Indigenous peoples's rights to their land
The new Constitution was innovative in every sense, establishing above all that the Rights of the Indians to the lands they traditionally occupy are of an original nature, in the sense that they are original to the land, prior to the formation of the Brazilian state or government, existing independently of any official recognition.
The text in force gives a constitutional category or status to the concept of indigenous lands, which is defined as follows in paragraph 2 of Article 231:
"Lands traditionally occupied by the Indians are those that they have inhabited permanently, used for their productive activity, their welfare and necessary for their cultural and physical reproduction, according to their uses, customs and traditions."
These characteristics, therefore, define a specific area of land as being indigenous. Once these characteristics are present, and are verified in accordance with the uses, custom s and traditions of indigenous people’s the right to the land by the community that occupies it is an existing right and its legitimized independently of any constitutional act. In this sense, the demarcation of indigenous land, the result of recognition by the state, is an act that merely states or declares that said land is indigenous, and its objective is simply to delineate the real extension of their title to ensure the full efficacy of the the constitutional ruling and the State has the obligation to protect these indigenous lands
With regard to Indigenous lands, the Constitution of 1988 stipulates further that:
- they are included as part of the assets of the union;
- their use is specified for the permanent holding and title by the indigenous peoples;
- all juridical acts that affect this ownership and title are nullified and extinct, except the relevant public interest of the federal government;
- only the indigenous people can utilize and have the right to use the assets derived from the soil, the rivers and the lakes in these areas;
- the use of the water power resources, including energy potential, research, assays and mining claims can only be valid with the authorization of Congress, after a hearing with the communities that are affected, and the community is assured a participation in the results of the mining activities on their lands’;
- new ordinary legislation (not constitutional change) is needed to specify the conditions for mineral exploration and the use of water resources on indigenous lands;
- the indigenous lands cannot be sold, mortgaged or encumbered in any way and are unavailable for said activities; and the right to these lands by the respective indigenous peoples can never expire;
- it is prohibited to remove the Indians from their lands, except in exceptional and temporary conditions, as stipulated in § 6º - Article 231.
In the Transitory Constitutional regulation, five years was stipulated as the time frame for the demarcation of all the indigenous lands . This deadline was not honored, and the demarcations are still a matter that is still pending.