The Federal Constitution of 1988 was the first in Brazil to recognize that indigenous people are the first and true owners of the lands occupied by them before the arrival of non-indigenous people.
According to the Constitution, indigenous lands are assets of the Union, which has the obligation to promote the demarcation of these territories in favor of their traditional inhabitants.
Demarcation is a complex administrative process, which has nine stages, from the initial identification and delimitation studies of the territory, to the interdiction of areas for the protection of isolated indigenous peoples.
Thus, it is the right of indigenous peoples to exercise permanent possession and exclusive use of the soil, rivers and all natural resources essential to the maintenance of their ways of life over these lands.
This framework of protection for native peoples, however, never fully materialized.
The Constitution gave a period until 1993 for all indigenous lands to be demarcated, but currently, there are more than 300 territories that are in an indefinite legal situation.
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A milestone in the attack on original rights
In this context, the growing violence suffered by Brazilian indigenous peoples could reach new heights, if the Federal Supreme Court (STF) endorses the so-called “time frame”.
The process that will be analyzed again by the ministers this Wednesday (1) concerns the possession of the territory of the Xokleng people, from Santa Catarina. This is a repossession lawsuit filed in 2009 by the state government regarding the Ibirama-Laklãnõ Indigenous Land (TI).
Severely criticized by indigenous organizations, the “time frame” is a legal thesis defended by ruralists that raises new barriers to the demarcation of lands from native peoples.
By the “time frame”, the territories can only be demarcated if the indigenous peoples are able to prove that they were occupying the area previously or on the exact date of the promulgation of the Constitution, on October 5, 1988, or if a conflict over the possession of the land is proven.
“Many were actually not on their land on that date because they were expelled, their land was taken over by farmers”, points out Samara Pataxó, legal advisor to the Articulação dos Povos Indígenas do Brasil (Apib).
“This perverse thesis disregards the history of violence to which indigenous populations were subjected before 1988, as well as the threats and murders that resulted in the expulsion of communities from their lands”, complements Antônio Eduardo Oliveira, executive secretary of the Indigenous Missionary Council (Cimi ).
Organizations and leaders warn that the consequences of the STF’s validation of the “time frame” may intensely deepen the genocide process experienced by native peoples.
Even communities that live on lands that have already been demarcated may be expelled if they cannot prove that they occupied the territory in the period established by the legal thesis.
This is because the Supreme classified the judgment of the “time frame” as having general repercussion. In other words, a jurisprudence will be created that will serve as a basis to judge all similar cases in other courts, defining the future of the next generations of Brazilian indigenous peoples.
“If the thesis is endorsed, we will have the demarcations halted and we will certainly have requests for revisions of lands already demarcated”, explains Paloma Gomes, legal advisor to the Indigenous Missionary Council (Cimi).
Land grabbers, loggers and miners, who see indigenous territories as a source of profit that has not yet been explored, can be even more encouraged to enter the preserved areas, adding to the growing statistics of land conflicts.
“We will have even more the absence of public policies aimed at indigenous peoples, we will have more violence, more expulsions of native peoples. In short, a process of absolute extermination of culture and indigenous peoples in our country,” adds the lawyer.
“Timeframe” is already in place
The thesis was used for the first time to question the demarcation of the Raposa Serra do Sol Indigenous Land, in Roraima. In 2009, the Supreme Court determined the continuous demarcation of the TI and the removal of the non-indigenous population, removing the need for native peoples to prove they were there in 1988.
“Although the decision was favorable to the indigenous peoples, this criterion began to be applied improperly and inappropriately in other demarcation processes that do not have any aspect similar to this specific process”, explains Samanta Pataxó, from Apib.
To get an idea of the damage that can be caused to the indigenous, it is enough to look at the cases in which the “time frame” has already served as the basis for judicial decisions that are unfavorable to the peoples.
A symbolic example is the Guyraroka Indigenous Land, belonging to the Guarani Kaiowá people, in the municipality of Caarapó, in southern Mato Grosso do Sul.
Surrounded by the planting of monocultures such as soy, corn and sugarcane, the community formed by 26 families had the administrative procedure for the demarcation of their land canceled in 2014 by the Second Panel of the STF based on the “time frame”.
The Guarani Kaiowá obtained a judicial victory in April of this year, when the STF itself accepted a judicial appeal and opened the way for reversing the annulment.
The definitive victory, however, has not yet arrived, as the merits of the action were not appreciated by the ministers. The recovery of the territory may be further away, if the “timeframe” is approved.
Although indigenous people are the main stakeholders in the rejection of the “time frame” by the STF, the matter is of general interest to Brazilian society.
Indigenous peoples are primarily responsible for preventing the degradation of Brazilian biomes, especially the Amazon Forest, which has broken annual records in deforestation, according to a United Nations report published in March this year.
The first inhabitants of Brazil are, therefore, natural allies of environmental preservation, the only remedy to circumvent the serious climate changes the planet is going through, such as global warming and the large concentration of carbon dioxide in the atmosphere.
Edition: Vivian Virissimo