It is common knowledge that Brazil is the largest, most populated country in Latin America. It is less common knowledge, however, that Brazil’s indigenous population is currently facing a number of critical issues that threaten the future of its people. Even during the first-ever World Indigenous Games—which was recently held in October 2015 to highlight indigenous cultures and values—there was little discussion about issues that impact rights, land ownership, and culture preservation for the Brazilian Indians.
The National Indian Foundation (FUNAI), an executive agency set up to ensure the protection of indigenous interests, currently handles the mapping of indigenous territories in Brazil. A proposed constitutional amendment known as PEC 215 would transfer the power of demarcating indigenous land from the Executive Branch (FUNAI) to the Legislative Branch (Congress). This transfer of power could have huge implications on the indigenous people, as many fear it will eventually allow Congress to reduce, reverse, or even deny the demarcation of land to indigenous people. Brazilian Indians, human rights defenders, and environmental activists fear that Congress will cave to pressure from corporations and instead open the land for their use which may represent a step backwards in the fight to preserve Brazilian Indians’ traditional ways of life.
Article 231 of the Brazilian Constitution recognizes indigenous peoples and guarantees them permanent possession and exclusive use of their traditional lands including the “riches of the soil, [and] the rivers and the lakes existing therein,” but excluding subsoil such as mineral resources. Demarcating land as “indigenous” secures the Brazilian Indians’ rights as recognized in the Brazilian Constitution of 1988. Under President Dilma Rousseff, there have been fewer demarcations granted than under any other government since 1988. This is largely because legislative proposals from congressmen representing large agri-businesses, mining corporations, and the dam industry—all of whom intend to take the land from indigenous peoples and open it to development—have obstructed the demarcation process. To date, FUNAI has mitigated the problem somewhat because it is less hostile to indigenous interests and holds more distant relationships with the private corporations.
The land rights and cultural interests of the Brazilian Indians stand to change dramatically with the shift in power that is proposed by PEC 215. Within Brazil’s Congress, there is a faction known as the Bancada Ruralista, a group of legislators who have transferred jurisdiction over private multinational companies to the legislative branch. Since the Bancada Ruralista today dominates Congress, it is highly unlikely that Congress would grant new demarcations if the PEC 215 passes. As Brazilian Indian activist, Narube Werreria from the Karaja nation states, “Soon, there will be no more indigenous peoples, no more forest, no more animals.” If PEC 215 becomes law, Congress is likely to decrease the establishment of indigenous lands and protected areas, which would create major deterrent for Brazil to meet its commitments to international agreements and cause irreparable environmental destruction.
Human rights defenders and environmental activists are concerned that political considerations will lead lawmakers to ignore Brazil’s obligations under international law regarding indigenous peoples’ rights, and to base their decisions instead on economic expediency. Fiona Watson, the research director for Survival International, stated that “many Indians consider PEC 215 a move to legalize the theft and invasion of their lands by agri-businesses. It will cause further delays, wrangling, and obstacles to the recognition of their land rights.” Furthermore, Watson compared this situation to “put[ting] the fox in charge of the hen-house.”
As a Member State of the Organization of American States (OAS), Brazil is subject to the jurisdiction of the IACHR and bound by the obligations established in the OAS Charter and the American Declaration of the Rights and Duties of Man. Moreover, Brazil has ratified International Labor Organization (ILO) Convention (No. 169) Concerning Indigenous and Tribal Peoples in Independent Countries, as well as the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). ILO Convention No. 169 links the rights of indigenous peoples to social, economic, and cultural rights, specifically as to their relationship to the land. Similarly, Article 26(1) of the UNDRIP states that “Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.” Under Article 41 of the UNDRIP, states have an obligation to ensure Indigenous Peoples’ participation in all of the measures that may affect them.
On October 27, 2015, a parliamentary committee for demarcation of native areas approved the proposed constitutional agreement, PEC 215. Now, it must make its way through the House of Representatives, the Senate, and President Dilma Rousseff must sign it for it to become law. Opponents may appeal the amendment to the Supreme Court, which could reject the newly created amendment if it believes that it is unconstitutional and violates the rights of indigenous peoples. If PEC 215 is not closely monitored or if the rights of Brazilian Indians are not appropriately represented, it may cause tribal cultures to disappear, and Brazil could lose an irreplaceable part of its heritage.