Brazil: Federal Decree Regulates FUNAI's Enforcement Powers
At A Glance
On February 3, 2025, Brazil’s Federal Government published Federal Decree No. 12,373/2025 (the “Decree”), regulating the enforcement powers of the National Foundation for Indigenous Peoples (FUNAI) on indigenous lands.
The Decree provides a non-exhaustive list of violations of the rights of indigenous peoples, including:
- Entry of non-indigenous people onto indigenous lands in violation of the law;
- Practices that violate the heritage and traditional knowledge of indigenous peoples;
- Installation of buildings or agricultural activities within indigenous lands in violation of the law;
- Removal of indigenous groups from their lands; and
- Violation of the exclusive use of natural resources originating from indigenous lands.
In the event of imminent risk to the rights of indigenous peoples, the Decree also grants FUNAI the authority to (1) order the removal of third parties from indigenous lands; (2) seize assets or close the facilities of offenders; and (3) destroy, render useless, or dispose of assets used in criminal practices, among other precautionary measures.
Notably, FUNAI already had specific regulations on its enforcement powers, such as Normative Instruction No. 5/2006. The Decree, however, is the result of a determination by Justice Luís Roberto Barroso, rapporteur of ADPF No. 709, who ruled that FUNAI's agents were not exercising their enforcement powers due to the allegedly generic nature of the regulation, in addition to the lack of resources and inadequate training of its agents.
The publication of the Decree comes at a time of growing tension regarding the demarcation of indigenous lands in Brazil, especially in the context of the Supreme Court rejecting the time limit requirement for the demarcation of indigenous lands, and the subsequent enactment of Law No. 14,701/2023 by the National Congress, reinstating the time limit requirement. Nevertheless, in order to effectively exercise its enforcement powers, it is expected that FUNAI will still need to establish its own administrative process to investigate violations and conduct the respective administrative sanctioning procedures.
The Environmental, Climate Change and ESG Practice of Tauil & Chequer Advogados in association with Mayer Brown is available to provide further clarification on this topic.
