Against the State, For Indigenous Lands

Imagine that the title on your house would be recognized only if Congress approved it. Would you feel safer or less secure? This reality is already faced by millions of Brazilians who live in the favelas and have their possessions subjected to this political game. A game that should be extended to the indigenous peoples of Brazil, according to several congresspeople.

The Proposal of Constitutional Amendment (PEC) 215 — which was supposed to be voted on December 16 until the vote was canceled due to protests by Indians — is intended to change the land demarcation regime of indigenous lands, which will depend upon politicians’ approval. Currently, Article 231 of the Brazilian Constitution states that “Indians’ social organization, customs, languages, beliefs, traditions, and originary rights over lands they occupy are recognized, and it competes to the federal government the demarcation, protection and respect to said possessions.” The first paragraph of the article defines which are those lands:

“[T]hose inhabited by Indian peoples in a permanent capacity, those used by them for their productive activities, those which are indispensable to the preservation of environmental resources required by their welfare and those necessary to their physical and cultural reproduction, according to their uses, customs, and traditions.”

Thus, the federal government is supposed to stipulate the boundaries of indigenous lands. When we speak of the federal government, of course, we mean the executive branch, via organs such as FUNAI (the National Indian Foundation). The several steps undertaken by the demarcation process can be found on their website.

None of them are essentially political. Technical and anthropological criteria are used to recognize a preexisting right to permanent possession, the same way that the regularization of the property of any citizen, in rural or urban areas, uses some criteria to register existing but undocumented properties. The process for indigenous peoples is different because of an ethnographic matter: their possession regime is different, regulated by specific uses and customs. But mostly the same rules apply in both cases.

The procedure is an administrative one and is supposed to verify whether there is actual possession over the land and whether it is legitimate. If it is not considered legitimate, the courts step in. The discussion, however, becomes legal, not political.

PEC 215 would change that scenario, giving the Brazilian Congress the exclusive right to approve demarcations and ratify the existing ones. With a sufficient majority, subjected to intrigue and ad hoc coalitions, land demarcations in Brazil can be slowed to a crawl, making the Indians’ situations even more unbearable than they are.

In that case, what could happen to the Munduruku communities that live along the Tapajos river, where the government intends to build several dams that will flood the entire region? They did not wait to find out: Seeing the government’s negligence in recognizing their traditional rights and its impressive efficiency in the hydroelectric project, the Mundurukus from the Sawre Muybu community established the limits of their lands themselves and now got themselves into a legal battle against the Brazilian government (incidentally, you can donate for their cause on Indiegogo).

The common rights to the land are extremely fragile in the current regime and would become even worse if it is up to the politicians.

And it is both a violation of the indigenous communities’ rights and a regression. Change should strengthen their rights, not make them even flimsier. Their lands should not be property of the Brazilian government anymore. The land, with “usufruct” by the Indians, should become common property, as is already the case in the Quilombola (fugitive slaves descendants) communities.

Change is expelling the state out of the Indian lands. PEC 215 intends to smash indigenous rights to the land. It intends to make the state ever more present in the lives of Indians. It should be rejected.

Translated into English by Erick Vasconcelos.

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