On Thursday (21), the plenary of Brazil’s Supreme Court ruled unconstitutional the so-called time frame thesis on Indigenous lands. Created by big landowners, the legal thesis prohibits the demarcation of areas that were not occupied by Indigenous peoples on the day Brazil’s 1988 Constitution were promulgated.
Nine of the Court’s 11 ministers agreed with the Indigenous peoples in recognizing that the Constitution does not provide for a time frame criterion to validate land demarcations. The only ministers who voted in favor of the thesis were those appointed by Jair Bolsonaro (Liberal Party): Nunes Marques and André Mendonça.
This understanding must be adopted by all the Brazilian courts, since the decision was classified by rapporteur minister Edson Facchin as of general repercussion. Therefore, the time frame thesis cannot be used by landowners to contest the Justice’s demarcations.
The Court did not rule on controversial topics raised by the ministers during the trial, such as compensations to the landowners and the liberation of mining in Indigenous lands. These issues will be decided next week.
The decision ends one of the most important chapters of the Indigenous movement in Brazil. The rejection of the time frame thesis was at the center of protests and mobilizations in recent years. Both Indigenous and non-Indigenous lawyers and jurists affirm that the thesis could become impossible 90% of land demarcation processes.
When defending the unconstitutional thesis, politicians and lawyers representing big landowners state that the time frame thesis would bring “legal security” to rural producers.
Although defeated in the Supreme Court, the time frame thesis is still being analyzed in Congress. Through a bill, the thesis was approved in the Chamber of Deputies and will probably be discussed by the Justice and Constitution Commission (CCJ, in Portuguese) in the Senate next Wednesday (27).
Indigenous people threatened by the time frame thesis celebrate the victory: “Now we can breathe again”
Indigenous leaders who live in areas threatened by the time frame thesis celebrated the Supreme Court’s decision. On Thursday (21), the Court declared unconstitutional the legal thesis presented by big landowners to restrict the demarcation of Indigenous lands. According to this criterion, areas that were not occupied by Indigenous peoples on the day Brazil’s Constitution was promulgated (October 5, 1988) couldn’t be demarcated.
Now, Indigenous communities trying to survive amid the most serious conflicts for land can have some relief. These conflicts caused many victims, including deaths among the Indigenous peoples. On one side, there are big farmers and big agribusiness companies. On the other side, there are Indigenous communities surrounded by gunmen who were hoping that a favorable decision would guarantee the future of the next generations.
“For the first time, we have a way to undo damages after 523 years (since Portugal invaded what we call today Brazil). The Court took the right decision. Now we can breathe. This is a victory for the movement”, said Daniel Vasques, leader of Aty Guasu, an organization representing the Guarani Kaiowá people.
In Mato Grosso do Sul state, the Guarani Kaiowá people are victims of a permanent state of human rights violations. In the last 20 years, over 100 Indigenous individuals have been killed. The state is known for Indigenous repossessions carried out after 1988. If the time frame thesis were validated, big farmers would be allowed to seek the expulsion of Indigenous families in Court.
The relief is also felt in the Guyraroká Indigenous land, which had the declaratory ordinance annulled by the Supreme Court based on the time frame thesis. Now that the legal criterion was invalidated, Indigenous peoples will be able to regain their territorial rights.
Edited by: Nadini Lopes