It is no coincidence that the analysis of the time frame is considered “the judgment of the century” for indigenous peoples in the country. The vote, which is scheduled to resume this Wednesday (30) at the Federal Supreme Court (STF), puts land demarcations at risk, leaving people who have already had their traditional areas formally recognized insecure. Therefore, on the eve of the resumption of the discussion between the ministers, the climate is one of expectation and anxiety.
The temporal framework thesis states that indigenous peoples would only have the right to claim lands occupied in 1988, when the Constitution was enacted. The resumption of discussions this Wednesday is yet another chapter in a debate that has been going on in the STF since 2021. So far, the vote is 2 to 1 against the time frame (i.e., in favor of the rights of indigenous peoples). The last stoppage took place on June 7, due to a request for a review by Minister André Mendonça.
Lawyer Maurício Terena, legal adviser to the Articulação dos Povos Indígenas do Brasil (Apib), says that the delay in the trial has opened doors for the violation of the rights of indigenous peoples, since the lack of definition increases conflicts over land. Terena points out that the thesis of the temporal framework has no constitutional technical support.
“Our expectation is that the Federal Supreme Court will guide the judgment, and the ideal would be that it ends once and for all, declaring unconstitutionality. This thesis does not find any constitutional legal or technical support”, he summarized. “We have high expectations, we are going to take indigenous leaders to follow the judgment. We also hope that there is a public debate on the issue of the time frame”.
Despite the high expectations for a result, Terena does not rule out a new request for a review, which could cause the discussion to drag on for a few more months. The posture of Minister Cristiano Zanin, who has demonstrated conservative positions in his first manifestations at the Supreme Court, is viewed with caution.
“He recently came back in an ADPF (Arguição de Descumprimento de Preceito Fundamental) that we sent to the Supreme Court, and it was a very bad vote, in the sense of not knowing the ADPF. We are a little apprehensive, we knew that Zanin was not so close to the agendas of social struggles, and his last vote left us with a ‘yellow light on.
For lawyer Juliana de Paula Batista, from the Instituto Socioambiental (ISA), the Supreme Court already has “sufficient maturity” to judge the issue. In recent years, ministers have been assisted by many entities that were included in the process as amici curiae (in Portuguese, “friends of the court”, who offer subsidies for discussions), which guarantees a good volume of information for decision-making. decision.
“We expect the Court to carry out the main function of a constitutional court, which is to protect the rights of minorities. the majority, exercise this function of the countermajoritarian power, which will protect the rights of minorities. If we leave these rights only in the hands of the majority powers, they are easily crushed”, he pointed out.
The Legislative Power, by the way, has already shown its claws in the theme of the time frame. In recent weeks, the bill (PL) 2903/2023 advanced in the Federal Senate, which wants to legalize the thesis that traditional communities only have the right to territories already occupied or disputed before 1988. For the lawyer, this movement is a response to discussions at the Supreme Court.
“They (parliamentary) only started moving this PL after the STF began this judgment, in an attempt to embarrass the Court. The greatest expectation is to see a Court that is not intimidated and that does not bow to this type of demand, which is an authoritarian demand, a demand from the extreme right, which caused democracy to remain convalescing for four years”, he evaluated.
‘It is an unconstitutional thesis’
Also a lawyer, the executive coordinator of Apib, Dinamam Tuxá, reinforces the argument about the unconstitutionality of the timeframe thesis. For him, the issue should not even be being discussed at the Supreme Court. However, given the current discussion, it is essential that the STF take a stand in favor of the rights of indigenous peoples.
“It is a congenital right, which precedes the very formation of the Brazilian State. When talking about and dealing with original rights, there is no need to talk about a framework. The constitutional text did not bring a framework defining the period within which indigenous peoples would have the right. On the contrary: he guaranteed indigenous peoples their original rights. And that is what we are pleading: that they recognize our original rights over our territories”, he summarized.
Dinamam Tuxá expressed concern with the proposal presented by Minister Alexandre de Moraes, who, by voting against the thesis of the temporal framework, defended the payment of indemnities to people who acquired “in good faith” property titles issued by the State, in a kind of “means of term” for the discussion.
“The indigenous peoples will be at the mercy of an indemnity to be paid to the landowner to have their territory. We know that we have a budgetary problem. And this ‘middle ground thesis’ disregards the original right of the indigenous peoples, disregards any injury that the indigenous peoples suffered, and will reward land invaders, people who acquired this area in good faith or not”, he pointed out.
Anxiety and optimism
With just a few days left for the resumption of the discussion at the Supreme Court, the vice-coordinator of the Coordination of Indigenous Organizations of the Brazilian Amazon (Coiab), Alcebias Constantino Sapará, summarized his current feeling by saying that he is experiencing “a positive and distressing anxiety”. He highlights the importance of the presence of indigenous leaders in the midst of discussions with the Judiciary.
“We are training our young people, training our lawyers, training our teachers, training our health agents, people who take care of our territory and, above all, strengthening our base. All struggles come with their challenges, and in recent years, they have challenged us more and more, but we remain resistant”, he pointed out.
Alcebias points out that some ministers have positions and understandings that are favorable to the indigenous struggle, while others are in the opposite direction. In this balance, and in the midst of the struggle of the original peoples, he bets that the time frame thesis will be defeated.
“We trust, yes, that the Brazilian Judiciary, and that one day the National Congress, can recognize our rights. We resisted for 523 years and we will resist for another 523 years. Our history will pass from generation to generation, We are a people of great resistance,” he concluded.
understand the judgment
The timeframe thesis is analyzed by the STF through Extraordinary Appeal (RE) 1017365, which evaluates the case of the indigenous people of the Xokleng people, from Santa Catarina. Among other points, ruralists argue that the framework would be a way of regulating article 231 of the Federal Constitution. The excerpt from the Magna Carta points out that “the Indians are recognized for their social organization, customs, languages, beliefs and traditions, and the original rights over the lands they traditionally occupy, and it is incumbent upon the Union to demarcate them, protect and ensure respect for all their assets. “.
“This argument is associated with a possible greater guarantee of legal certainty (for landowners) in the demarcation of indigenous lands. In our point of view, legal certainty also needs to be interpreted along with the original rights to indigenous lands”, opposes the legal adviser Pedro Martins, from the organization Terra de Direitos, who monitors the progress of the process in the STF.
:: After articulation of the ruralist caucus, the time frame for the demarcation of indigenous lands is approved by a Senate committee ::
*With collaboration with Murilo Pajolla
Editing: Thalita Pires