The jurist Carlos Frederico Marés analyzes the future of the Indian policies in the government of Jair Bolsonaro

The measures already announced and the proposals of the extreme right-wing president Jair Bolsonaro (PSL) for the indigenous population perpetuate a colonial policy already abolished, including international norms on the subject, says jurist Carlos Frederico Marés. He was president of the National Indian Foundation (Funai) between 1999 and 2000.

“It has to be called by its very name: it is colonial, in the sense that it colonizes the Indians, turning them into workers [in the colony] for the ‘metropolis’,” he points out, comparing the initiatives of the President of the Republic to the Colonial Pact, the set of laws that regulated the relationship between Portugal and Brazil.

One of the first measures of Bolsonaro was to transfer the demarcation of indigenous lands and quilombolas, which was entrusted by Funai and the National Institute for Colonization and Agrarian Reform (INCRA) for three decades to the Ministry of Agriculture, Livestock and Supply (Mapa) which currently has no capacity for technical studies, says the former president of the body.

Marés, who was also State Attorney General, teaches Agrarian and Socioenvironmental Law at the Pontifical Catholic University of Paraná. In an interview with Brazil de Fato, conducted by telephone, he pointed out that the transfer of the demarcation of lands was a way found by the government to circumvent a constitutional obligation of the State.

The Bolsonaro measure will affect at least 232 areas that were part of ongoing studies at Funai.

“What they are saying, transferring the demarcation to the [Ministry of Agriculture], is the following: ‘it is an obligation of the State to make the demarcation, but we will not do it’. Could a law be passed saying ‘let’s not do demarcation’ anymore, because as a candidate he [Bolsonaro] said there would be no further centimeter of demarcation for indigenous lands? No, because it is an obligation given by the Constitution. So what he does is place it on a ministry  that will not do demarcation. ”

FUNAI, remember Tides, was already in the process of weakening. Now, with the transfer to the Ministry of Women and Family, the agency must have more budget difficulties that account for the institutional needs of its policies.

Check out the full interview.
Demonstration during the 14th Free Terra Camp in Brasilia, 2017. Photo: NINJA Media / Indigenous National Mobilization

Brazil de Fato: What is the political significance of leaving the demarcations of indigenous lands for the Ministry of Agriculture, led by the ruralist Tereza Cristina?

Carlos Frederico Marés: It is not just today that forces opposed to the Indians, who understand that they must be integrated, try to remove the demarcation. They believe that if the land is not demarcated, there is no indigenous land.

For them, demarcation is the nerve center of this idea of ​​integration. But that is a misconception. They understand that once demarcated indigenous land, they are landowners and can be “Indians forever.” But this is wrong. First, because it is a colonial misconception that indigenous people should not have land and should integrate as rural workers into rural enterprises.

Secondly, because the 1988 Constitution and the international rules of indigenous peoples’ rights do not push the issue of demarcation.  Demarcation is important, but it is secondary. What is important is the concept of indigenous land. The Brazilian Constitution says very clearly that indigenous lands are those occupied by indigenous peoples – and defines more or less what this occupation is. That is, the indigenous land is indigenous, independent of the demarcation. The demarcation is a later process.

These anti-indigenous forces wanted to destroy the demarcation, at first with proposals to transfer the demarcation to Congress because there would be no new lands. Congress does not know, can not, has no competence to demarcate. And I would not.

The demarcation, prior to the 1990s, was much simplified because it was a direct application of the Constitution. From the demarcation decree, it became a bit more complicated. Always anti-indigenous ideas are to complicate the demarcation.

Now, can they simply say “no more demarcamos”? No, they can not say because the Constitution affirms that it is the obligation of the Brazilian State to demarcate indigenous lands.

Professor, another question that remains is with regard to the legality of this measure. Has the decision to transfer the jurisdiction of the demarcations by means of an interim measure legally binding?

The Ministry of Agriculture is an organ of the State. And the obligation is of the State. So whether the state will do it by the Ministry of Agriculture, Justice, Funai or will set up a special body for land demarcation, that’s fine. The state can choose how the demarcation will be made. Therefore, it would not be unconstitutional by an interim measure approved by law. Today, the definition of who makes the demarcation by law is based on  the 1997 decree of Fernando Henrique [Cardoso] who outlined the rite. This rite is maintained because, to change it, they would have to change the decree.

Does the Ministry of Agriculture have the capacity? Not today. You do not have the technical ability to do this. May have? You can, just hire people. So you’re going to have to call the FUNAI people. But FUNAI is in another Ministry, was placed in the Ministry of Women and Family.
Indigenous National Mobilization 2015 at Free Land Camp (ATL). Photo: Valter Campanato / Agência Brasil

And FUNAI was already in the process of being scrapped. How do you, who was in the chair of the organization, see this process and how it intensifies now?

Funai has long been scrapped. These are two problems.

The first is that the former Funai officials were self-sacrificing indigenous defenders. They were officials who liked and had connections with [indigenous] material. Then, from time to time, there were contests. They no longer asked if they liked the theme, it was a job like any other. And this is very bad from the point of view of the institution. In addition, there are very few contests. Then, FUNAI was getting weaker and more difficult.

In addition, resources have been decreasing. Funai because it operates in the most remote places and needs a budget that covers things other agencies do not require, such as airplanes. If FUNAI does not have a plane, it does not arrive in most of the villages. Funai is deeply rooted in distant places, so it needs structure that other organs do not have. Governments generally do not understand this and think it’s silly that FUNAI have such a structure. So, this has made it difficult.

Funai has been weakened, but it still has a high-quality staff, who work hard on the indigenous issue. And there is another force that other organs of State do not have: the natives themselves. The indigenous people have Funai as their organ and therefore are present, participate, do activities. Thus, FUNAI is, on the one hand, an organ weakened by the State; but, on the other hand, it has a very strong indigenous social movement. The fact of moving this weakened organ to an absolutely weak Ministry that has no budget is a problem and we will present great difficulties with Indian policies going forward.

What I want to say is: the demarcation is a detail. What they are saying, transferring the demarcation to the [Ministry of Agriculture], is the following: “it is an obligation of the State to make the demarcation, but we will not do it”. Could a law be passed saying “let’s not do demarcation anymore,” because as a candidate he [Bolsonaro] said there would be no more centimeter of demarcation for indigenous lands? No, because it is an obligation given by the Constitution. So what he does is put on an organ that will not do demarcation.

In addition to the transfer of the demarcation, the Minister Tereza Cristina defends the agricultural exploitation in indigenous lands and the thesis of the temporal frame. How will this vision of the government impact Indian policy?

It is colonial policy, from being a collective and becoming individual, workers, integrated into the capitalist “good life” of consumption. That is the proposal.

All these measures – lack of demarcation, the proposal of integration with agribusiness, all possible restrictions, the time frame, de-characterization of the peoples – are not to recognize the indigenous character of a people or to try to make it stop being indigenous. Turn them into rural workers, urban workers, etc.

However, they did not ask them, or they did not ask everyone. Can any group want to? I even know some kaigangs in Rio Grande do Sul who have agricultural activities, and in Mato Grosso there are also Indians with leases, where they explore the area themselves. But it is their will. It is not a state policy. The state policy has to guarantee the land and guarantee that they can decide what to do with the land.

What is being done is a colonial policy that strictly enforced until the end of the 20th century. And international norms already deny this colonial policy. And it has to be called by that very name: it is colonial, in the sense that it colonizes the Indians, transforming  them into workers for the metropolis.

Bolsonaro, once again, stated that “more than 15% of the national territory is demarcated as indigenous land and quilombolas and less than a million people live in these isolated places,” a common sense very often repeated when speaking about indigenous issues. How to rebut the argument?

Some lands today of the agricultural production people very little the national territory. If you make a simple comparison with agribusiness, how many people does it employ? Agribusiness has a very small number of workers in a very large area. The mode of production of agribusiness does not occupy land with people. It occupies the land without people, with machines.

This comparison, in my view, is bad because that’s not what we’re talking about. We are talking about different ways of life and land use. In fact, all indigenous and quilombola lands are filled not only with people, but with nature, animals, plants, are producing clean water, fresh air. Unlike the agribusiness that, in addition to expelling people, also expels nature. So they are completely different territories. The indigenous territories are producers of nature; the territories of the agribusiness, of profit.

Edition: Pedro Ribeiro Nogueira

Translation by Internationalist 360°

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