The Indigenous Lands Rights Timeframe Case before the Brazilian Supreme Court deals with the issue of whether indigenous communities can claim only the lands that they were already occupying on the date the Brazilian Federal Constitution came into force—October 5, 1988. This argument is defended by the Parliamentary Front for Agribusiness—also known as the ‘Rural Caucus’ in the National Congress—and by entities linked to agricultural and cattle-raising activities, whereas indigenous peoples fear losing the right to occupy and use lands that are in the process of demarcation.

The case reached the federal Supreme Court after decades of national discussion about the demarcation of indigenous lands in Brazil. The Rural Caucus and like-minded entities have been consistently opposing such demarcation for considering it an outrage to the right to property and an obstacle to land development. In the opposite side, the indigenous peoples have continuously requested the consolidation of indigenous lands rights, as established in Article 231 of the 1988 Constitutional Text.

Historical remarks about indigenous peoples in Brazil

In Brazil, what we call ‘modernity’ began with the arrival of the Europeans in America for colonization purposes, who used the excuse of bringing ‘civilization’ to establish organization models based on exploitation and plundering. The colonizers and their successors see themselves as the ones who developed the corners of the country, which once were only vegetation, to become civilized places. As a result, indigenous peoples are not seen as creditors of this process, but only as representatives of a past time associated with backwardness and failure. 

In this vein, when Brazil declared its independence from Portugal, the idea of indigenous peoples as historical, idyllic, and animalistic peoples was—and still is—deeply rooted in the national mindset and permeated the ensuing pedagogical model for many years.

Indigenous peoples claims in the case

Brazilian indigenous peoples allege they have an original right to land because they were occupying the land well before the creation of the national State. Furthermore, they hold that the proposed timeframe ignores the indigenous peoples who have been dispossessed of their lands since the beginning of the colonial era in 1500 through violence or as a result of rural and urban expansion. Consequently, it would be impossible for indigenous peoples to occupy certain territories at the time the Federal Constitution was promulgated. 

They also argue that certain lands are means for connecting with their ancestors, for conserving their own culture, and for surviving the unbridled urban and rural expansion that is taking place in Brazilian territory. Thus, they are claiming areas that are still meaningful to their specific social organization.

Claims in favor of the expiration timeframe for indigenous lands rights

The Rural Caucus and like-minded entities are in favor of the timeframe. As there is no set deadline for the creation of indigenous lands, they argue that new lands can only be demarcated in favor of indigenous peoples who were already occupying the disputed territory on the date of the entry into force of the Federal Constitution. This argument is based on the interpretation of the phrase “traditionally occupy” used in Article 231 of the Constitution in the following context: “The social organization, customs, languages, beliefs and traditions of Indians are recognized, as well as their original rights over the lands they traditionally occupy“. The Rural Caucus submit that the rejection of their thesis  would result in impediments to “national development”, “free initiative” and the exercise of “productive activities for the benefit of all”.

The legal status of indigenous lands

In Brazil it is common to hear “there is too much land in the country for too few Indians”. Such expression generally supports the following propositions: a) indigenous communities hold too much land; b) indigenous lands fall short of their productive capacity, are underutilized, and constitute an obstacle to development, either because indigenous peoples are incompetent to exploit them properly, or because the current legislation hinders their exploitation; and c) indigenous lands adjacent to the national frontiers are susceptible to invasion, putting national sovereignty into risk. This type of argument is sustained by the groups interested in the natural resources of the indigenous lands, which in turn have been supported by the mass media and certain members of the judiciary.

According to the Federal Constitution, indigenous lands are spaces traditionally occupied by indigenous peoples; it is the Federal State’s responsibility to demarcate them, and to protect and ensure respect for all their resources. The lands belong to the Federal State, but indigenous peoples have an exclusive and permanent right to explore and exploit the natural resources and the right to practice their customs therein. It is worth noting that indigenous lands can be occupied by more than one ethnic group and are demarcated in accordance with the procedure laid down by Decree No. 1775 of 1996.

It should also be noted that the above-referred constitutional provision and the indigenous lands timeframe concern only traditionally occupied indigenous lands, as it is possible to create new indigenous lands in Brazil following a certain procedure. Once demarcation has been approved by the Ministry of Justice, occasional ‘non-Indians’ residing in those lands will be re-settled through the National Institute of Colonization and Agrarian Reform (INCRA). As the last step, the President of Brazil should decide on the approval of the new indigenous land by decree.

We may further note that, in February 2019, the federal Supreme Court held that Extraordinary Appeal No. 1.017.365/SC, which deals with the constitutionality of the creation of an indigenous land for the Xokleng, constitutes a binding precedent for future similar cases. The holding is important because many demarcation and possessory disputes concerning traditional lands are currently pending before various courts, while several legislative projects that aim to remove or relativize indigenous constitutional rights over land are being considered.

Conclusion 

In our view, the judgment to be rendered by the federal Supreme Court should acknowledge the obvious: indigenous peoples who live in Brazil are Brazilians and they deserve to occupy and use the lands they have traditionally occupied. Sometimes, the obvious is hard to acknowledge: the timeframe thesis, besides being embarrassing, is a real absurdity: The history of indigenous peoples in Brazil did not begin only with the promulgation of the Federal Constitution in 1988 and the Supreme Court cannot ignore this fact.

Alvaro de Azevedo Gonzaga, Professor of Law, Pontifical Catholic University of Sao Paulo

Felipe Labruna, University Researcher, Pontifical Catholic University of Sao Paulo