Not One Centimeter: President Bolsonaro’s War on Indigenous Rights

During the 2018 Brazilian presidential election, the far-right candidate Jair Bolsonaro made a promise to seize the ancestral lands of Amazonian tribes and permanently displace the native peoples. Surrounded by screaming supporters at the Hebrew Club of Rio de Janeiro, the former congressman declared, “Not one centimeter of land will be demarcated for indigenous reserves.” [1] As the current president of Brazil, Bolsonaro maintains his rhetoric that allowing indigenous tribes to occupy territory— to which they hold exclusive rights—is tantamount to economic suicide. Under his administration, the Amazonian tribes are in danger of losing all of their ancestral lands and being forced to assimilate into Brazilian society, to line the pockets of gold and diamond mining companies.

On January 1, 2019, Bolsonaro fulfilled his promise by issuing Provisional Measure No. 870 (MPV 870), an order granting the Ministry of Agriculture the authority to delimit lands traditionally occupied by native peoples. [2] This job was previously handled by the National Indian Foundation (FUNAI), a government protection agency set up by the military junta that ruled Brazil from 1964 to 1985 under the Ordinary Law No. 6.001/73. [3] This agency, while imperfect, proved to be adept at working with the native peoples and bringing their concerns to the president of the Republic and the National Congress; meanwhile, over the past three decades, the Agriculture Ministry continually demonstrated itself to be beholden to the wills of mining and agribusiness industries. While turning the power to delineate Indian lands over to the Ministry of Agriculture Ministry is not unconstitutional, attempting to use that jurisdiction to open up protected swathes of the Amazon for agribusiness and mining—as President Bolsonaro and his allies in the private sector have talked about—absolutely is, due to the inalienable rights granted to the indigenous tribes.

According to Article 231 of the Brazilian Constitution, “the lands traditionally occupied by the Indians are intended for their permanent possession, and the exclusive enjoyment of the riches of the soil, the rivers, and the lakes in them.” [4] Fearing that MPV 870 would infringe on these rights, the Brazilian Socialist Party challenged the measure in the Supreme Federal Court of Brazil, but the injunction was rejected by Justice Luiz Roberto Barroso. In ADI 6.062/2019 (Brazilian Socialist Party v. President of the Republic), the justice argued it was not unconstitutional for the president of the Republic to rearrange the responsibilities of the executive branch through provisional measures, as it was unlikely that substantial injury could be placed on the indigenous peoples in the short time that the order would be law—a Brazilian executive order only lasts for up to 120 days unless the National Congress votes to convert the provisional measure into law or votes to reject all or part of the measure. [5] However, Justice Barroso also conceded that a refusal by the Ministry of Agriculture to approve a demarcation of indigenous land could lead to intervention by the Supreme Federal Court to fulfill the promises of the Brazilian Constitution. [6] 

On June 18, 2019, the National Congress enacted MPV 870 with a few noticeable changes, namely the lack of a measure transferring the right to demarcate indigenous land from FUNAI to the Ministry of Agriculture. [7] This decision has not stopped Bolsonaro from attempting to make that objective into a reality. Ordinary Law No. 13.844/19, the new classification for the adopted statutes of MPV 870, was amended by the administration on the same day through a new executive order, Provisional Measure No. 886 (MPV 886). [8] The intent of MPV 886 was to add everything taken out of MPV 870 for Law No. 13.884/19 back into law. 

The new provisional measure, like the former, was quickly challenged in the courts by three separate organizations, each with the same outcome. [9] In the 2019 Supreme Court case of ADI 6.174 (Labor Democratic Party v. President of the Republic), Justice Luiz Roberto Barosso ruled in favor of the plaintiff that MPV 886 was unconstitutional and should be thrown out. [10] Unfortunately, the legal brief was not based on the actual content of the measure but because of bureaucratic error. According to the Justice, MPV 886 is unconstitutional due to the fact that the transfer of competence over the demarcation of indigenous lands was already rejected at the current legislative session; therefore, a new provisional measure cannot reopen that debate until the next session beginning January 1, 2020. [11] Instead of reaching a verdict on the legality of the measure’s content, the question of indigenous demarcation powers simply gets shuffled into next year.

All of these rulings have left the indigenous population in a sort of legislative limbo as the president tests how far he can push against the unalienable rights granted to the natives in the constitution. Any explicit infringement upon the lands demarcated to the tribes is unconstitutional under Article 231, as the National Congress and Justice Barosso have made clear.  Nevertheless, while the natives certainly will not have their lands taken away in the coming months, the Bolsonaro administration will only be waiting until the next legislative session to reattempt turning over FUNAI’s powers to the Ministry of Agriculture. None of the fundamental legal questions have been answered regarding the future of the native peoples in Brazil. However, the powerful mining and agribusiness industries clamoring to gain access to the untouched land of the Amazon will continue to have leverage through the executive branch of the government. While the National Congress seems to be on the side of the Indigenous, Bolsonaro has proven he will stop at nothing to fulfill the promise he made to his nationalist base.

[1] Dolzan, Marcio, ‘We Can’t Open the Doors for Everyone,’ Bolsonaro Says in Hebrew Lecture, Estadão (2017), online at https://politica.estadao.com.br/noticias/ geral,nao-podemos-abrir-as-portas-para-todo-mundo-diz-bolsonaro-em-palestra-na-hebraica,70001725522 (visited July 21, 2019). 

[2] Provisional Measure No. 870, DOU (Jan 1, 2019), http://www.planalto.gov.br/ccivil_03/ _Ato2019-2022/2019/Mpv/mpv870.htm.

[3] Ordinary Law No. 6.001, DOU (Dec. 19, 1973), http://www.planalto.gov.br/ccivil_03/leis/ L6001.htm.

[4] BR Const., ttl. VIII, chap. VIII, art. 231, para. 231, http://www.planalto.gov.br/ccivil_03/ Constituicao/Constituicao.htm.

[5] Mendes, Karla, Brazil Supreme Court Land Demarcation Decision Sparks Indigenous Protest, Mongabay (2019), online at https://news.mongabay.com/2019/ 04/brazil-supreme-court-land-demarcation-decision-sparks-indigenous-protest/ (visited July 24, 2019).

[6] Brazilian Socialist Party v. President of the Republic, ADI 6.062, 2 (STF, 2019). 

[7] Ordinary Law No. 13.844, DOU (Jun. 18, 2019), http://www.planalto.gov.br/ccivil_03/ _ato2019-2022/2019/lei/L13844.htm.

[8] Provisional Measure No. 886, DOU (Jun. 18, 2019), http://www.planalto.gov.br/ccivil_03/ _Ato2019-2022/2019/Mpv/mpv886.htm.

[9] Carneiro, Luiz Orlando, STF: Bolsonaro MP on Indigenous Land Demarcation Already Targeted by 3 Actions, JOTA (2019), online at https://www.jota.info/stf/ do-supremo/stf-tres-acoes-contra-mp-bolsonaro-limitacao-terras-indigenas-21062019. (visited July 21, 2019).

[10] Labor Democratic Party v. President of the Republic, ADI 6.174, (STF, 2019). 

[11] Coehlo, Gabriela, Barroso Suspends Validity of MP That Reorganized Ministries, Consultor Jurídico (2019), online at https://www.conjur.com.br/2019-jun-24/ barroso-suspende-validade-mp-reorganizou-ministerios (visited July 24, 2019).