From Squaller to Settler: Applying the Lessons of Nineteenth Century U. S. Public Land Policy to Twenty-first Century Land Struggles in Brazil

Intrator, Jessica
February 2011
Ecology Law Quarterly;2011, Vol. 38 Issue 1, p179
Academic Journal
Brazil's policies affecting its land in the Amazon region have assumed global significance, in part due to the pressing realities of deforestation and climate change. Domestically, the allocation and utilization of Amazonian land has important implications for Brazil's social and political stability, economic development, environmental conservation efforts, and cultural preservation efforts. The area known as the "legal Amazon" for planning purposes comprises more than 57 percent of Brazil's national territory; the manner of settlement and occupation of land in this region is a contentious issue. This Note explores the history of public land settlement in the Brazilian Amazon and the recent debates in Brazil over a federal law that enables about 300,000 current occupants of public land in the legal Amazon to acquire legal title. For perspective, the Note compares the potential consequences of this law to those of a series of retrospective titling laws passed in the United States during the half century leading up to the Homestead Act. The US. preemption laws sought to provide the opportunity for squatters on the U.S. public lands to acquire title without competition from moneyed speculators or corporate interests. Yet the U.S. preemption laws engendered severe criticism due to their inability to differentiate between bona fide settlers needing agricultural land to sustain a livelihood, and speculative interests taking advantage of the settlement laws purely for pecuniary gain. This Note demonstrates that a desire for the settlement laws to benefit bona fide settlers over speculators dominated the policy discourse and may have been a key element in the United States' transition from its early, limited preemption laws to a broader set of forward-looking preemption laws and eventually the Homestead Act. Similarly, the question of whether Brazil should embrace continued settlement in the Amazon region by awarding squatters with land ownership must be assessed in light of the policy preference to support land acquisition by poorer squatters, known as posseiros, as opposed to large- scale land speculators or land grabbers, known as grileiros. Some 35 percent of land in the legal Amazon is registered to private owners; yet a significant portion of these lands are presumed to be illegal landholdings of grileiros. The Brazilian government has reviewed thousands of these large land claims and has suspended title for those suspected to have been fraudulently or illegally claimed. Meanwhile, the vast number of small- scale occupations of public land in the legal Amazon by squatters or posseiros has fueled a grassroots movement for land reform and government recognition of the right to acquire title to occupied public land. The continued pressure to limit illegitimate, private claims to the public lands by grileiros raises the question of whether a contemporaneous policy that rewards encroachment on the public lands with the right to ownership will prove counterproductive to Brazil's goals. This Note suggests that in order for Brazil's public land distribution and land reform program to be successful, the law must contain mechanisms that protect the interests of its preferred beneficiaries, the posseiros. So long as ambiguities exist in the public land titling laws affecting the legal Amazon, sophisticated speculators will continue to take control of large areas of Amazonian land, endangering Brazil's goals for land reform, environmental conservation, and other objectives such as the demarcation of indigenous land and the creation of extractive reserves.


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