Time Frame thesis: Supreme Court starts to judge the future of demarcation of Indigenous lands this week

The judgment, scheduled to occur virtually between June 11 and 18, will establish an interpretation of the legal framework for Indigenous Lands and the rights of native peoples over their lands

Foto: Valter Campanato/Agência Brasil Foto: Valter Campanato/Agência Brasil

The Supreme Court will begin on Friday, June 11, its judgment of the case that will define the future of Indigenous Lands in Brazil. The court will analyze a land repossession case filed by the Santa Catarina state government against the Xokleng, Guarani and Kaingang peoples involving an area that is part of the Ibirama-Laklanõ Indigenous Lands. In 2019, the Supreme Court granted the case “general repercussion” status, meaning the ruling would set a precedent for the federal management of land demarcation procedures and all lawsuits on the subject.

The court justices will also analyze the order issued by Justice Edson Fachin in May last year to suspend the effects of Legal Opinion 001/2017 of the Attorney General’s Office. This opinion established the so-called “time frame” thesis, among other things, that has been used by the federal government to suspend and attempt to roll back the demarcation process. In this decision from last year, Fachin suspended, until the end of the Covid-19 pandemic, all legal proceedings that could result in evictions or in the annulment of demarcation procedures. This order will also be reviewed by the court.

The “time frame” is an interpretation, defended by the rural lobby and sectors interested in exploring Indigenous Lands, that restricts the constitutional rights of indigenous peoples. According to the thesis, these populations would only be entitled to land that was in their possession on October 5, 1988 – the date of the promulgation of the Constitution. Alternatively, if they were not inhabiting the land at this time, they would have to prove the existence of a legal dispute or material conflict on this date.

The thesis is unfair because it ignores the expulsions, forced evictions and all the violence suffered by indigenous peoples before the promulgation of the Constitution. Furthermore, it overlooks the fact that until 1988 these peoples were under the legal protection of the State and they could not file lawsuits independently to fight for their rights.

“We hope that the Supreme Court will adopt a fairer, more reasonable interpretation that will help enforce our rights. And stop using the “time frame” thesis to limit the recognition of our rights as indigenous peoples, which has been happening for the past ten years,” said Samara Pataxó, a lawyer at APIB (Association of Indigenous Peoples of Brazil).

“This case is important because it will shape the perception, the understanding of ownership and the rights of indigenous peoples to their territories. But it could also strengthen our struggle in this confrontation with the other branches of government that use the ‘time frame’ as a criterion to restrict our rights as indigenous peoples,” she added.   

The judgment will be virtual, a format in which the justices cast their votes electronically without reading or debating them. It is scheduled to take place between the morning of Friday, June 11, and the following Friday, June 18. However, there are no guarantees that it will be concluded within this period, because the justices can request an adjournment, either through a request for more time to analyze the case or a request for the case to be judged by an in-person session of the court. In both cases, the judgment would be halted and postponed until a later, unspecified date (learn more in the table at the end of the article).

Alarming delay

“The delay in the demarcation of indigenous lands is very alarming. Because, with each passing day, there are more difficulties in the way of land demarcation in Brazil. Indigenous peoples need to have their ancestral rights recognized,” said Brasílio Priprá, one of the top Xokleng leaders. “And we want the ‘general repercussion’ to be judged, in our favor, and for all talk of the ‘time frame’ to stop,” he added.

Priprá stressed that the demarcation of Indigenous Lands is essential not only for the survival of native peoples, but also for the conservation of the environment and the sustainability of all Brazilian society. “[Demarcation will] keep the water, the air and the environment cleaner than it is today. What we cannot do is burn and destroy the forests and spoil the water, thinking that this will produce something positive for us in the future. It won’t,” he concluded.

The Ibirama-Laklanõ Indigenous Land is located between the municipalities of Doutor Pedrinho, Itaiópolis, Vitor Meireles and José Boiteux, 236 kilometers northwest of the Santa Catarina state capital of Florianópolis. The area has a long history of demarcations and disputes that occurred throughout the whole of the 20th century, when its size was drastically reduced. More recently, in 2001, the area was found to belong to the Xokleng tribe in studies by the National Indian Foundation (FUNAI) and this was declared official by the Ministry of Justice in 2003. The indigenous people never stopped their claim over the land.

“The people lost the territory in the most violent, awful and vile way,” said Rafael Modesto, a lawyer from the Xokleng community who is also a legal adviser at CIMI (Indigenous Missionary Council). “At the beginning of the last century, demarcation was done without any technical criteria. In the 1920s, a significant part of the territory was lost. The same thing happened in 1950. After that, a dam was built on the best land. This is the context behind the dispute of the Xokleng tribe, to guarantee that this stolen land is returned,” he said.

Modesto explained that at the time it was common for ranchers interested in the Xokleng territory to hire specialized gunmen, called “bugreiros”, to hunt and kill indigenous people. The killing was proven by the ears cut from the victims.

Understand why the case in the Supreme Court can define the future of indigenous lands

The Supreme Court recognized the “general repercussion” status of the Special Appeal No. 1,017,365. This means that the ruling in this judgment, scheduled to start on June 11, will have repercussions on all indigenous peoples in Brazil. The Supreme Court could, therefore, establish a definitive solution for all conflicts involving indigenous lands in the country.

What is Special Appeal No. 1,017,365 about?

The Special Appeal with General Repercussion No. 1,017,365 pending in the Supreme Court is a land repossession claim filed by the Santa Catarina State Environment Institute against FUNAI and indigenous peoples from the Xokleng tribe involving an area of the Ibirama-Laklanõ Indigenous Land. The disputed territory was reduced in size over the course of the 20th century and the indigenous peoples never gave up their claim to it. The area has already been identified by FUNAI’s anthropological studies and declared by the Ministry of Justice to be a part of their ancestral land.

Why is this judgment key to the future of indigenous peoples in Brazil?

In a decision on April 11, 2019, a full bench of the Supreme Court unanimously recognized the “general repercussion” of Special Appeal No. 1,017,365. This means that whatever is decided in this case will serve as a precedent for all cases involving indigenous lands at all levels of the Judiciary.

There are many land demarcation cases and ownership disputes involving Indigenous Lands that are currently in the courts. There are also many legislative measures that attempt to remove or dilute the constitutional rights of indigenous peoples. By accepting the “general repercussion” status, the court also recognizes that there is a need for clarification on the matter.

When and how will the judgment occur?

The judgment was placed on the agenda of the Supreme Court by the rapporteur of the case, Justice Edson Fachin, for the period between June 11 and June 18. It will take place virtually, in a format in which the justices cast their votes electronically without reading or debating them. Fachin will cast his virtual vote first and the other justices will have six business days to do the same.

There is no guarantee that the judgment will be concluded within the scheduled dates. Before it even starts, the rapporteur can remove the case from the agenda. Furthermore, both parties to the case and any of the justices can request the case to be judged by an in-person session of the court. The justices can submit such a request at any time. The parties to the case, meanwhile, can do this up to 48 hours before the start of the court session and it must be accepted by the rapporteur. If it occurs before the start of the judgment, the request will withdraw the case from the virtual format and submit it to an in-person session of the court. If the request is made after the judgment has started, the case must be placed on the agenda again.

Another possibility is a request for more time to analyze the case, which can be made by any of the justices, with the acceptance of the rapporteur. In this case, the judgment can continue in the virtual format once the records of the case are returned. The justice who requested more time must submit the records for the judgment to continue, within 30 days (extendable for another 30 days), counting from the date of the publication of the judgment minutes. However, the deadlines are not always respected and some cases are halted for years. These deadlines are also suspended during the Supreme Court recess. For either type of adjournment request, the judgment would be suspended and transferred to an unspecified date.

What is at stake?

Ultimately, what is at stake is the recognition or rejection of the most fundamental right of indigenous peoples: the right to land. There are, in short, two main theses that are currently under dispute: on the one hand, the so-called “indigenato” theory, a legislative tradition that dates back to the colonial period and that recognizes the right of indigenous peoples to their lands as an “ancestral” right – i.e. one that precedes that State. The Federal Constitution of 1988 follows this tradition by guaranteeing indigenous people “the ancestral rights to the lands they have traditionally occupied”. On the other hand, there is a restrictive proposal to limit the rights of indigenous peoples to their lands by reinterpreting the Constitution based on the so-called “time frame” thesis.

There is also the possibility of reviewing the so-called “institutional safeguards”, known as “conditions”, that were established in 2009 in the judgment of the case involving the Raposa Serra do Sol Indigenous Land and that also restrict the ownership and the exclusive use of indigenous peoples over their lands.

What is the “time frame”?

The “time frame” is a legal thesis that restricts the constitutional rights of indigenous peoples. According to this interpretation, defended by the rural lobby and sectors interested in exploring ancestral lands, indigenous peoples would only be entitled to land demarcation if they had ownership of the land on October 5, 1988. Alternatively, if they were not inhabiting the land, they would have to prove the existence of a legal dispute or material conflict on the same date of October 5, 1988.

The thesis is perverse because it legalizes and legitimizes the violence to which indigenous peoples were subjected until the promulgation of the Constitution of 1988, especially during the military dictatorship. Furthermore, it also ignores the fact that until 1988 indigenous peoples were under the legal protection of the State and did not have the autonomy to fight, legally, for their rights. This is why indigenous peoples have been saying, in campaigns and demonstrations: “Our history does not begin in 1988!”

What might the consequences of this judgment be for indigenous peoples?

If the Supreme Court upholds the ancestral nature of indigenous rights and, therefore, definitively rejects the “time frame” thesis, hundreds of conflicts across the country will move closer to a solution and dozens of lawsuits could be immediately resolved.

The 310 indigenous lands that are stuck in some stage of their demarcation process would, in theory, be free to conclude their administrative proceedings.

On the other hand, if the Supreme Court rules in favor of the anti-indigenous “time frame” thesis, it will end up legalizing the intrusions and violations that occurred in the past against native peoples. It could unleash a flood of other court decisions annulling demarcations, with the subsequent outbreak of conflicts in pacified regions and the escalation of conflicts in areas where they have already erupted.

Such a ruling could also prompt a new wave of invasions and intrusions into demarcated lands – something that is already happening in many regions of the country, particularly in the Amazon.

Moreover, there are a number of isolated tribes that have still not been confirmed by the State, i.e. that are still under analysis – a lengthy procedure due to the no-contact policy. If the 1988 time frame is approved, many lands of isolated tribes will not be recognized, which could lead to the extermination of these peoples.

There are other cases, such as the Kawahiva people, which was only recognized as an isolated tribe by the Brazilian State in 1999, i.e. long after 1988. How would things stand for these peoples? Besides, it is not even possible to contact them to find out if they were living there in 1988.

Will the indigenous peoples participate in the judgment?

The rapporteur of the case, Justice Edson Fachin, endorsed the broad participation of all sectors interested in the matter, given the importance of the case. This participation takes the form of amicus curiae – a Latin term meaning “friend of the court” – that permits people and organizations with an interest in and knowledge of the topic to contribute in legal cases by providing the court with information. Amicus curiae status was granted to more than 50 contributors, among them several indigenous organizations and communities. In addition, the Xokleng community itself will also participate, given that it is directly affected by the case.

What is the environmental and climatic importance of Indigenous Lands?

In addition to being essential for the physical and cultural survival of indigenous peoples, Indigenous Lands play a key role in environmental conservation. The large areas of native vegetation conserved on Indigenous Lands are responsible for maintaining essential ecosystem services, such as climate regulation and rainfall, maintenance of groundwater sources, soil stability and fertility, pest and disease control, among others. All these functions are beneficial not only for agriculture and livestock, but also for industry and cities.

These territories are the best preserved of all the areas officially protected by law, and they are recognized by research as the main barriers against deforestation and the expansion of the agricultural frontier. In the Amazon, nearly 98% of their total area is preserved. Outside this region, Indigenous Lands are usually home to what little native vegetation remains.

Indigenous territories cool the surface and influence global atmospheric and ocean circulation, helping to lower the planet’s temperature. For example, the substitution of forests with grassland or agricultural crops results in an increase in the regional temperature of 6.4oC and 4.2°C, respectively. This changes the regional water cycle, putting quality of life, agriculture and livestock at risk.

The temperature differences between the areas inside and outside the Xingu Indigenous Territory, in the northeast of the state of Mato Grosso, for example, can be as much as 4oC to 8oC, according to a study by the Amazon Environmental Research Institute (IPAM). Outside the territory, it is warmer due to deforestation.

Nearly 5.2 billion tons of water are transpired every day by the trees in the Indigenous Lands of the Amazon. For the sake of comparison, the volume flowing into the Atlantic Ocean from the Amazon River is just over 17 billion tons per day. The volume of water supplied by the forests of the Amazon’s Indigenous Lands would fill all the water tanks that exist in Brazil nearly 80 times every day.

In the Brazilian Amazon, indigenous communities protect and oversee areas that store 27% of the region’s carbon stocks, representing approximately 13 billion tons. This amount does not include the carbon stored in the soil, which has, on average, a stock of between 40 and 60 tons per hectare. This carbon retention by forests helps to contain the accumulation of CO2 in the atmosphere, with positive effects on reducing global warming.

Is there “too much land for too few Indians in Brazil”? Do indigenous territories take away land available for Brazilian agriculture?

Considering all the ecosystem services provided by Indigenous Lands, they are essential for the maintenance of Brazilian agriculture.

Also, it is not true that there is “too much land for too few Indians” in Brazil; in other words, it cannot be said that demarcations undermine the stock of land available for agriculture.

Including the demarcation processes in progress at FUNAI, nearly 14% of Brazilian territory currently consists of Indigenous Lands, but more than 98% of this total is in the Amazon, much of which in remote areas where agriculture and livestock farming is not practical. Outside the Amazon, where most of the country’s agricultural GDP is located, Indigenous Lands occupy something like 0.6% of the territory. By contrast, according to 2017 data from the IBGE statistics institute, 41% of all Brazilian territory consists of private rural establishments.

Furthermore, there is a huge disparity in the distribution of the population on Indigenous Lands. Of the 517,300 people who live in these protected areas, according to the IBGE Census from 2010 (latest official data available), 62% were in the Amazon, while the other 38% were located in the remaining 2% of all the Indigenous Lands located outside this region, the equivalent of less than 21,000 km2, even including the demarcation processes in progress at FUNAI.

In some of the key states for Brazilian agribusiness, the amount of land occupied by Indigenous Lands is insignificant compared to the size of the territory, such as São Paulo (0.3%), Minas Gerais (0.2%) and Goiás (0.1%), again taking into account the demarcation processes in progress at FUNAI. In states where land conflicts are more prevalent, the total amount of Indigenous Lands does not even cover 1% of the territory, such as in Bahia (0.5%), Santa Catarina (0.8%), Rio Grande do Sul (0.4%) and Paraná (0.6%). In Mato Grosso do Sul, the percentage is 2.4%, according to IBGE and ISA data.

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