule to be considered in the legislation.” In fact, by using the timeframe rule, the basic indigenous rights on article 231 could be completely wiped out. Wapichana denounced the committee for, “closing its eyes to this absurdity that is being proposed here today.”

The bill also erroneously claimed that the Supreme Court (STF) had reached a favorable decision on a legal case that reviewed the timeframe rule. “Unfortunately, the report [about the bill] was read, and it seems as though people are believing that the [timeframe directive] has already been decided by the STF. This has not been decided by the court yet,” she said.

In fact, the STF is currently analyzing two probes regarding the constitutionality of the ‘timeframe rule’ and the repossession of indigenous lands. These cases could determine the future of land demarcation because the court has given them the status of “general repercussion,” which means that any ruling on the cases will serve as a legal precedent for the government in deciding demarcation procedures. (At the moment however, the court has suspended its judgments pending a request by one Justice to conduct proceedings in person instead of by video conference. It is expected that these legal actions will resume on June 30.)

While PL 490 is being discussed at the CCJC, Congresswoman Wapichana voted independently against the bill on June 22 for presenting several unconstitutional clauses. In mid-June, she and several other congressmembers requested two extra weeks to examine the bill in more detail.

“I ask that we review this process, so that we can deliberate and discuss this bill, [and] hope that my colleagues spend the weekend thinking about this, ‘who do they want to protect: their own individual interests, or the collective rights that are protected by our Federal Constitution?’” Wapichana said. At the end of a CCJC meeting last week, she challenged her fellow lawmakers saying: “why this greed over indigenous lands? This is cruelty, this is selfishness, this is unbridled greed? We need to call you out to keep these rights…our Constitutional rights.”

Earlier this month about 800 people from 40 communities began protesting PL 490, the ‘timeframe rule’ at the STF, and illegal mining of their lands, gathering in front of the House of Representatives to prevent a vote on the bill at the CCJC. During one committee meeting on June 22, some of the indigenous people who had convened outside Congress faced police violence and were dispersed with tear gas and rubber bullets. At least three people were injured.

After the attack Wapichana joined the protestors outside the chambers. “[This is] another day of struggle and resistance by the indigenous peoples of Brazil, who were harshly repressed and attacked while demonstrating against #PL490, scheduled to be discussed today at the CCJC session,” she tweeted. “We are here to fight for [our] collective rights!” she explained.

PL 490 is still under discussion at the CCJC and indigenous communities plan stay to oppose it.

Anna Buss is a 2018-2019 fellow journalist with the New Economy Coalition’s Reporting Project, focusing on stories about climate change from a solutions perspective. She’s also the Assistant Producer of the daily news and political radio and TV show ‘Rising Up With Sonali,’ on the Pacifica Radio Network and Free Speech TV.