Federal deputy Celia Xakriaba celebrates the decision with elder Isabela Xokleng. Photo: Scarlett Rocha
Federal deputy Celia Xakriaba celebrates the decision with elder Isabela Xokleng. Photo: Scarlett Rocha

The Federal Supreme Court (STF), on the afternoon of this Thursday, 21st, decided to refute, by majority, the thesis of Time frame as a criterion for the demarcation of indigenous lands. Nine ministers – Edson Fachin (rapporteur), Alexandre de Moraes, Cristiano Zanin, Gilmar Mendes, Luís Roberto Barroso, Dias Toffoli, Luiz Fux, Rosa Weber and Carmen Lúcia – understood that the right to land by indigenous communities does not depend on the fact that they are occupying the place on October 5, 1988, the date of promulgation of the Federal Constitution. Two ministers, Nunes Marques and André Mendonça, disagreed. The trial began in August 2021 and is one of the largest in the history of the STF. It lasted for 11 sessions, the first six by videoconference, and two were dedicated exclusively to 38 statements from the parties to the process, interested third parties, the Union's attorney general and the attorney general of the Republic.

It is a historic victory for Brazilian indigenous peoples, who have been fighting for 30 years for the Brazilian State to fulfill the commitment made in 1988, when the new Federal Constitution was adopted: to complete the demarcation of lands in five years. The result of the appeal judgment will serve as a parameter for the resolution of at least 266 similar cases that are suspended, according to the STF press office.

THE HYPOTHESIS

The Temporal Framework that was being judged by the STF was a very dangerous legal thesis, which threatened not only the integrity of Brazilian indigenous peoples, but also the environment (the natural surroundings of indigenous territories, and protected by them), and mobilized the indigenous peoples of the whole country. Many people showed up in Brasília to watch the appeal. Leaders came from the Northeast, Southeast, South and North of the country. The so-called Temporal Framework was the name given to Extraordinary Appeal (RE) 1017365, in which the STF plenary discussed the definition of the legal-constitutional status of ownership relations in areas of traditional indigenous occupation (and since when this occupation should prevail).

The Marco Temporal hypothesis, now rejected by the majority of the STF, preached that indigenous peoples would have the right to currently occupy only the lands they occupied or were already disputing on the date of promulgation of the 1988 Constitution. It was opposed to the theory of indigeneity, according to the that the right of indigenous peoples over land predates the creation of the Brazilian State, and it is only up to the latter to demarcate and declare territorial limits. Deputies linked to agribusiness now speak of “legal uncertainty” with the decision and promise to extend it in Congress.

TRADITIONAL TENURE

The ministers who confirmed the theory of indigeneity agree with the rights of original peoples. The rapporteur of the case, Edson Fachin, recalled in his vote that Brazilian legislation on the protection of indigenous ownership has established, since 1934, a sequence of protection in Constitutional Letters. According to Fachin, indigenous territorial rights, provided for in article 231 of the Constitution, aim to guarantee the maintenance of their conditions of existence and dignified life, which makes them fundamental rights. According to the same provision of the Constitution, traditional indigenous possession is distinct from civil possession and covers, in addition to the lands inhabited by them permanently, those used for their productive activities, those essential to the preservation of environmental resources necessary for their well-being and those necessary for their physical and cultural reproduction, according to their uses, customs and traditions. “In the case of indigenous lands, the economic function of the land is viscerally linked to the conservation of survival conditions and the indigenous way of life, but it does not function as a commodity for these communities,” he highlighted.

Ministers Nunes Marques and André Mendonça, who voted in favor of the Marco Temporal, defended a reconfiguration of indigenous rights in the country. For Nunes Marques, traditional possession should not be confused with immemorial possession, requiring proof that the area was occupied on the date of promulgation of the Constitution or that it had been subject to expropriation, that is, that the indigenous people were expelled as a result. of conflict over ownership.

Minister Dias Toffoli considered that the 1988 Federal Constitution, when guaranteeing indigenous people the right to traditional lands, was based on the people's own conception of their territory, to allow the occupation to be established according to their uses, customs and traditions. Cristiano Zanin stated that the 1988 Constitution is clear in providing that the guarantee of permanence on traditionally occupied lands is essential for the realization of the basic fundamental rights of these peoples. Alexandre de Moraes argued that, if the Temporal Framework hypothesis prevails, the demarcation of lands belonging to a community forcibly removed from the site before the promulgation of the Constitution would be impossible. Minister Rosa Weber explained that the rights of these people over the lands they occupy are fundamental rights that cannot be mitigated and added that the notion of traditional ownership does not end with current possession or physical possession of the lands.

The specific case that gave rise to the trial arose in a repossession requested by the Santa Catarina Environmental Institute (IMA), which claimed an area located in part of the Sassafras Biological Reserve (SC), declared by the National Foundation of Indigenous Peoples (Fundação Nacional dos Povos Indígenas) ( Funai) as well as traditional indigenous occupation. In the appeal, Funai contested the decision of the Regional Court of the 4th Region (TRF-4), for which it was not demonstrated that the lands would traditionally be occupied by indigenous people and confirmed the sentence in which the reintegration of possession was determined.

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