Indigenous Land Demarcation in Brazil Reverts to FUNAI

By Contributing Reporter

RIO DE JANEIRO, BRAZIL – The president of the Senate, Davi Alcolumbre, decided to disregard part of Provisional Measure (MP) 886, edited by President Jair Bolsonaro, who one week ago once again tried to assign the task of demarcating indigenous lands from the National Indian Foundation (FUNAI) to the Ministry of Agriculture .

The remainder of the MP will proceed as usual. Alcolumbre argued that the Constitution does not allow two MPs on the same topic to be submitted within the same legislative period.

Alcolumbre considered the amendments to be “not written”: “I am considering the amendments […] to be not written and returning them to the president,” he said. “I would like to point out that Article 62 of the Constitution is very clear when it states that it is forbidden to reissue, in the same legislative session, a Provisional Measure that has been rejected or that has lost its validity by expiration”, he added.

Transferring demarcations to the Agriculture portfolio was included within the administrative restructuring carried out by the federal government in January. However, in May, the change was not passed by Congress, which restored the task to FUNAI, linked to the Ministry of Justice and Public Security.

However, the president has not given up, even though Congress rejected it. With a new MP published on the eve of last week’s extended holiday, Bolsonaro has once again tried to transfer demarcation decisions on indigenous territories to the Agriculture Department.

The Brazilian Constitution precludes the re-editing of a Provisional Measure when the National Congress has rejected it in the “same legislative session.”

Federal Supreme Court’s (STF) Justice Luís Roberto Barroso likewise ruled this section of the MP unconstitutional on Monday when he granted an injunction, based on a suit filed on June 20th, by political parties PT, PDT, and Rede Sustentabilidade.

Barroso justified the decision because the MP contravenes a previous congressional decision. “The transfer of powers for the demarcation of indigenous lands was also rejected in the current legislative session. Therefore, the debate […] cannot be reopened by a new provisional measure. If such a case were to be admitted, a final decision would never be reached, and there would be a clear violation of the principle of separation of powers,” the justice explained.

“The final word on the content of the conversion law falls to the National Congress, which acts, in this case, in its typical and primary role as a legislator. The legal invaidity of the presidential proposal is therefore unequivocally established,” said Barroso.

The justice’s ruling granted a restraining order but will still need to be analyzed by the full Supreme Court’s.