The Federal Constitution of 1988 was the first in Brazil to recognize that the indigenous pueblos are the first and true dueños of the lands occupied by them before the arrival of the non-indigenous.
According to the Constitution, the indigenous lands are the patrimony of the Union, which has the obligation to promote the demarcation of these territories in favor of their traditional inhabitants.
The demarcation is a complex administrative process, which has several stages, from the initial studies of identification and delimitation of the territory, to the prohibition of areas for the protection of isolated indigenous communities.
In this sense, it is the decision of the indigenous pueblos, the exercise of permanent possession and the exclusive use of their land, rivers and all the essential natural resources for the maintenance of their ways of life in these lands.
This framework of protection for the original pueblos, however, never materialized at all.
The Constitution has been created until 1993 for the demarcation of all indigenous lands, but currently there are more than 300 territories that are in an indefinite legal situation.
A hit in the attack on the original rights
In this context, the growing violence suffered by the indigenous peoples of Brazil could reach new levels, if the Federal Supreme Court (STF) decides on the so-called “time frame”.
The process that was newly analyzed by the ministers of this mystery 1 refers to the possession of the territory of the Xokleng pueblo, in the state of Santa Catarina. This is a property recovery action presented in 2009 by the government of the state that refers to the Indigenous Land (TI) Ibirama-Laklãnõ.
Hardly criticized by indigenous organizations, the “time frame” is a legal thesis defended by ruralist parliamentarians that raises new barriers to the demarcation of lands from the original pueblos.
In the “time frame”, the territories are demarcated only if the indigenous populations were able to demonstrate that they occupied the area previously or in the exact closing of the promulgation of the Constitution, on October 5, 1988, it is confirmed that there is a conflict for the property of the land.
“Lots of land in their lands and land closed because they were expelled, their lands were taken by landowners”, says Samara Pataxó, legal advisor of the Articulation of Indigenous Peoples of Brazil (APIB).
“This perverse thesis unmasks the history of violence to the ones that were subjected to indigenous settlements before 1988, as well as the threats and assignments that resulted in the expulsion of communities from their lands”, adds Antônio Eduardo Oliveira, executive secretary of the Consejo Indigenista Misionero (CIMI).
Organizations and leaders advise that the consequences of the validation of the “time frame” by the Federal Supreme Court can deeply deepen the process of genocide experienced by the original pueblos.
Even the communities that live in lands that have been demarcated can be expelled if they cannot believe that they will occupy the territory during the period established by the legal system.
This is due to the fact that the Supreme Court classified the sentence of the “time frame” as having general repercussion. In other words, a jurisprudence will be created that will serve as a basis to judge all similar cases in other courts, defining the future of the next generations of indigenous peoples in Brazil.
“If the theses are refrained, the demarcations will be interrupted and we will certainly have requests for revision of lands and demarcated lands”, explains Paloma Gomes, legal advisor to the Misionero Indigenous Council.
Land loggers, lumberjacks and miners, who see indigenous territories as a source of greed that has not yet been exploited, may be more motivated to enter preserved areas, in addition to growing conflict statistics for lands .
“We will have a more lack of public policies aimed at indigenous pueblos, we will have more violence, more expulsions of original pueblos. In short, this is a process of absolute extermination of culture and indigenous pueblos in our country”, adds the law.
El “time frame” ya practica
This theory was used for the first time to question the demarcation of the Raposa Serra do Sol Indigenous Land, in the state of Roraima. In 2009, the Supreme Court determined the continued demarcation of the indigenous land and the removal of the población in the indigenous, eliminating the need for the original pueblos to demonstrate their presence in 1988.
“If the decision was favorable to indigenous pueblos, this criterion began to be applied in an undue and inappropriate manner in other demarcation processes that did not have any aspect similar to this specific process”, explains Samanta Pataxó, from APIB.
In order to have an idea of the harm that can be caused to the indigenous, it is enough to look at the cases in which the “time frame” has served as the basis for unfavorable court decisions for the pueblos.
A symbolic example is the Guyraroka Indigenous Land, belonging to the Guaraní Kaiowá pueblo, in the municipality of Caarapó, in the south of the state of Mato Grosso do Sul.
The community formed by 26 families, and surrounded by the same monocultures as soy, maize and sugarcane, and the administrative procedure for the demarcation of their lands canceled in 2014 by the Second Panel of the STF based on the “time frame” .
Los Guaraní Kaiowá obtained a judicial victory in April this year, when the same STF accepted a judicial appeal and opened the path to revert the nullity.
The final victory, without embargo, has not yet been reached, and the ministers will not appreciate the merits of the action. The recovery of the territory may be more open if the “time frame” is approached.
If the indigenous populations are the main interested party in the rejection of the “time frame” by the STF, the topic is of general interest to Brazilian society.
Indigenous groups are primarily responsible for preventing the degradation of Brazilian biomes, especially the Amazon jungle, which has beaten annual deforestation records, according to a United Nations report published in March this year.
The first inhabitants of Brazil are, therefore, natural allies in the preservation of the environment, the only remedy to sort out the serious climate changes that cross the planet, such as global warming and the large concentration of carbon dioxide in the atmosphere.
Edition: Vivian Virissimo