BRASILIA – The Brazilian Supreme Court has delivered a decisive victory for Indigenous People in that nation. In the aftermath of the verdict, Indigenous communities throughout Brazil rejoiced, hailing it as “the landmark ruling of the century.” This decision holds immense global climate significance, as the establishment of Indigenous territories has consistently proven to be one of the most formidable defenses against deforestation in the Amazon.
The legal case stems from the establishment of Indigenous rights to hold their People’s land. The delineation of Indigenous lands was guaranteed by Brazil’s 1988 constitution. The constitution legally enshrined that Indigenous people have “original rights” over their ancestral lands. Brazil’s 1988 constitution asserts that Indigenous peoples are the “first and natural owners of the territory,” and notes that it is the nation’s duty to demarcate as Indigenous territory all lands that were originally inhabited by the over 300 tribes residing within modern Brazil’s borders.
Nonetheless, persistent legal challenges have emerged over the years from those seeking to exploit the Amazon and other critical ecosystems in Brazil. The challenges sought to capitalize on a legal loophole that questions the legitimacy of Indigenous People’s land rights unless it can be substantiated that they were occupying these territories at the time of Brazil’s 1988 constitution’s ratification despite many Indigenous communities having been forcibly displaced from their lands during the colonial period.
Many Indigenous communities have only recently been able to reclaim their original territories.
Voting on the chapter of indigenous rights in the plenary of the constitutional assembly in the national congress, Brasília, 1988 [public domain]
In other words, if Indigenous people cannot prove they were occupying the land, whether forcibly removed or not, on the day of the constitution’s ratification, October 5, 1988, then they would no longer have rights to the land. That interpretation was supported by the far-right President Jair Bolsonaro and his government who appointed justices to Brazil’s Supreme Court. It was also supported by the powerful agribusiness industry.
The social awareness and pressure regarding the pending decision had been palpable for months. In 2021, Indigenous peoples from 170 groups rallied at the Supreme Court, praying and chanting that the Brazilian high court would make the honorable decision and recognize their claims to ancient ancestral lands. It was the largest Indigenous gathering in Brasilia since 1988 when the current constitution was approved.
Members of the Indigenous community such as elder Yoko Kopacã a 72-year-old leader of the Indigenous communities and her family set up camp at the site to symbolize resistance and the fight for their land. Kopacã says: “I honor my ancestors; that’s why I’m in this fight, for the memory of my parents and grandparents who were killed and suffered from the Indigenous genocide in Santa Catarina.”
Last week, on September 21, Brazil’s Supreme Court affirmed the rights of Indigenous peoples to their ancestral lands by rejecting the “cutoff date” legal argument. This argument asserted that Indigenous communities should not be granted title to their traditional territories if they were not physically present on those lands on October 5, 1988, the day when Brazil’s current Constitution was enacted.
Nine of the Supreme Court’s 11 justices rejected the legal theory that the ratification date of Brazil’s Constitution, specifically Oct. 5, 1988, was the deadline for Indigenous peoples to have either already physically occupied land or be legally fighting to reoccupy territory.
The two justices voting in favor of the legal theory were appointed by former president Bolsonaro.
Brasilia: Supreme Federal Court of Brazil. [Photo Credit: Cayambe CC BY-SA 3.0]
Reactions from the Indigenous community were swift and jubilant. “I’m shaking. It took a while, but we did it. It’s a very beautiful and strong feeling. Our ancestors are present — no doubt about it,” said Jéssica Nghe Mum Priprá of the Xokleng-Laklano Indigenous group to the Associated Press.
“We’ve won the battle, but not the war,” Dinamam Tuxá, executive coordinator of Articulation of Indigenous Peoples of Brazil (APIB), said in Brasilia. “We will continue to fight for Indigenous territories to be demarcated so that the rights of Indigenous peoples are safeguarded and protected.”
Nduzi Gakran, a Xokleng president of Brazil’s first Indigenous environmental NGO said, “They put pressure on us in our region to intimidate our leaders and criminalize us … We have protected nature for millennia. He added, “I’m astonished because the Environmental Institute sued Xokleng. We defended our right, which is simply the right to the land. The map established the 37,000-hectare area; it just needed to be respected. Yet nobody respected it.”
Elder Kopacã was unambiguous about the meaning of the legal decision, the continuing struggle, and the role of Indigenous People in defense of the planet: “We are not protectors of nature; we are nature protecting itself.”
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