The Bolsonaro government is using legislation and the courts to try to deprive indigenous people of their rights
Indigenous peoples in Brazil are under siege by the Brazilian government, which is waging war on two fronts. New legislation in the form of a bill known as PL 490/2007 threatens to cancel legal protections for Indigenous territories, while a landmark Supreme Court case over the so-called marco temporal, a 1988 cut-off date that threatens to strip the Indigenous peoples of existing land rights. Though not as visible as the effects of the fires that destroyed large swathes of the Amazon forest in 2019 and 2020, were the legislation to pass and the legal ruling to go against the Indigenous peoples, the consequences will be catastrophic.
On 23 June, a committee in the lower house of the Brazilian parliament approved a draft of PL 490/2007, which will now be put to the vote. If lawmakers pass the bill, it will end Indigenous peoples’ right to be consulted on the use of their land by non-Indigenous peoples. The government could allow unrestricted access to natural resources, including extractive activities such as mining and commercial agriculture.
The bill, which has been under consideration since 2007, was proposed by the country’s powerful agro-business lobby. It is a clear violation of the existing protections afforded to Indigenous populations under the Brazilian Federal Constitution and the United Nations Declaration on the Rights of Indigenous Peoples. Its motivation is obvious: to allow greater loggers, miners and cattle ranchers access to vast tracts of land in the Amazon, which is home to the so-called “lungs of the planet”, the single largest remaining tropical rainforest in the world, and houses at least 10% of the known biodiversity. As they have for more than 500 years, the Indigenous peoples of Brazil are once again struggling to maintain their way of life. They are fighting to defend their constitutionally mandated ancestral lands in much the way they once faced down Portuguese colonizers, loggers, and illegal gold miners.
Meanwhile, a challenge looms in Brazil’s Supreme Court. On 30 June, it will review the landmark case that could either affirm Indigenous land rights or set a precedent by stripping territorial rights that were not officially recognized when the Brazilian Constitution was approved on 5 October 1988. The 1988 Constitution, which restored democracy to Brazil after 20 years of military dictatorship, guarantees certain fundamental rights to Indigenous peoples, not least the right to pursue their own cultural lifestyle without pressure to assimilate. Article 231 of the Constitution acknowledges that Indigenous peoples are the original inhabitants of Brazil and says that “the lands traditionally occupied by the Indigenous peoples are destined for their permanent possession, and they are responsible for the exclusive enjoyment of the riches of the soil, rivers and lakes existing in them.” But Brazil’s federal Indigenous affairs agency, FUNAI, has been slow to uphold those rights and the Indigenous peoples and their allies have continued to demand that the federal government enforce them.
In the past few years, the threats to Indigenous peoples have evolved into a more organised campaign that seeks to cancel Indigenous peoples’ constitutional rights. PL 490/2007, the 14-year-old bill that has been given fresh legislative impetus by President Jair Bolsonaro’s administration, may be the last act in the attempt to erase the rights of Brazil’s 900,000 Indigenous peoples to their ancestral lands.
Even before he won the 2018 presidential election, Bolsonaro made known his opposition to Indigenous land rights. Repeatedly complaining that the Indigenous population occupies too much of Brazil’s land, Bolsonaro declared on the campaign trail that “If I become president there will not be a centimetre more of Indigenous land.” Bolsonaro’s subsequent public statements made it clear that his administration would work to erode Indigenous rights to the point that they become non-existent. In 1998, he even remarked: “It’s a shame that the Brazilian cavalry wasn’t as efficient as the Americans, who exterminated their Indigenous peoples.”
FUNAI, the agency that is meant to protect Brazil’s more than 300 Indigenous groups (and many more communities within those groups), has been mobilized for the further dissolution of Indigenous rights. New rules were pushed through to allow non-Indigenous interests to be registered for lands that are claimed by Indigenous communities but where the demarcation process has not been concluded. In effect, this served to privilege the interests of the agro-business lobby by providing a certificate that confirmed its claims did not impinge upon Indigenous lands. Such certificates were issued even for ancestral Indigenous lands where the protracted process of demarcation was at an advanced stage. The technical rule change was to FUNAI procedures affecting 237 Indigenous areas spread over nearly ten million hectares.
Though it had dramatic consequences, it was, at the end of the day, an administrative change to FUNAI’s rulebook. But if PL 490/2007 were to pass and become the law of the land in Brazil, its effects would be more sweeping by far. FUNAI would no longer have a role to play in the demarcation of Indigenous lands and the legislature would have the ultimate power and the authority. The motivation for this attempt to concentrate power in lawmakers’ hands is the same as for previous policies championed by the Bolsonaro government: to open up the ancestral lands of Indigenous peoples in the Amazon for the use of mining companies, loggers and ranchers, who would clear large tracts of forest and develop extractive activities.
Kretã Kaingang, executive coordinator of the Articulation of Indigenous Peoples of Brazil, explains the likely impact of PL 490/2007 as allowing the government to officially take possession of Indigenous peoples’ lands, and throw open those lands “to predatory enterprises, such as mining, and, in practice, make demarcations unfeasible”.
Of course, the fight is not over, by any means. On 23 June, after the draft bill was approved by the parliamentary committee, more than 450 Indigenous leaders from 25 communities across the country, gathered in the federal capital Brasilia to protest the attack upon the constitutional rights of Indigenous peoples in Brazil. The government responded by deploying riot police to fire rubber bullets and tear gas at the protesters.
The focus now shifts to 30 June, when the Brazilian Supreme Court rules on the pivotal case for Indigenous land rights and the country’s legislature prepares to vote on the equally decisive draft bill. As the war on the rights of Indigenous Brazilians intensifies, there is an urgent need for voices around the globe to be raised in support of the resistance. And we urgently need the international community to amplify the voices of the Indigenous peoples of Brazil and to call for public pressure on the Brazilian government to uphold the Indigenous rights that are mandated by Brazil’s Constitution, as well as the UN Declaration of the Rights of Indigenous Peoples, whose adoption Brazil voted for back in 2007. On 28 June, Alice Wairimu Nderitu, special UN adviser to the secretary-general on the prevention of genocide issued a statement saying that she was particularly concerned about the situation of Indigenous peoples, specifically mentioning Brazil.
However, given that moral or humanitarian arguments seem to have very little impact on the Brazilian government, some have turned to the possibility of an international boycott against Brazilian agricultural products, including meat and soy, if these measures are passed. In May 2021, 40 international grocery, food supply, and investment companies published an open letter to this effect. It is likely that a boycott campaign will gain traction if the upcoming rulings change Brazilian laws to remove the rights of Indigenous peoples and protections for the Amazon, which could be devastating for the already fragile Brazilian economy.
Those who want to offer their support for Indigenous rights and environmental protections can sign an open letter whose signatories pledge, if necessary, to implement a boycott of Brazilian products that are linked with the destruction of lands and cancelation of Indigenous rights.
By Mark Harris and Denise Ferreira Da Silva