Brazilian Parliament has two negative proposals for indigenous people

By Ana Cláudia Leocádio – From Cenarium

BRASÍLIA (DF) – Following the withdrawal of Constitutional Amendment Proposal (CAP) 36 by Senator Mecias de Jesus (Republicanos-RR), two other proposals remain under consideration in the Federal Senate, negatively impacting the lives of Indigenous populations in Brazil: CAPs 10 and 48. Meanwhile, in the Chamber of Deputies, two bills deemed “friendly to the Indigenous cause” by the Articulation of Indigenous Peoples of Brazil (Apib) are under discussion.

According to Apib, the three proposals pose significant concerns for Indigenous rights. CAP 36 aimed to amend Article 231 of the 1988 Federal Constitution to allow leasing of Indigenous Territories (ITs), enabling non-Indigenous individuals or companies to economically exploit these territories. The author of the text, Senator Mecias de Jesus, requested its withdrawal on November 29, after facing pressure from movements in Roraima.

Mecias also proposed replacing the term “Indians” with “Indigenous peoples” in the Constitution. Over 1,000 Indigenous people staged protests along BR-174 road in the municipality of Pacaraima (RR) for more than a month against CAPs 36 and 48. During a visit to the protest camp, Mecias justified his proposal to the Indigenous people, claiming he thought he was helping them, but he was not.

In a statement at the time, the deputy explained his decision to retract the proposal, saying he sought to provide greater autonomy for Indigenous communities over their land. He argued that he was responding to a request to open new opportunities for discussion on the proposal until a consensus could be reached with the Indigenous communities directly affected.

Temporal Framework

Deemed harmful to Indigenous peoples by Apib, CAP 48/2023 has been stalled in the Senate since July 2024, following the presentation of a favorable report by Senator Espiridião Amin (PP-SC), which has yet to be voted on.

Submitted by Senator Hiran Gonçalves (PP-RR) on September 21, 2023, the CAP establishes the Temporal Framework for the demarcation of lands traditionally occupied by Indigenous peoples, using October 5, 1988—the date of the Constitution’s promulgation—as the cutoff date for recognizing these rights. According to Apib, this proposal completely disregards the ancestral presence of Indigenous ancestors.

Since July 10, 2024, CAP 48’s progress has been paused to allow senators to review it and to await the outcome of discussions initiated by the Special Conciliation Commission, created by Supreme Federal Court (STF) Minister Gilmar Mendes in August 2024. Mendes serves as the reporter of cases questioning the constitutionality of Law 14,701/2023, which established the Temporal Framework. Apib has nicknamed this commission the “Chamber of Death.”

Hiran Gonçalves’s proposal seeks to enshrine in the Constitution the same rule approved in the “Temporal Framework Law.” The new text adds the phrase: “guaranteeing their permanent possession, with the Temporal Framework set on October 5, 1988,” to § 1^st  Article 231 of the Magna Carta.

Currently, this provision states: “§ 1. Indigenous lands are those traditionally occupied by the Indians [sic], permanently inhabited by them, used for their productive activities, essential for the preservation of the environmental resources necessary for their well-being, and necessary for their physical and cultural reproduction, according to their uses, customs, and traditions.”

In justifying the constitutional amendment, Gonçalves argues that the “amendment does not aim to deny Indigenous peoples their right to their lands, but rather to provide a solid foundation for demarcation, avoiding conflicts and uncertainties that harm both Indigenous communities and other sectors of society.”

In a recent interview with CENARIUM, Senator Hiran Gonçalves stated his intention to resume discussions on his CAP, which already has a favorable report, without waiting for the results of the Supreme Court’s commission discussions. In 2023, the Supreme Federal Court judged the Temporal Framework thesis unconstitutional for Indigenous Territories demarcation.

Permission to Produce and Sell Goods

CAP 10/2024 was submitted by 27 senators, representing one-third of the Senate, on March 27, 2024. Since April 4 of the same year, it has been awaiting the assignment of a reporter.

The proposal seeks to amend Article 231 of the Constitution to allow Indigenous people to freely produce and sell their goods, as well as mandate that the federal government provide technical support for these activities.

The new text proposes adding Article 231-A, allowing Indigenous peoples and their communities to “engage in any forestry or agricultural activities, as well as commercialize their production and enter into contracts, including leases and partnerships, where they will autonomously decide on the distribution of the resulting benefits.”

In their justification, the senators argue that “Indigenous people should no longer be treated as lesser citizens than other Brazilians”. “Currently, the Constitution adopts an outdated and protectionist view that, in practice, condemns Indigenous peoples to live in their perpetual ‘traditional’ poverty, even while sitting atop immeasurable wealth”, they state.

In a retrospective published in December 2024, Apib affirmed its vigilance, through “Congress Alert”, regarding the progress of these concerning proposals.

Positive Proposals for Indigenous Peoples

Apib also highlights bills considered “friendly to the Indigenous cause.” One of them is Bill 4347/2021, authored by former deputy Joenia Wapichana, now president of the National Foundation for Indigenous Peoples (Funai). This proposal establishes the National Policy for Territorial and Environmental Management of Indigenous Lands (PNGATI).

According to the text, the objective is to “ensure and promote the protection, recovery, conservation, and sustainable use of natural resources in Indigenous lands and territories, guaranteeing the integrity of Indigenous estate, improving the quality of life, and providing full conditions for the physical and cultural reproduction of current and future generations of Indigenous peoples, respecting their sociocultural autonomy.”

The bill was approved by the Committee of Environment and Sustainable Development (CMADS) of the Chamber of Deputies in June 2024 and is currently awaiting a report in the Committee of the Amazon and Indigenous Peoples.

Another proposal favorable to Indigenous peoples is Bill 3514/19, which regulates the professions of Indigenous Health Agent and Indigenous Sanitation Agent within the scope of the Indigenous Health Care Subsystem (SasiSUS).

Also authored by Wapichana, the bill has received favorable reports from the Health Committee and is currently under review by the Labor Committee of the Chamber of Deputies. Only after being approved by these committees and the plenary will the bill be sent to the Senate for consideration.

Translated from Portugues by Gustô Alves