By: Christian Zavardino
In recent years, the Indigenous peoples of Brazil have fought a host of legal obstacles to maintain sovereignty over their traditional ancestral lands, in large part owing to the policy imperatives of successive presidential administrations and Congresses that have favored agribusiness interests and commercial development of Brazil’s interior regions at the expense of the Indigenous peoples who live in these areas. The Brazilian Constitution of 1988 guarantees Brazil’s Indigenous peoples legal recognition of their ancestral lands via the “land demarcation” or “official land recognition” process, providing that the federal government shall recognize “their original rights to the lands they traditionally occupy.”[1] These lands, according to the Constitution, “are intended for their permanent possession.”[2] However, several years of administrative delays and lawsuits by commercial farming, ranching, and mining interests have stalled the land demarcation process by which the State recognizes Indigenous lands.
In addition, opposition to Indigenous land demarcation by recent presidential administrations has further weakened Indigenous peoples’ constitutional protections; during his four years in office, former President Jair Bolsonaro fulfilled his 2018 campaign promise not to demarcate any Indigenous lands while also rolling back environmental regulations and promoting commercial exploitation of these areas.[3] The Bolsonaro presidential administration, in addition to its refusal to demarcate any Indigenous territories, also took steps to eliminate or weaken executive agencies tasked with administrating Indigenous lands and incorporating Indigenous peoples into policymaking decisions.[4] In particular, the Bolsonaro government undermined the operations of the National Indian Foundation (FUNAI), an executive agency responsible for coordinating Indigenous administrative and legal affairs, including by reshuffling FUNAI leadership, reducing its cooperation with other government agencies, and directing it to implement policies that impaired land demarcation and its ability to conduct investigations.[5]
Although the administration of President Luiz Inácio Lula da Silva (the current president of Brazil) has made strides in increasing governmental protections for Indigenous lands, particularly those of the Amazon, by pledging to create fourteen new Indigenous territories at the beginning of his term in January 2024 and by his other recognition efforts thus far,[6] Brazil’s Indigenous peoples’ land rights and capacity for self-determination still remain at risk. There are currently 733 Indigenous territories, 237 of which still await demarcation; ninety-three percent of the total number of demarcated territories lie in the Amazon.[7] Earlier this year, Brazilian legislators in the lower house of the National Congress, the Chamber of Deputies, approved Draft Bill 490/2007, leading to mass protests by Indigenous leaders and groups across the country.[8] If enacted, Draft Bill 490 will limit Indigenous peoples’ ability to secure title to their ancestral lands through land demarcation if they did not physically occupy them prior to October 5, 1988, the day on which the current Brazilian Constitution came into effect.[9] Such action is based on a legal theory known as the marco temporal or “temporal framework” doctrine, which aims to invalidate ongoing land demarcation efforts by Brazil’s Indigenous peoples and introduce administrative uncertainty into the status of earlier approved claims by creating a new legal benchmark by which to reevaluate their legitimacy.[10] The legislation passed the Chamber of Deputies amid a then-ongoing lawsuit in the Supreme Federal Court of Brazil (STF) that challenged the legality of the marco temporal doctrine. Shortly after Bill 490/2007 passed in Brazil’s Chamber of Deputies, the STF requested additional time to render a ruling on the case.[11] The marco temporal thesis drew not only domestic criticism, but also widespread international condemnation, with international human rights bodies calling on the STF to reject it as a violation of Indigenous peoples’ constitutional rights.[12]
On September 21, 2023, the STF rejected the marco temporal thesis in a 9-2 decision in favor of the Xokleng-Laklano, the Indigenous group at the center of the controversy who had sought to prevent further encroachment on their lands by agribusiness interests backed by the Brazilian State of Santa Catarina.[13] Nonetheless, less than a week later, the Brazilian Senate passed legislation that would enshrine the marco temporal doctrine into law.[14] After this legislation passed both Houses of Congress, the President vetoed the proposal to prevent it from becoming law in accordance with his previous promise to do so.[15] However, in mid-December, Brazil’s Congress overrode President Lula’s veto, thereby upholding the legislation’s time limit on land demarcation and permitting agribusiness and mining interests to remain on the Indigenous lands they are currently occupying until the lands are fully demarcated.[16] The STF will likely rule on the constitutionality of Congress’ actions as Indigenous advocacy groups prepare to challenge the law in court.[17]
Notwithstanding the decision by the Supreme Federal Court in the Xokleng-Laklano lawsuit, Congress’ efforts to unsettle Indigenous peoples’ land titles and open vast swaths of the Brazilian interior to mining, logging, and agribusiness interests remain a threat. It will require a concerted effort by the current presidential administration to resume land demarcation efforts and make good on the protections that the Constitution affords to Indigenous peoples.
Christian Zavardino is a Staff Editor at CICLR.
[1] Constituição Federal [C.F.] [Constitution] art. 231 (Braz.).
[2] Id.
[3] Brazil: Indigenous Rights Under Serious Threat, Hum. Rts. Watch (Aug. 9, 2022, 8:20 PM), https://www.hrw.org/news/2022/08/09/brazil-indigenous-rights-under-serious-threat [https://perma.cc/98UU-FR96].
[4] Jenny Gonzales, Brazil’s President Lula Recognizes Six Indigenous Lands, and Says More to Come, Mongabay (May 1, 2023), https://news.mongabay.com/2023/05/brazils-president-lula-recognizes-six-indigenous-lands-and-says-more-to-come/ [https://perma.cc/AH42-NAEB].
[5] Hum. Rts. Watch, supra note 3.
[6] Carla Bridi & Fabiano Maisonnave, Brazil Recognizes 6 Indigenous Areas in Boost for Amazon, Assoc. Press (Apr. 28, 2023), https://apnews.com/article/brazil-amazon-indigenous-climate-lula-95ad8bb0cfb43007470a20897001af81 [https://perma.cc/RCN3-BGRJ].
[7] Gonzales, supra note 4.
[8] See Carrie Kahn, Brazil Indigenous Land Law Protest, NPR (May 31, 2023, 1:55 PM), https://www.npr.org/2023/05/31/1179168180/brazil-indigenous-land-law-protest [https://perma.cc/549E-ZJ9C]; Jenny Gonzales, Majority of Brazil’s Congress Votes to Restrict Indigenous Land Advances, Mongabay (June 2, 2023), https://news.mongabay.com/2023/06/majority-of-brazils-congress-votes-against-indigenous-land-rights/ [https://perma.cc/9V24-Y3F7].
[9] Gonzales, supra note 8.
[10] José Francisco Calí Tzay, Brazil: UN Expert Concerned about Legal Doctrine Threatening Indigenous Peoples’ Rights, U.N. Hum. Rts. Off. of the High Comm’r (June 13, 2023), https://www.ohchr.org/en/statements-and-speeches/2023/06/brazil-un-expert-concerned-about-legal-doctrine-threatening [https://perma.cc/R94N-3T8F].
[11] Anthony Boadle, Brazil Top Court Justice Hands Congress More Time to Pass Bill Curtailing Indigenous Rights, Reuters (June 7, 2023), https://www.reuters.com/world/americas/brazil-top-court-justice-hands-congress-more-time-pass-bill-curtailing-2023-06-07/ [https://perma.cc/8E6U-4RP2].
[12] Tzay, supra note 10.
[13] Diane Jeantet & Eléonore Hughes, Indigenous People in Brazil Shed Tears of Joy as the Supreme Court Enshrines Their Land Rights, Assoc. Press (Sept. 21, 2023), https://apnews.com/article/brazil-indigenous-groups-land-rights-supreme-court-715fc33861a5d9b3c6ee98a8362d802f [https://perma.cc/TB6U-WDTW].
[14] Thiago Alves, Brazil’s Senate Limits Indigenous Land Rights; President Lula Expected to Veto Law, Brazil Reports (Sept. 29, 2023), https://brazilreports.com/brazils-senate-limts-indigenous-land-rights-president-lula-expected-to-veto-law/5342/ [https://perma.cc/6CND-CLEL].
[15] Id.; Sarah Brown, Lula Partially Blocks Anti-Indigenous Land Rights Bill, but Trouble Isn’t Over, Mongabay (Oct. 24, 2023), https://news.mongabay.com/2023/10/lula-blocks-time-frame-bill-new-clashes-with-congress-in-sight/ [https://perma.cc/WAE4-LYWL].
[16] Brazil Congress Overrides Lula’s Veto of PL2903: Survival’s Reaction, Survival Int’l (Dec. 15, 2023), https://www.survivalinternational.org/news/13850 [https://perma.cc/B4GV-3Y6A]; Anthony Boadle & Isadora Machado, Brazil Congress Overturns Lula Veto on Limit to Indigenous Land Claims, Reuters (Dec. 15, 2023), https://www.reuters.com/world/americas/brazil-congress-overturns-lula-veto-limit-indigenous-land-claims-2023-12-14/ [https://perma.cc/TR8B-3BXB].
[17] Survival Int’l, supra note 16.