- Across Brazil, orders known as land-use restrictions serve as temporary protective measures for the territories of recently contacted Indigenous peoples and those living in voluntary isolation.
- But while the measures are meant to allow time for the formal demarcation process to be carried out, they’ve now become an end to themselves, renewed repeatedly and failing to prevent the invasion and exploitation of these lands, says Brazilian federal public prosecutor Daniel Luís Dalberto.
- Dalberto told Mongabay in an interview that the measure is meant to be precautionary and accompanied by other protective measures by government agencies, such as monitoring work and operations to combat crime.
- He also raised concerns about the frequency with which issues affecting Indigenous territories are being raised to the country’s highest court, rather than being resolved at local courts and tribunals, which closes off an important front in the fight for fundamental rights.
The year 2011 marked the first time a land-use restriction order was enforced for the Ituna/Itatá Indigenous Territory, a swath of Brazilian Amazon roughly twice the size of Singapore and home to people living in voluntary isolation. The order was meant to protect the latter by prohibiting unauthorized individuals from entering — but rates of forest loss and invasions grew. In 2019, Ituna/Itatá was one of the Indigenous territories with the highest forest loss, primarily due to illegal land grabbers.
In Brazil, land-use restriction orders exist to protect isolated Indigenous peoples and are a temporary tool in cases where the demarcation process to formalize the protected status and boundaries of Indigenous territories are not yet complete. But as recent Mongabay reporting has shown, they’re often renewed many times over for years while the formal land titling stalls, and aren’t always effective at protecting isolated peoples’ lands from invaders.
Following one of the latest land-use restriction orders in 2022 for the Ituna/Itatá territory, the area lost 2,211 hectares (5,464 acres) of tree cover, or about 1.5% of its total area, according to satellite analysis by Mongabay. The most recent renewal was in 2025.
Brazilian federal public prosecutor Daniel Luís Dalberto, head of the office for recently contacted Indigenous peoples and those living in voluntary isolation, told Mongabay in a recent interview that while the legal measure is important, it should have “a short time frame, until the Indigenous territory is demarcated as quickly as possible,” and should be accompanied by other state protection measures, such as monitoring work and operations to combat crime. The orders are only meant to be precautionary, he added, and demarcation should follow soon after.
In an interview with Mongabay’s Aimee Gabay, Dalberto explained the purpose and importance of land-use restriction orders, why they’re often ineffective, and the dangers for isolated peoples. He also raised concerns about the increasing tendency for public prosecutors, public defenders and Indigenous peoples to take issues affecting Indigenous territories directly to Brazil’s Supreme Federal Court, or STF, rather than to local courts and tribunals. While the STF is important, he said, the suspension or dismissal of cases at lower levels means important fronts in the fight for fundamental rights are being closed off.
The following interview was translated from Portuguese and edited for clarity.
Mongabay: In our reporting on the Ituna/Itatá and Piripkura territories, and other Indigenous lands in Brazil that have not yet been demarcated, a pattern we observed is the implementation of land-use restriction orders, which do not appear to be effective in preventing invasions, land grabbing, and deforestation. What is the function of these land-use restriction orders, and why are they ineffective?
Daniel Luís Dalberto: Indeed, the history of these and other Indigenous lands with published land-use restriction orders demonstrates that the act is not sufficient to prevent invasions, land grabbing, illegal mining, and deforestation. A land-use restriction is a precautionary measure, immediately applicable, that attests to the state’s recognition of the existence or evidence of the existence of an Indigenous people living in isolation in that territory. This requires the state to protect that area from the entry of invaders and to take the legal steps necessary for the demarcation process to proceed. The decree informs the entire community that, from then on, they cannot claim ignorance about the nature of that territory and that entry is prohibited to safeguard the lives of the Indigenous people and even their own lives.
The land-use restriction orders, which, it should be emphasized, are absolutely necessary measures, should have a short time frame, until the Indigenous territory is demarcated as quickly as possible, observing the legal procedure. They have been effective in some situations or in some aspects, and not fully effective in others.
Without this instrument, the situation would certainly be even worse. However, a series of other measures is needed to protect these territories. Funai [the federal agency for Indigenous affairs] needs to provide trained personnel and financial resources for monitoring and inspecting the areas. It needs to initiate and complete the demarcation process; environmental protection agencies and bodies and the police need to fulfill their obligations to protect and combat crimes in these areas, a task complemented by the Public Prosecutor’s Office in the judicial aspect.
Mongabay: What protection does a restriction of use order actually offer to these territories? What is your opinion on this temporary measure?
Daniel Luís Dalberto: The restriction of use and subsequent demarcation are not discretionary acts but rather mandatory measures to safeguard the fundamental rights of isolated peoples in light of the state’s recognition that an Indigenous people in a vulnerable situation lives in a given territory, which triggers the obligation to adopt a series of measures as mentioned above. However, it is a measure that should be temporary and, by itself, does not guarantee protection, as we have seen. Once the presence of an isolated people is identified, demarcation and the adoption of protective measures for that territory are mandatory.
Mongabay: Land-use restriction orders are only temporary and subject to renewal every few years. But they seem to replace complete demarcation, which has been slow in these areas. Why has the demarcation process been so slow in Brazil?
Daniel Luís Dalberto: Land-use restriction orders should not be renewed so often, nor can they replace demarcation. However, we have seen orders being renewed and demarcation not being completed over decades. The case of the “Man of the Hole” [the sole known inhabitant of the Tanaru Indigenous Territory] is significant.
Land-use restriction orders [for Tanaru were] renewed from 1996 until his death in 2022, without the territory being demarcated, which does not negate the duty to demarcate, as we are claiming in a public civil action. The Kawahiva do Rio Pardo Indigenous Territory had its first land-use restriction order in 2001. In 2005, the Federal Public Prosecutor’s Office filed the first public civil action demanding demarcation. Only now, a few days ago, was the physical demarcation of the area finally completed.
From a normative standpoint, there is no justification for such slowness. However, in practice, it occurs due to several factors, among them the political and economic power of those who have interests contrary to that demarcation, since these are usually highly valued and coveted areas, often invaded by people who count on the passage of time and the fait accompli to guarantee rights over these lands, relying on state inefficiency in removing them from the areas.
It must also be said that Funai depends on the availability of human and financial resources to fulfill its functions, but this does not always happen due to the responsibility of successive governments and legislatures of the National Congress, as the long delays attest. Ultimately, these are all interconnected causes.
Mongabay: Based on your experience as a public prosecutor, which territories or isolated peoples are most impacted by the limited effectiveness of land-use restriction orders? And what is the danger in this?
Daniel Luís Dalberto: The Ituna-Itatá and Piripkura indigenous lands are worrying examples of areas with restricted use that should have already been demarcated and are extremely pressured and impacted by invasions.
However, we have demarcated Indigenous lands with the presence of isolated groups that also suffer from invasion pressures, such as the Awá-Guajá and Uru-eu-wau-wau, and also territories with references to isolated groups, which have not even been confirmed, that do not have land-use restriction orders, and suffer from the same process. This situation occurs in the Arc of Deforestation region, along the BR-319 highway and in other locations, mainly in Amazonas and Acre states.
The danger lies in the vulnerability of these groups to our society, as they may suffer violence, epidemiological contamination, and genocide without us even knowing.
Mongabay: Regarding issues affecting Indigenous peoples in Brazil, the existing legal instrument to combat or stop illegal omissions, or to challenge actions or laws that violate their rights, is the ADPF (Action for Declaration of Unconstitutionality by Omission), filed directly with the Supreme Federal Court (STF). There seem to be few alternatives besides presenting complaints to the STF. What do you think about this? What needs to change?
Daniel Luís Dalberto: In recent years, especially post-pandemic, ADPFs, direct and structural actions under the jurisdiction of the STF have been used and have been very important in protecting isolated and recently contacted peoples. They have also been used regarding other Indigenous rights and environmental issues. However, the role played by the courts and tribunals at the local levels where the events occur, in proximity to the facts, throughout the national territory, has always been fundamental.
These actions [at the local level] are initiated by public prosecutors, public defenders, and even local Indigenous peoples, who seek, through various procedural and even extrajudicial instruments and strategies, to give effect to the constitutional and legal norms that guarantee the fundamental rights of isolated and recently contacted Indigenous peoples. This system of protection and guarantee of rights has always worked and is well-established, with virtues and flaws. But in general, the justice system works very well.
However, observing some cases in which I work and also cases of colleagues from the Public Prosecutor’s Office, I have seen with concern that some first-instance judges have understood that if a certain Indigenous territory or a certain cause is being dealt with at the STF, then [local] actions to deal with these territories lose their purpose and are suspended or dismissed without a judgment on the merits. This recently occurred in the case of the “Man of the Hole” and in the Piripkura case.
I realize that the [federal government] and Funai are pushing for this to happen. I imagine because it’s better for them to respond to and deal with the cases in a single action. It’s bad that this is happening because important fronts in the fight for fundamental rights are being closed off. These are specific cases with evidence produced, with expert reports, with the possibility of instruction, detailed analysis of evidence, and the adoption of equitable measures, including some actions that have been in progress for many years and are already advanced, with the specificities of each case.
I believe that the ADPFs in progress before the STF have their place, their scope, and their area of action, as defined by law. [But] they are subsidiary in nature and abstract, and cannot address every case, every violation of rights that occurs in Indigenous territories almost daily.
So, in practice, gaps and rigidities are emerging. I believe there should be complementarity between the use of direct actions such as ADPFs and the handling of actions in the courts and tribunals of the country, according to their procedural and material admissibility, according to their competences. And this understanding and this practice, which is technical-legal, are lacking, ultimately hindering the guarantee of rights.
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