Protecting Brazil’s Unprotected

Brazilian indigenous rights lawyer visits Eugene

Photo by Todd Cooper

Despite being safeguarded by the Brazilian Constitution, indigenous peoples’ rights are being violated in that South American country.

With different culture and language and as part of a marginalized group with little money, indigenous people have poor access to the Brazilian justice system. This is where Juliana de Paula Batista from the Instituto Socioambiental (ISA) steps in.

De Paula Batista is a lawyer at ISA in Brasilia, the Brazilian capital. She works to protect indigenous rights in the justice system. She spent two weeks in Eugene recently with the Environmental Law Alliance Worldwide (ELAW) in September.

De Paula Batista says she was here to strengthen her knowledge of U.S. indigenous laws and improve her litigation efforts as well as increase her network of environmental lawyers who might help with future cases. Her visit comes at a convoluted moment in Brazilian politics, with Jair Bolsonaro as president.

Brazil elected Bolsonaro last year. One of his campaign promises was that he would no longer demarcate indigenous lands and, instead, seize them for production. That promise, however, is unconstitutional.

According to the 1988 Brazilian Constitution, Brazilian indigenous tribes have access to their land due to occupying the national territory before the first Portuguese colonizers arrived in 1500.

Instead of safeguarding the tribes’ rights in the constitution, says de Paula Batista, Bolsonaro wants to seize indigenous land and give it to companies that do extractive mining, soy farming and cattle ranching.

Killian Doherty, an attorney from ELAW, followed de Paula Batista during her time here and has also studied Brazilian environmental law. He says there is a long process of allowing mining companies to occupy indigenous land.

“Brazil’s Constitution doesn’t allow mining on indigenous lands unless Congress expressly authorizes it by law, after hearing the indigenous communities affected and their participation in the results shall be assured,” Doherty says.

De Paula Batista says the discussion goes even beyond the Constitution. The land designated for these communities is small compared to the land donated by the federal government to big farmers, she says.

“We can’t say that there’s a lack of land in Brazil and therefore Indigenous lands hamper the development, for example, since only in the Amazon we have more than 40 million hectares of public land to be used by private companies,” de Paula Batista says in an interview conducted in Portuguese.

Another big issue, she says, is that the ruralist stand in the Brazilian Congress is strong and influential. They’re able to lobby for big farmers to have more access to free land, and they’re able to do illegal practices without proper justice.

“We have a political class super-represented in Congress, which is the ruralist stand. And the ruralist stand historically has a pretension of expansion of the agricultural and livestock borders,” she says.

The Amazon fires in late August were an illegal practice that has been particularly relevant in the international community. According to media reports, the area burned in the Amazon basin is the size of Texas. Many indigenous groups live in secluded areas of the Amazon, making the fires and overall destruction of the forest a threat to them.

The volume of fires was also much higher than in previous years.

According to Brazil’s National Institute for Space Research (INPE), the number of fires throughout the forests in Brazil rose 83 percent compared to the same period last year, amounting to more than 72,000 burning spots.

Burning soil is part of the process of “re-setting” the soil, de Paula Batista says.

“First, there’s deforestation. Then, after you deforest and take timber for, generally, illegal extraction, you burn, because burning is the way of cleaning the rest of the vegetation to substitute that area of the forest to put on cattle or soy or another agricultural product,” she says.

According to environmental group Greenpeace, 18 percent of the Amazon has been destroyed by deforestation in the past 40 years — an area the size of California — giving way to farming, ranching and mining companies.

Bolsonaro blamed the Amazon fires on non-governmental organizations.

Before the Amazon fires started, INPE was already doing research on the deforestation of the Amazon. When INPE released data that the Bolsonaro administration had higher levels of deforestation compared to previous governments, the president fired the director-general of the institute, Ricardo Galvão.

For more secluded indigenous groups, having their rights taken away can be a fatal threat, de Paula Batista says. Most live off the land itself and depend on the health of the ecosystem. If the ecosystem is taken away from them or compromised due to pollution, their lives are in danger.

For other groups, however, this can be even more drastic. Three groups are currently in “voluntary isolation,” de Paula Batista says. One of them, according to Amnesty International, is the Ayoreo Totobiegosode. This means that these groups choose not to interact with people outside their community. With their lands being claimed back by the government, they are very susceptible to diseases. Even smallpox could kill them, de Paula Batista says.

This has happened in the past. In the 1980s, the tribes in the Uru-Eu-Wau-Wau tribal land suffered significant losses in their community due to contact with people outside their tribe.

According to ISA, “The population went from 250, in 1981, to 89 in 1993, particularly among the Jupaú people. About two thirds of them were killed off as a result of conflicts and a series of diseases that struck their villages, principally respiratory infections.”

The Jupaú are one of the sub-groups that live in the Uru-Eu-Wau-Wau land, according to ISA.

In the United States, indigenous rights are secured by other means, especially treaties. Tribal sovereignty is also secured by the U.S. Constitution.

ELAW’s Doherty also says, “U.S. law already allows for mining on indigenous lands” if “both the tribal government and the federal government approve.”

But according to the International Work Group for Indigenous Affairs (IWGIA), while indigenous groups in U.S. soil are sovereign, the government still has substantial power over their nations.

“Recognized native nations are sovereign but wards of the state. The federal government mandates tribal consultation, but has plenary power over indigenous nations,” reads the IWGIA website.

In Brazil, however, the Constitution protects the indigenous groups’ rights, making it very complicated for the federal government to revoke their rights.

During her visit, de Paula Batista visited the Makah tribe, Quileute and Lower Elwha Klallam Reservations, the (lower) Elwha Dam removal site and the Columbia River Inter-Tribal Fish Commission in Portland. She also talked to professors, local lawyers and natural resource economist Ernie Niemi.

Ultimately, de Paula Batista went back to Brazil with “a bigger proximity with the team at ELAW, with the lawyers, the technical team. These inter-institutional relations between ISA and ELAW are strengthened and potentialize our efforts and exchange of information and technical subsidies for the defense of the environment, the Amazon forest and the indigenous people.”

EW intern Renata S. Geraldo is a University of Oregon journalism student from Brazil.