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Brazil Supreme Court land demarcation decision sparks indigenous protest

Indigenous groups protest against Brazilian President Jair Bolsonaro’s policies in Brasilia. Image by Karla Mendes / Mongabay.

  • On January 1, the first day of his presidency, Jair Bolsonaro issued a provisional measure (MP 870) shifting decision-making power regarding indigenous reserve demarcations from Funai, Brazil’s indigenous agency, to the Ministry of Agriculture.
  • MP 870 was quickly challenged as unconstitutional in Brazil’s Supreme Court, but on April 24 Supreme Court Justice Roberto Barroso rejected that challenge, though he did agree that if the Agriculture Ministry failed to carry through with indigenous demarcations in future, further legal action could go forward at that time.
  • At their annual encampment in Brasilia from April 24-26, approximately 4,500 indigenous people from across Brazil protested Barroso’s demarcation decision by marching on the Supreme Court building. During the three-day encampment, indigenous groups also protested Bolsonaro’s plan to allow mining and agribusiness within indigenous reserves.
  • Of special concern to indigenous people is the administration’s move toward adopting a policy of assimilation, which could result in the erosion of indigenous autonomy within ancestral reserves, and the absorption of indigenous cultures and traditions into Brazil’s predominant culture.
Protesting indigenous peoples march at night toward Three Powers Square, the site of Brazil’s Supreme Court, Presidential Palace and National Congress on April, 24 2019. Image by Karla Mendes/Mongabay

Indigenous groups suffered a defeat at Brazil’s top court on the same day that thousands of native people gathered in Brasilia to fight for indigenous rights guaranteed under Brazil’s 1988 Constitution.

On April 24, Supreme Court Justice Roberto Barroso rejected an injunction challenging as unconstitutional a Bolsonaro administration provisional measure that transferred the authority over the demarcation of indigenous lands to the Ministry of Agriculture.

When president Jair Bolsonaro took office on January 1, one of his first acts was the issuance of provisional measure (MP 870) that stripped the country’s indigenous affairs agency (Funai) of its role in demarcating indigenous lands, and transferred this power to the Agriculture Ministry.

The move triggered an outcry from rights groups, who say that this change places indigenous land rights at risk because the Ministry is dominated by ruralist agribusiness interests who have long desired access to indigenous reserves. Though the 1988 Constitution required the demarcation of indigenous lands, administrations since that time have dragged their feet, and been very slow in accomplishing the task leaving many ancestral indigenous territories unprotected.

MP 870 also placed Funai — previously under the Ministry of Justice — under the new Ministry of Human Rights, Family and Women launched by Bolsonaro. This change was also criticized by rights groups and justices since the new catchall ministry is viewed as politically weak.

A technical note published by the Office of the Prosecutor General, known as PGR, in March considered MP 870 unconstitutional, due to the potential conflict of interest created by the Ministry of Agriculture having decision-making power over demarcations. The PGR’s office also defended the continued maintenance of Funai under the Ministry of Justice.

But Justice Barroso denied the injunction of unconstitutionality filed by the Brazilian Socialist Party (PSB), arguing the lack of evidence pointing to “the existence of a threat of injury… in the short time necessary for approval or rejection of the provisional measure.” Presidential provisional measures must be approved by Congress to become law within 60 days, with a possible permitted extension of another 60 days, or they become null. MP 870 has been given an extension until June 3, according to the high court ruling.

Importantly, the Justice Barroso did leave the door open for future legal action, saying that an eventual refusal by the Ministry of Agriculture in carrying out demarcations could trigger action from the Supreme Court to ensure the fulfillment of Brazil’s Constitution.

PSB did not respond to requests for comment.

Although Barroso rejected the injunction, the merit of the PSB lawsuit has yet to be analyzed by the Supreme Court’s plenary, a spokeswoman at Brazil’s top court said.

A young indigenous woman, one of 4,500 native people who converged on Brasilia for the 2019 Free Land Encampment in Brasilia. Image by Karla Mendes/Mongabay

Fighting for land rights

The overturn of MP 870 was one of the main goals of this year’s annual gathering of indigenous groups in Brasilia, called the Free Land Encampment. Some 4,500 indigenous people attended this year’s event held from April 24-26 — the second-largest such meeting in 15 years.

During the three day event, indigenous groups from across Brazil accused the new administration of undermining their rights. “Bolsonaro’s government is a tragedy,” said Sônia Guajajara, the leader of Articulação dos Povos Indígenas do Brasil (APIB), which represents more than 300 Brazilian indigenous groups that speak 274 languages.

“What is in dispute is the land,” Guajajara declared.

Since taking office, Bolsonaro has announced plans to open up indigenous lands for mining and agribusiness. During his campaign last year, he said that “not one centimeter of land will be demarcated for indigenous reserves or quilombolas, [communities of runaway slave descendants].”

The administration is also pursuing ongoing steps to weaken environmental regulations and agencies.

In the week before the indigenous encampment, the far-right president published a Facebook live post in which he met with alleged indigenous groups and urged mining activities on their lands where “there are billions, or trillions of dollars” underground.

“The big corporations are the bosses, who do not care about people’s lives,” countered Guajajara. “What matters for the economy sector is the GDP [Gross Domestic Product], the value of the stock exchange, no matter how many people are being exterminated.”

“We just want the right to continue what we are; to continue with our preserved diversity. We do not want the society that Bolsonaro wants to introduce us [to],” the activist said.

An indigenous warrior symbolically points his bow toward the National Congress during a march of the Free Land Encampment. Image by Karla Mendes/Mongabay

The Bolsonaro administration supports assimilation, an indigenous policy once pushed by Brazil’s military dictatorship (1964-1985) that would forcefully merge unique indigenous cultures and traditions with the predominant culture.

Indigenous groups at this year’s encampment also accused the government of trying to intimidate them by calling in the National Force — federal law enforcement — to “preserve public order” during the days of the protest, even though the demonstration unfolded peacefully.

“The National Force will not stop us. We arrived in Brasilia and here we will stay,” Guajajara said.

However, after the Brasilia indigenous encampment was established on Tuesday, negotiations with security forces required its site be moved away from a location near the National Congress to a new venue.

The Bolsonaro administration did not respond to requests for comment.

Security forces block access of indigenous groups to the National Congress during the encampment. Karla Mendes/Mongabay

On the night of April 24, thousands of indigenous protesters, carrying signs demanding land and human rights, marched peacefully along Brasilia’s main avenue toward the so-called Three Powers Square, the site of the Supreme Court, Presidential Palace and National Congress.

They illuminated the square with the word “Justice,” written in Portuguese, and held a vigil in front of the Supreme Court.

“The message we are sending is that justice means the rights to our territories recognized… Justice means our territories not being invaded. It means our leadership not being murdered,” said Marcos Xukuru, Indigenous leader of the Xukuru people. “This intervention means justice. This is what we are doing here, demanding justice.”

During a march on April 26, an indigenous group protested in front of the Ministry of Agriculture.

“We will never accept the Ministry of Agriculture to be responsible for the proceedings of the land demarcation process and for our territorial rights,” indigenous leader David Karai Popygua shouted at the ministry entrance.

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While past Brasilia encampments have seen violence, with police use of tear gas, this year’s protest, though tense, was peaceful. However, escalating public rhetoric indicates that future confrontation between the Bolsonaro government and indigenous groups could be likely. Image by Karla Mendes/Mongabay