A bid to legitimize invasions of Brazil’s indigenous lands faces a court challenge

A court in Brazil is set to hear the latest case in a growing onslaught by the administration of President Jair Bolsonaro against the country’s indigenous peoples and their territories.

The legal wrangle centers on Resolution No. 9, issued at the end of April by FUNAI, the federal agency for indigenous affairs, which legalizes registration of properties inside reserves that are in the demarcation process throughout Brazil. The regulations was authored by two advocates for agribusiness inside the government and disregards all indigenous territories not ratified or registered by the federal government, affecting 237 reserves that are still undergoing the demarcation process.

Together, these lands span 9.8 million hectares (24 million acres) — an area the size of Iceland — and would under Regulation No. 9 be open for sale, subdivision and speculation. Half of these reserves do not yet have defined boundaries. On May 14, the Federal Public Ministry (MPF) in the Amazonian state of Mato Grosso requested the immediate annulment of the directive. The request will be heard by a court.

“Resolution No. 9 oversteps FUNAI’s own constitutional mission, which is to support and protect the indigenous. It is an illegal, unconstitutional and inopportune measure, to say the least,” said Ricardo Pael, the attorney general for Mato Grosso and one of the officials mounting the legal challenge against the federal government.

Environmentalists and nonprofit organizations agree. Juliana de Paula Batista, a lawyer with the nongovernmental Socioenvironmental Institute (ISA), says the regulation could be used to pursue “certification for ownership and property inside indigenous lands, which are inalienable and unavailable” under the Constitution.

The regulation was written by Marcelo Xavier and Nabhan Garcia, who are vocally pro-agribusiness government officials. Xavier is the head of FUNAI and has a checkered track record as a federal representative from Barra do Garças in Mato Grosso, where he became embroiled in controversy surrounding the expulsion of intruders from the Maraiwatsédé Indigenous Territory.

He later served on a parliamentary inquiry targeting FUNAI and the National Institute for Colonization and Agrarian Reform (INCRA), seen by many as a witch hunt pushed by the agribusiness lobby against officials seen as sympathetic to indigenous rights and land reform.

Garcia, meanwhile, is the secretary of land affairs in the Ministry of Agriculture. An ex-president of the right-wing farmers’ group UDR (the Ruralists Democratic Union), Garcia has an even starker track record of animosity toward indigenous peoples. In his current role, he also oversees INCRA, the land reform agency.

FUNAI’s Regulation No. 9 affects indigenous lands in 24 of Brazil’s 27 states. The three with the greatest area of affected land run north to south down the Amazon: Amazonas is top, with 30 targeted reserves, followed by Mato Grosso do Sul with 26 and Rio Grande do Sul with 23. In the Legal Amazon region (which comprises the states of Acre, Amapá, Amazonas, Pará, Rondônia, Roraima and parts of Mato Grosso, Tocantins and Maranhão), 95 territories are threatened by the regulation.

Indigenous reserves coveted by outsiders

Public lands in the Amazon are generally seen as open game for the expansion of various activities that ultimately damage the rainforest. Indigenous reserves are at the heart of the matter because they are on national lands. Because they are remote, indigenous groups suffer under pressure from squatters, landed estate owners and extractive sector giants for control of the land.

In Amazonas, data from the Brazilian Forest Service show that many parties are eyeing indigenous land. At least 270 of them have invaded reserves in 19 municipalities across the state. That figure doesn’t include those encroaching on registered indigenous territories. The encroached land comprises at least 1.9 million hectares (5 million acres) that overlaps onto the reserves, or about half the size of Switzerland, but the real number may be even greater.

The official data come from the Cadastro Ambiental Rural, a registry of self-declarations that ostensible landowners must fill out and submit. State and federal officials are then supposed to check these declarations, but in practice this rarely happens. This makes the Cadastro a ready tool for land-grabbing, activists say, and the amount of overlapping land is an indicator of conflicts.

“Indigenous lands in the Amazon are sought after by people who want to mine for gold, cut timber, open pasture for cattle farming or simply speculate,” said Fernando Vianna, the coordinator of indigenous politics for the FUNAI Workers Association.

The affected reserves in the state of Amazonas lie largely in three regions: the Upper Rio Negro, home to most of the state’s isolated peoples and which today is suffering the effects of the coronavirus pandemic; the central region, drained by the Amazon River and its tributaries; and the so-called Arc of Deforestation in the south.

Municipalities in the southern part of the state, like Boca do Acre, Canutama and Lábrea, are all on the list of the most heavily deforested regions in Amazonas during the first four months of this year. There are more than 1.6 million hectares (4 million acres) of indigenous territory in this region — both ratified and undergoing demarcation — that have been invaded; the invaders lay claim to 143 properties. This region is home to the Jacareúba/Katawixi and Isolados indigenous lands, both at the head of the Rio Cuniá River, whose people are at heightened risk from outside threats because of their isolation.

In Lábrea alone, 1.4 million hectares (3.5 million acres) of reserves have been invaded. The municipality has the largest number of invading claims on indigenous lands in Brazil: 91 in all. Lábrea is famed for being a “no-man’s land” as far as enforcement of indigenous land rights goes, run by land grabbers, landed estate owners and cattle ranchers. Players in other industries are also interested in the land here. The central region of the state is rich in natural gas and oil reserves, coveted by giants in the sector. FUNAI has established that the exploration blocks coincide with the Igarapé Paiol Indigenous Territory belonging to the Apurinã people in Manaquiri — another of those affected by the federal regulation.

The municipalities of Autazes, Careiro and Careiro da Várzea also lie in the heart of Amazonas. Together with Manaquiri, they are home to at least 16,500 hectares (40,700 acres) of indigenous lands that have been invaded by outsiders. Amid the land-grabbing, efforts by the indigenous communities to formalize their territorial claims have been stymied by the government: the demarcation process for the Vista Alegre Indigenous Reserve, for instance, was blocked in January by Sérgio Moro, the then-minister of justice.

Mining companies have also taken an interest in indigenous lands. The Jauary reserve in Autazes is home to a potassium mining project belonging to a subsidiary of a Canadian bank. The Mura people are fighting for the demarcation of this and another eight territories in the heart of Amazonas comprising at least 26,000 hectares (64,200 acres), part of which has still not been delimited.

Murders, poisonings and hunger in Mato Grosso do Sul

In Mato Grosso do Sul, the conflict over land has resulted in indigenous people being thrown off their territory. The state is number two in terms of the potential fallout from the FUNAI regulation, with 26 indigenous territories either declared, under study or identified. Most are located in the southern cone near the Paraguay border, which is Brazil’s epicenter of violence  against indigenous people. The Guarani Kaiowá and Ñandeva people, together with the Ofaié and Terena, lay claim to at least 275,000 hectares (680,000 acres) throughout the state.

There are at least 200 encroaching claims that overlap with reserves under demarcation in Mato Grosso do Sul, amounting to more than 165,000 hectares (400,00 acres) in 29 municipalities — an area larger than the municipality of São Paulo.

Right on the Paraguay border, these invaders claim 34,000 hectares (84,000 acres), the largest cluster in the state, that overlaps onto indigenous land in the municipality of Paranhos. This is where the Potrero Guaçu and Y’Poi/Triunfo reserves lie. The first has been dealing in court with successive injunctions from farm owners blocking their demarcation process. On the second reserve, the Guarani Ñandeva were surrounded by gunmen in 2017.

The indigenous people on both reserves live in dire conditions, either in encampments along the sides of freeways or in so-called back pastures of neighboring landed estates — a pattern that is repeated across Mato Grosso do Sul. The suicide rate among young Guarani Kaiowá here is high. In areas under dispute, indigenous people normally rely on contributions from food banks to keep from starving.

Compounding this humanitarian tragedy are real-life massacres: brutal crimes against the Guarani Kaiowá and Ñandeva are a reality in the region running from Dourados to Paranhos. This 300-kilometer (180-mile) stretch includes the municipalities of Amambaí, Caarapó, Laguna Carapã and Rio Brilhante, and is full of gunmen and armed security guards working for farm owners.

The disputes also raise health concerns. The native Atlantic rainforest here has been cleared for pastureland and monoculture plantations, which bring with them the indiscriminate use of pesticides that often poison the indigenous people.

“It is very common for farm owners to leave empty pesticide canisters near the villages so the indigenous will use them as buckets [to carry water], contaminating themselves,” said Flávio Vicente Machado from the Missionary Indigenous Council (CIMI), a Catholic Church-affiliated NGO, in Mato Grosso do Sul. He spoke at the release of a report on damages due to pesticides in Brazil.

In May 2019, the Guarani Kaiowá on the Guyraroká Indigenous Territory were poisoned by a cloud of pesticides and lime released from the Remanso II farm, which neighbors the disputed territory. At the time, there were 15 children eating lunch in a school only 50 meters (160 feet) from the edge of the property. The children suffered from asthma, lack of breath and vomiting, along with chest, stomach and head pains. Animals like dogs and chickens died. The toxic dust contaminated the community’s yards and vegetable gardens.

At the time, the village’s leader, Erileide Domingues, told reporter Leandro Barbosa from El País, “We don’t have a lot of food in the village. We can’t really throw things away because it’s what we have to eat. We tried to protect ourselves, but the dust covered everything.”

The reserve is one of those affected in the state by the new federal regulation: the Kaiowá claim 11,000 hectares (27,000 acres) within the municipality of Caarapó. “The indigenous people are confined in minuscule living spaces along freeways, on the backside of farms or even in urban spaces. Between the old colonization process and the development of agribusiness, disputes with farmers and their gunmen have intensified. It is a very tough reality,” said Vianna from the FUNAI Workers Association.

Legal battles

The cases in Amazonas and Mato Grosso do Sul are the tip of the iceberg when it comes to the devastation that the FUNAI regulation threatens to unleash. Hundreds of other indigenous territories are at risk under the new policy. When the National Rural Environmental Registry System was last updated on Feb. 18 this year, at least 12.3 million hectares (30.4 million acres) of indigenous lands across Brazil were simultaneously claimed by invaders. This amounts to four Switzerland-sized territories in conflict. Some of these claims have already been legitimized under the regulation: since the issuance in late April, 72 farms have been registered with the government.

State governments have also been quick to adopt the new measure, Mato Grosso the first of them. Governor Mauro Mendes has proposed a bill that’s nearly identical to the FUNAI regulation, offering an opportunity for the legalization of property ownership inside reserves.

According to a study by the Federation of Indigenous Peoples and Organizations of Mato Grosso, the International Rivers Life Center Institute and the Native Amazonia Operation, more than 2.4 million hectares (6 million acres) of indigenous lands are at risk in Mato Grosso. Data compiled by the Socioenvironmental Institute show there are at least 20 vulnerable reserves in the state.

“The state bill follows the same norms as the FUNAI regulation, disregarding lands in the demarcation process so that properties can be legalized,” said Pael, the state attorney general. “In fact, there is strong indication that it is a coordinated act because it was presented a week after the publication” of Regulation No. 9.

The regulation itself has already faced a legal challenge: the Federal Supreme Court heard a request for its annulment, but on May 7 denied the request on the grounds that it hadn’t been filed properly.

In response to a request for comment from Mongabay, FUNAI said the regulation “intends to correct unconstitutionalities.” It says that blocking property claims that overlap onto areas under demarcation would impede “the full usufruct of the land” of the supposed owners. The Special Secretariat of Land Affairs, the office headed by the regulation’s co-author, Nabhan Garcia, said it did not participate in the meetings to draw up the regulation nor does it have access to documents pertaining to it.

Banner image of a cemetery of the Guarani Kaiowá people in the village of Guyraroká, Mato Grosso do Sul, by Christian Braga / Farpa / CIDH.

This story was first reported by Mongabay’s Brazil team and published here on our Brazil site on May 22, 2020.