Demarcation of indigenous lands

The struggle for land is an issue faced by indigenous peoples for a long time. The first inhabitants of the country found themselves, throughout history, involved in the right to have a place to live and produce. But this is a much more complex issue and one that, in fact, must be faced by the whole of society.

One of the main doubts related to this matter concerns the demarcation of indigenous lands. First of all, how to define a space as “indigenous land”? How are lands allocated to nations delimited? What are the duties of the state in protecting the various peoples spread across Brazil?

What is the concept of indigenous lands?

A priori, the definition of indigenous lands is explicit in Art. 231 of the Brazilian Federal Constitution, which states that the portions:

“permanently inhabited by them, those used for their productive activities, those essential for the preservation of the environmental resources necessary for their well-being and those necessary for their physical and cultural reproduction, according to their uses, customs and traditions".

In short, they are the spaces inhabited by the various indigenous nations in the country. However, its concept goes further because it is related to the social, cultural, physical and economic reproduction of these peoples, considering their customs and traditions.

However, it is necessary to understand that indigenous lands are part of the Union's heritage, that is, they do not belong to the peoples who inhabit them. They are called public goods of special use. What does that mean? That no one, apart from indigenous nations, can inhabit these lands, which are still unavailable and inalienable.

This condition guaranteed by the Constitution gives the Indians the right to permanent possession, in addition to the use of the riches of the rivers, soil and lakes existing in these lands.

How many indigenous lands exist today?

There is a certain disparity regarding the number of indigenous lands currently. A FUNAI survey indicates the existence of 732 indigenous territories in the following situations:

• Six interdiction ordinances
• 15 indigenous lands approved
• 16 indigenous reservations forwarded
• 34 indigenous reserves regularized
• 43 indigenous lands demarcated
• 72 lands declared
• 111 indigenous lands under study
• 435 regularized lands

Institutions and non-governmental organizations (NGOs), however, consider the so-called "land without Indians", which are those whose demarcation process by FUNAI has not yet begun. The Missionary Indigenous Council (CIMI), for example, claims that there are 1296 indigenous lands in Brazil.

Of these, 63.3% did not receive any administrative action from state bodies.

How is land regularization carried out in indigenous territories?

The right to territory guaranteed to indigenous peoples can be imposed in the following ways:

• Interdicted lands: interdicted areas for the protection of indigenous peoples in voluntary isolation (who do not maintain contact with society non-indigenous and not with other indigenous people by their own choice), therefore, by controlling the circulation of the 3rd. Disciplined by Decree No. 1775/96.
• Domain Lands: acquired by purchase or donation, being owned by indigenous communities. The lands are not just usufruct of the indigenous people and property of the Union.
• Indigenous Reservations: donated by third parties, acquired and/or expropriated by the Union, destined for the permanent possession of indigenous peoples. They belong to the Union's heritage, in addition to not corresponding to the lands traditionally occupied by the ethnic group in question.
• Traditionally occupied: as listed in Art. 231 of the CF, are those of traditional occupation, therefore, original right of peoples. The demarcation is carried out following Decree n.º 1775/96.

How is the demarcation done?

The demarcation of indigenous lands is the administrative means by which a territory traditionally occupied by one or more ethnic groups is limited. In Brazil, it falls to the National Indian Foundation (FUNAI) to protect and respect the assets of the respective nations.

The task is due to the fact that the foundation is the body responsible for coordinating and executing the indigenist policy in Brazil. An entire process that includes legal and technical requirements must be followed, considering the following factors:

• Verification of territorial demand: it is the first step, when an anthropologist analyzes the demand of the indigenous people and, later, elaborates the Qualification of the Demand. In it, you must indicate the claimed area, in addition to the social, political and economic context.
• Identification and delimitation studies: a technical group (GT) appointed by FUNAI and coordinated by an anthropologist carries out research that will support the Detailed Report on the Identification and Delimitation of the Indigenous Land (RCID). This document must be approved by the president of FUNAI and then have a summary published in the Official Gazettes of the Union and of the respective State.
• Administrative Contradictory: this is the case in which states, municipalities and anyone interested in the demarcated area manifests itself to ask for compensation or indicate errors in the report. The justifications must be presented to FUNAI and analyzed by the Minister of Justice.
• Delimitation of the territory: declaration of the limits of the indigenous land and determination of its demarcation. This is done by means of a declaratory decree issued by the Minister of Justice.
• Physical demarcation and approval: FUNAI promotes the demarcation and establishment of the physical limits of the indigenous land and the approval comes by means of a decree.
• Survey: FUNAI and INCRA carry out a survey of non-indigenous people who are occupying a certain area. If they are “good faith occupants”, they are compensated to leave the premises. In cases of land grabbing (falsification of documents to take possession of vacant lands or belonging to third parties), for example, they must leave the place without the right to compensation.
• Demarcation approval: the President of the Republic carries out the demarcation by means of a decree, accompanied by the removal of non-indigenous occupants upon payment of indemnities. Then, INCRA comes in to resettle these occupants if they fit the profile of agrarian reform.
• Record: FUNAI registers indigenous lands with the Federal Heritage Secretariat (SPU) within a maximum period of thirty days after publication of the ratification.
• Area ban: made by FUNAI in cases of isolated indigenous tribes

Constitutional right

The demarcation of their territories is a right for which indigenous peoples have been fighting throughout history. Before the specific chapters contained in the Federal Constitution (title VIII, “On the Social Order” and chapter VIII, “Of the Indians”), rights related to nations were already expressed in the legal.

However, the expressions did not guarantee fundamental indigenous rights, which even includes the recognition of their traditions as legitimate and respected by the National State. Until the enactment of the Magna Carta, the Indians were seen from an assimilationist perspective, that is, they were losing their customs and traditions.

In this view, peoples were seen only as a transitory “category” doomed to disappear. The absurdity was so great that even the Statute of the Indian brought the expectation that these peoples would “cease to be Indians”. Another change brought about by the 1988 Constitution concerned the size of indigenous lands.

By law, peoples must have enough space to guarantee their physical and cultural reproduction. Still in this sense, the lands traditionally occupied by the respective nations should be demarcated. Therefore, the demarcation of indigenous lands remains an obligation of the Brazilian State.

Other documents safeguard this right, such as Decree 5051/04 and Convention 169 of the International Labor Organization in Brazil (ILO). However, there are still intense conflicts between indigenous and non-indigenous people over land ownership. This is the result of territorial confinement and restrictions imposed on people located, especially, in the South, Southeast and Northeast regions, as well as parts of the Midwest.

What is the importance of demarcating indigenous lands?

Brazil is currently home to around 305 indigenous ethnic groups. Would it be fair that such cultural richness should be dislodged or without support? This is the main importance in the demarcation of their lands to ensure that these peoples keep their traditions, culture, knowledge and ways of life, preserving their contribution to the heritage Brazilian.

Article 24, item VII of the Constitution states that,

Art. 24. It is incumbent upon the Union, the States and the Federal District to legislate concurrently on:
VII – protection of historical, cultural, artistic, tourist and landscape heritage;

In turn, the text of Article 225 of the Magna Carta states that,

Art. 225. Everyone has the right to an ecologically balanced environment, an asset for common use by the people and essential to the healthy quality of life. life, imposing on the Public Power and the community the duty to defend and preserve it for present and future generations.

Therefore, it becomes the duty of the State, through the Union, to guarantee the demarcation of indigenous lands because they constitute Brazilian Historical and Cultural Heritage. Such attribution also guarantees the protection of the environment and biodiversity.

It is also about the payment of a historical debt with these peoples, in order to provide conditions worthy of survival, both from a physical and cultural point of view, in order to preserve the cultural identity Brazilian.