BRASILIA – Earlier this month, Brazil’s Supreme Court heard arguments regarding land claims by Indigenous peoples who unequivocally state the claims are vital for their survival. The high court was weighing whether the Xokleng People had a valid claim after a lower court ruled that they were not in occupation of those lands when Brazil’s current constitution entered force in 1988, which is referred to as the marco temporal – or timeline mark. The Xokleng People argue they were displaced from those lands in the 1950s by tobacco farmers.
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.
Previous legal decisions and Santa Catarina state government actions have interpreted the constitution as recognizing the rights of Indigenous communities from the time of the constitution’s ratification in 1988. In other words, if Indigenous People cannot prove they were occupying the land on the day of the constitution’s ratification, October 5, 1988, then they no longer have rights to the land. That interpretation is supported by the far-right President Jair Bolsonaro and his government. It is also supported by the powerful agribusiness industry.
Voting on the chapter of indigenous rights in the plenary of the constitutional assembly in the national congress, Brasília, 1988 [public domain]
Bolsonaro made clear his views on the decision. “If the Supreme Court doesn’t maintain the 1988 timeframe,” he said, “it will kill agribusiness in Brazil, there will be no incentive to invest in agriculture.”
Indigenous rights groups disagree. They say there was no timeframe specified in the 1988 constitutional clause that guaranteed the right to ancestral lands. Thus, prior decisions are unconstitutional. They note that their ancestors were driven from their ancestral lands by European settlers who sought the valuable farmland before the ratification of the 1988 constitution. Now families of European settlers have lived on the land for decades and hold the legal title to it, a title created by the state.
Indigenous peoples from 170 groups rallied at the Supreme Court last month, praying and chanting that the Brazilian high court will make the honorable decision and recognize their claims to ancient ancestral lands. It was the largest Indigenous gathering in Brasilia since 1988, when the constitution was approved.
A member of an indigenous community takes part in a demonstration to protect their land on August 25, 2021 in Brasilia, Brazil. Over 6,000 indigenous people gathered at a camp in Brasilia summoned by Articulação dos Povos Indígenas do Brasil and marched up to the Supreme Court to protest against a court ruling which may define the demarcation of indigenous lands. (Photo by Andressa Anholete/Getty Images)
According to the Indigenous people who are defending these claims, they do not “own” the lands where they live, but they see themselves stewards of it for the common good. Indeed, Indigenous lands are a frequently final bulwark against deforestation.
The case before the Supreme Court focuses on the situation faced by the Xokleng People in Santa Catarina state. The court will decide whether lands currently inhabited by the tribe should be returned to the government of Santa Catarina from private rural property owners.
Xokleng Chieftain Wie Patte said “We weren’t living on our lands in 1988 because had we stayed there, we would have been exterminated. We would have been hunted down by the residents. They put a price on us. They paid people to kill us and bring our ears as proof.”
Rafael Modest, the attorney for the Xokleng People, said, “It’s a long dispute between the Xokleng People who reclaim their territory in the southern state of Santa Catarina and big landowners who say they have no rights because they weren’t occupying those lands in 1988 when the Constitution was approved. It will set jurisprudence for hundreds of their pending cases.”
On Sept. 10, Supreme Court Justice Edson Fachin rejected the thesis that 1988 represent a historical timeline limit and reaffirmed that Indigenous rights cannot be changed. “Indigenous territorial rights consist of a fundamental right of Indigenous peoples and are materialized in the original right over the lands they traditionally occupy,” Fachin said. Until 1988, he added, traditional populations were governed by a state that acted to “integrate” these peoples into Brazilian society, leaving Indigenous with no legal recourse against the theft of their lands.
Indigenous leaders issued a statement that the lower court ruling “is unfair because it disregards expulsions, forced removals and all the violence suffered by the Indigenous people until the promulgation of the constitution. Furthermore, it ignores the fact that, until 1988, they were protected by the state and could not enter the court in a proper manner to fight for their rights.”
The United Nations Office of the High Commissioner for Human Rights also issued a statement that the Brazilian Supreme Court must secure the rights of Indigenous Peoples to their lands and reject legal arguments by some businesses that want to exploit natural resources on traditional indigenous lands. “Acceptance of this [latter] argument would result in significant denial of justice for many indigenous peoples seeking the recognition of their traditional land rights, and under the Constitution indigenous peoples are entitled to the permanent possession of the lands they traditionally occupy,” said Francisco Cali Tzay, UN Special Rapporteur on the rights of indigenous peoples.
“The court’s decision will not only determine the future of these issues in Brazil for years to come, it will also signal whether the country intends to live up to its international human rights obligations and whether it will respect indigenous communities who were not allowed to participate in legal proceedings that revoked their land rights,” Tzay added.
Previous rulings from the Brazilian Supreme Court have assigned land to Indigenous Peoples that had been forcibly taken and occupied by large landowners (called fazendeiros) in the 1970s.
Indigenous people gather during a demonstration to protect their land on August 25, 2021 in Brasilia, Brazil. Over 6,000 indigenous people gathered at a camp in Brasilia summoned by Articulação dos Povos Indígenas do Brasil and marched up to the Supreme Court to protest against a court ruling which may define the demarcation of indigenous lands. (Photo by Andressa Anholete/Getty Images)
On September 15, the case was suspended. One member of the court supported the Indigenous claims to end the timeframe; the other member was against. Justice Alexandre de Moraes then requested more time to review the elements of the case.
For now, the case has been postponed without a future hearing date.
Meanwhile, the threats against Indigenous lands continue. A controversial bill, often referred to as a “land grab bill,” passed Brazil’s lower house in August and is being reviewed by the Brazilian Senate. If signed into law, the bill – PL 2633/20 – legalizes claims by squatters on public lands, including undesignated forests and Indigenous territories.
If the bill is approved, Indigenous leaders fear more violence as squatters begin to defend their claims.
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