Indigenous Land Rights in Brazil: Challenges and Barriers to Land Demarcation

Abstract

Since the colonial era, indigenous land in Brazil has been occupied by farmers, who are often supported by governmental frontier expansion policies. Brazil’s democratic Constitution of 1988 represented a major paradigm shift from a view that aimed to integrate and assimilate indigenous populations to one that, for the first time, recognized the right of indigenous people to their own culture. The constitutional text also established indigenous original rights over the lands that they traditionally occupied, tasking the federal government with the duty of demarcating these lands. However, the demarcation of indigenous land still faces challenges today. First, the demarcation procedure is bureaucratic, complex, and time-consuming. Second, judicial battles have resulted from a controversy over the constitutional expression “land traditionally occupied.” Third, the demarcation process is subject to the political will of the Minister of Justice and the President. Fourth, the absence of a unique and comprehensive rural land registration data center presents a major problem that has resulted in uncertainty and conflict over land due to different types of overlapping properties. Fifth, many land conflicts involve indigenous land, protected areas, private properties, and small holders, which frequently result in violence and murder. Finally, there are several proposals and amendments to existing legislation that seek to modify the indigenous land demarcation process to make it more difficult or prevent the enforcement of the indigenous land rights. This chapter describes the Brazilian legal procedures for indigenous land demarcation, including a flowchart of the key steps of the process, and analyzes the main challenges to securing indigenous land rights.