by Tainá Reis* and Vinício Carrilho Martinez**
Translated by Giovanna Imbernon
Edited and reviewed by Anna Paula Bennech
Constitutional transmutation is the legislative, legal, or administrative interposition in total disagreement with the Federal Constitution of 1988, whether in a twisted “understanding” (interpretation) of the precepts and constitutional rights or a “future attack,” that is, signed in the form of a bill. This is the discussion that arises from Bill 490 (PL 490, in Portuguese).
What do we know about Bill 490? We know that it comprises, essentially, the legalization of attacks against indigenous peoples in Brazil. However, before proceeding to the ‘understanding” of Bill 490, it is important to highlight what is the Constitution’s understanding of what indigenous peoples are.
First, they hold full constitutional rights as native peoples, consequently, they hold native rights.
Indigenous peoples were first in the territory before our so-called ‘civilizing process.’ They are not lancers in a quest for environmental degradation, instead, there are on the opposite way – and any anthropological analysis, reasonably consistent, shows indigenous people’s distinctive efforts to protect the environment.
This first remark corroborates the only possible constitutional interpretation, according to the constitutional comprehensiveness and, more specifically, to Article 225 of the Brazilian Constitution of 1998 (CF88), i.e., the constitutional unity. It means there is no reasonably fair Republic or society if indigenous peoples are evicted from their anthroposophy and anthropological collectivity (Article 213).
Second, and still, on the same track of constitutional investment, the Supreme Court became famous for its destructive vote against the indigenous peoples’ safeguard. The vote hereunder is long, however, vital. It highlights the major constitutional deficiency regarding the protection of native peoples:
“(…) a constitutional compensatory era for historically accumulated disadvantages, to be made viable by official mechanisms of affirmative action […] because the acculturation dealt with in the Constitution is not the loss of ethnic identity, but the sum of worldviews […] Constitutional realization of the value of community inclusion through ethnic identity […] the fundamental objective of section II of art. 3 of the Federal Constitution, ensuring a type of “national development” as ecologically balanced as it is humanized and culturally diversified, to incorporate the indigenous reality […] Indigenous land, in the collective aboriginal imagination, is not a simple object of law, but it takes on the dimension of a true being or being that sums up in itself all ancestry, all coetaneity and all posterity of an ethnic group […] The rights of Indians over the lands they traditionally occupy were constitutionally “recognized,” and not simply granted […] This is the reason why the Magna Carta has called them “originators,” translating a right older than any other […] to prevent the spirit from being decimated by the progressive elimination of the elements of a given culture (ethnocide).”
(Petition 3388, Rapporteur: Minister Carlos Britto, En banc session, 03/19/2009 – emphasis added)
There is no doubt that there must be an alignment between a legal common sense for defending the CF88 and its holders: the Brazilian people. In turn, however, the offenses against the constitutional logic continue, as we can see in the Bill 490 example.
Approval of the (un)constitutional
Discussions on the Bill 490 of 2007 were brought back into the spotlight fourteen years after its first proposal by Homero Pereira (PR/MT), already deceased and former member of the Chamber of Deputies. In 2021, Congressman Arthur Maia (DEM/BA), a member of the rural caucus and owner of cattle farms, proposed a new version of this bill. Another thirteen bills were attached to Bill 490. Approved on June 23 at the Constitution, Justice and Citizenship Committee (CCJ), the bill introduces several actions representing a setback to the indigenous peoples’ rights. One of them is the temporal landmark (marco temporal).
The temporal landmark defines that are only considered indigenous land (IL) the ones in indigenous peoples’ possession on October 05, 1988, when the Constitution was promulgated.
According to this thesis, must the ownership be proven?
What kind of proof? A deed? A document? Until 1988, the indigenous peoples were under the State’s guardianship. They were considered people with no full legal capacity. Back then, most of them had no contact with society at all. How were they supposed to prove the ownership? Land ownership of lands was occupied over decades and decades, and from when it was even harder to obtain a formal record of it.
The current legislation works like this: for the demarcation of land, a process must be filed at National Indian Foundation (FUNAI), an interdisciplinary team prepares a report, and the area is delimited. After the Bill 490 approval, all demarcated lands after 1988 or which are still under process will have to provide this proof of land ownership. And if there is no proof of it? They lose it. Simple: they are taking the indigenous lands already demarcated. The bill also comprises cases in which the Federal Government may take the indigenous lands from peoples who “lost their cultural traits” – whatever that means.
The bill also introduces some flexibility over the communication with uncontacted peoples. One of the bill’s articles states: “Regarding the uncontacted peoples, the State and society shall fully respect their freedom and traditional ways of life, avoiding contact as much as possible, except when medical assistance or intermediation of state actions of public interest are needed.” What is state action of public interest? No one knows it because the project does not include a definition of it.
Since 1988, respecting the uncontacted peoples has become a state policy; living uncontacted is their right. With Bill 490, this will end according to the public interest clause. We must remember that due to the isolated status, those peoples have no immunological memory, i.e., the flu can kill them.
The text also comprises the permission to exploit indigenous lands. Yes. It mentions taking areas of indigenous peoples’ exclusive use when there is mining or state interest in them, e.g., building hydroelectric power plants or roads. However, it is still not permitted by the Constitution. Article 231 of the Constitution says: “The lands traditionally occupied by Indians are intended for their permanent possession and they shall have the exclusive usufruct of the riches of the soil, the rivers, and the lakes existing therein.” Exactly because of this, we see many gold miners attacking indigenous lands. They want to exploit them, but they cannot do it. However, Bill 490 is going to change that.
It is an unconstitutional and genocide bill. Indigenous peoples’ rights are an entrenched clause of the Federal Constitution.
Nonetheless, the Bill is still pending before the National Congress. When one says, there is no neutrality of law. That is what we are talking about. The President of the Constitution, Justice and Citizenship Committee (CCJ, in Portuguese), Bia Kicks (PSL-DF), attempted several political maneuvers to carry out the voting and approve the bill.
When movements against the bill started at the beginning of June 2021, several indigenous groups from different ethnicities and from all over the country occupied the center of Brasilia. At that time, one of the buses going to the Munduruku people’s camp was attacked by gold miners. The camp Rise for the Earth carried out several activities, chants, and dances. On June 22, 2021, they protested peacefully. But what was the response of the Brazilian Government to the peaceful protests of indigenous peoples? Police, rubber bullets, tear gas. Three indigenous were hurt. On that day, the CCJ activities were suspended.
The next day, the bill was the only topic in the Committee’s legislative agenda. All the motions, points of order, requests for a public hearing were rejected by the committee’s president. They voted and the results were: 40 for and 21 against the bill. The CCJ passed the bill.
It was handed to the Chamber of Deputies on June 29. If approved, we will have the loss of indigenous peoples’ rights, constraints on land demarcation, reversion of demarcated land, and the possibility for mining exploitation. This means more deforestation, more environmental degradation. This is a destructive policy, a death policy, a genocide policy.
 Uncontacted peoples are those who keep no contact with or have a restricted relationship with white people and society.
Brasil. (2009, March 19). En banc session. Petition 3388, Rapporteur: Minister Carlos Britto,. Electronic Justice Gazette (Dje) 181, available on 09/24/2009, published on 09/25/2009, republished on DJe-120 available on 06/30/2009, published on 07/01/2010 Ement. Vol. 02408-02 PP-00229 RTJ VOL-00212-01 PP-00049).
* Dr. Tainá Reis: Ph.D. in Sociology from Federal University of São Carlos (UFSCar); Deputy leader of the research group TRAMA; Producer of the Youtube channel Lamparina, focused on disseminating scientific material and debates rurality and related topics; and Member of BRaS’s Constitutional Studies RG.
** Prof. Dr. Vinício Carrilho Martinez: Associate Professor at Federal University of São Carlos (UFSCar); Head of BRaS’s Constitutional Studies RG; Member of BRaS’s Academic Committee; Associate Editor of BRaS-J https://www.defesadacf88.ufscar.br