Demarcation procedures in the past
The procedures for the demarcation of Indigenous Lands in Brazil have changed several times in the past recent years. See below a summary of what were the demarcation procedures from 1976 until January, 1996, when the current procedure was instituted by decree 1,775 (see "Demarcation process").
Decree 76,999, of January 8, 1976
Funai’s president appointed an anthropologist and an engineer or a land surveyor, who made the report, which contained the previous identification of the area limits. Funai’s president then approved the report - although the legislation did not specify it, that was done through a directive. Based on it, the physical demarcation of the area was carried out.
After demarcation, the process was submitted to the President of the Republic for homologation. The lands were then registered in the notary and in the SPU.
Decree 88,118, of February 23, 1983
Funai’s technical staff made the preliminary identification of the area, which resulted in a proposal made by Funai to a Grupo de Trabalho - Work Group - (GT) formed by representatives of ministries and of other federal and State organs, when deemed necessary. The GT emitted a conclusive opinion and submitted the process for the decision of the ministers of the Interior and Extraordinary for Land Questions.
If approved by them, the process was taken, along with a draft of a decree, to the President of the Republic, who would homologue the procedure and describe the limits of the recognized Indigenous area. The physical demarcation was then carried out based on the decree and, after that, registered in the notary and in the SPU.
In truth, however, there were two presidential decrees: in the first one, the president of the Republic simply delimited the area to be demarcated. Following the physical demarcation, the process returned to his hands for homologation through another decree. After that, the land was registered.
Decree 94,945, of September 23, 1987
The technical staff, which made the preliminary identification of the limits of the area, had the participation of representatives of Federal and State land organs, as well as other organs Funai deemed convenient. If the lands were located along an international border, the presence of a representative of the secretary-general of the National Security Council was mandatory.
Based on the work of the technical staff, Funai presented a demarcation proposal to an inter-ministerial GT, which emitted a conclusive opinion about it, which was submitted to the ministers of the Interior, of the Agrarian Reform and Development, and to the secretary-general of the National Security Council in the case of lands located along international borders. But, in fact, the secretary of the National Security Council decided all cases.
Once approving the judgement, the ministers emitted an inter-ministerial directive declaring the area of Indian occupation and describing its limits. Funai then carried out the physical demarcation, and once it was finished the process was submitted to the homologation by the President of the Republic. After that, the lands were registered in the notary and in the SPU.
Decree 22, of February 4, 1991
Funai created a GT of technicians, coordinated by an anthropologist, in order to proceed with the preliminary survey of the limits of the TI under consideration - the interested Indian group could take part in it - and elaborate a report with the characterization of the area to be demarcated. Once approved by Funai’s president and published in the Diário Oficial da União (DOU), the process was turned to the minister of Justice, who could demand additional information from other public organs. The minister then declared the land of permanent Indian possession, through a directive published in the DOU. If he did not approve it, he should re-examine the case within 30 days.
Next Funai, based on the limits established by the minister’s directive, could carry out the physical demarcation of the land. When necessary, INCRA should proceed with the resettlement of the non-Indian occupants of the land. When the demarcation was concluded, the process was submitted to homologation by the President of the Republic, through a decree published in the DOU, following the registrations in the notary of the corresponding judicial district and in the SPU.