Minister Kassio Nunes Marques, of the STF (Supreme Federal Court), voted to reaffirm the time frame in the demarcation of indigenous lands, in a position that is in line with the interests of the Palácio do Planalto. Kassio was appointed to the court by President Jair Bolsonaro.
After Kassio’s vote, minister Alexandre de Moraes, the target of attacks by Bolsonaro in recent weeks, asked to be seen. The score is 1-1 so far. The court resumed on Wednesday (15) the judgment of the matter, with the continuation of the votes of the ministers.
Previous sessions were reserved for interventions by interested parties, including the Union, the Federal Public Ministry and entities that work in the defense of indigenous peoples.
At the opening of the works, in celebration of the Day of Democracy, celebrated this Wednesday, Minister Rosa Weber said that it is necessary to reaffirm the faith in the democratic regime in the face of “troubled seas in which we have been sailing”. “In a democratic republic, the Constitution and the laws all unite, level and equalize, as noted by João Barbalho, eminent minister of this Supreme Court,” said the minister.
Last week, the rapporteur of the matter, Edson Fachin, refuted the thesis of the time frame in the demarcation of indigenous lands. He stressed that a restrictive interpretation of the fundamental rights of indigenous peoples violates the Constitution and the democratic rule of law.
“Understanding that the Constitution solidified the issue by electing an objective timeframe for the attribution of the fundamental right to an ethnic group means closing the door once more on the full and dignified exercise of all rights inherent to citizenship”, he stated .
In Fachin’s assessment, in a 116-page vote, the indigenous right to land is fundamental and original, preceding the Brazilian State itself.
“In the name of traditional indigenous possession, it includes being null and void a valid ownership title or possession in these areas affected by the maintenance of the way of life of indigenous communities, consisting of a right originating from the ethnic group,” he said.
The rapporteur also stressed that, almost 33 years after the promulgation of the constitutional text, the indigenous peoples in Brazil remain, although the protection previously in force has ceased, “depending on administrative measures to see their right to land realized”.
And he highlighted the “progressive budget reduction and mitigation of the administrative force of management imposed on the autarchy [Funai] intended to effect the demarcations”.
The debate reached the Supreme after the TRF-4 (Federal Regional Court of the 4th Region), responsible for the three states in the southern region, using the rule of occupation or not of indigenous lands in 1988 to impose a defeat on the xokleng community.
At the time, Funai (National Indian Foundation) appealed the decision and it was in this appeal that the STF decided to fix the general repercussion. This means that the decision to be taken by the STF will apply to the entire country. Today, there are 82 processes stalled in the Judiciary awaiting a definition on the possibility of applying or not the temporal framework thesis.
The Attorney General of the Republic, Augusto Aras, defended that the establishment of a time frame for the demarcation of indigenous lands should be applied on a case-by-case basis and that there cannot be a linear rule for these disputes over areas claimed by traditional peoples.
Aras highlighted the importance of preserving the regions historically occupied by indigenous peoples and suggested that the Supreme Court approve a thesis to be followed by the other instances of the Judiciary that foresees that the demarcation of lands “has to be done in the specific case”.
By rejecting the idea of completely moving away from the time frame of the legal processes that discuss the ownership of land in dispute, the head of the PGR sent a signal to the ruralist bench in Congress and to President Jair Bolsonaro, who has criticized the thesis defended by indigenous peoples.
In recent statements, Bolsonaro has said that an eventual STF decision contrary to the time frame will cause a territory the size of the southern region to be added to indigenous reserves. According to him, the verdict could affect food production and inflation.
CHRONOLOGY OF THE DEBATE
fox Serra do Sol
In 2009, the STF gives a favorable decision to the indigenous people in the dispute with rice producers in relation to the Raposa Serra do Sol land, in Roraima. The court asserts that they were already at the site before the 1988 Constitution and are entitled to this area.
In 2013, the TRF-4 uses the thesis of land occupation before the promulgation of the Constitution to rule against the indigenous Ibirama LaKlãnõ, from Santa Catarina
Opinion defends time frame
The Michel Temer (MDB) government publishes an opinion to guide the public administration to recognize that indigenous people have the right only to lands that were already occupied by them in 1988
Fachin suspends opinion
Minister Edson Fachin, of the STF, suspends the validity of the opinion of the federal government that fixes the 1988 Constitution as a time frame to define the lands that must be demarcated
Time frame judgment
The STF begins the analysis of an appeal to the 2013 TRF-4 decision. The Supreme Court applied general repercussion to the case, which means that the thesis to be fixed will apply to all processes in the country that discuss the issue