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Brazil’s Federal Supreme Court postpones decisive trial; indigenous peoples keep their resistance against the Marco Temporal thesis

A case that could seal the future of indigenous peoples returns to the Supreme Court’s voting agenda in August, when the international recognition of indigenous peoples is celebrated

 

Brasília, June 30, 2021 – Brazil’s Federal Supreme Court (STF)’s ended its session today without ruling the case on the demarcation of indigenous lands. The Chief Justice, Luiz Fux, stated that the case will return to the Court’s agenda in August 25th, after the July recess (from 2 to 31).

Camped for weeks in Brasília and in other territories across the country, the indigenous people expected the Court to analyze the repossession lawsuit filed by the government of Santa Catarina against the Xokleng people, concerning the Ibirama-Laklãnõ Indigenous Territory, where the Guarani and Kaingang peoples also live. With the status of “general repercussion,” the ruling will serve as a guideline for the federal government and all instances of Justice, as well as a reference to all proceedings, administrative procedures and legislative bills in regard to demarcation procedures.

“Sadly, the general repercussion was not ruled, but we will keep up our fight, as always, for the demarcation of our lands and in defense of the environment. The Supreme Court has pledged to schedule the trial for August, and we will continue our mobilization. The shows disregard to indigenous rights, and we do not have it,” warns Brasílio Priprá, leader of the Xokleng people.

The postponement of the decision reinforces the urgency of the struggle waged by the indigenous peoples. “We have to keep resisting. We must keep up our fight with the same energy. August has to be the month of our struggle!,” said Kretã Kaingang, executive coordinator of the Association of Indigenous Peoples of Brazil (Apib) and one of the organizers of the Rise for Earth Camp, which has gathered more than 850 indigenous people from 50 nations in the Brazil’s capital since June 8.

The month of August is marked by the international recognition of indigenous peoples and, according to Sonia Guajajara, Apib’s executive coordinator, the fight for rights continues across the country, until the new date of the trial. “We are here today once again call all for the ‘Indigenous August’. We will return to Brasília in August to fight against all these setbacks, against all these anti-indigenous measures that are being processed within the three levels of Government.”

Marco Temporal
The Time Limit Trick, know as Marco Temporal in Portuguese, is a pseudo-legal interpretative framework developed by political sectors – such as the agribusiness lobby – which seek to limit Indigenous land rights in order to enable the economic exploitation of Indigenous territories. In blatant opposition to the constitutional norms which enshrine Indigenous territorial rights, the “Temporal Mark” framework postulates that Indigenous peoples are only entitled to the lands they occupied on the date of the promulgation of the Brazilian Federal Constitution – i.e. October 5th, 1988. Alternatively, if they were not physically on the lands, they would need to have been part of a legal dispute or in a material conflict proven by the area on that same date.

In addition to contradicting the Brazilian Constitutional framework – which does not establish any temporal limitations to Indigenous land rights – this hypothesis is unfair, as it disregards expulsions, forced removals and all the violence Indigenous peoples have endured before the Brazilian Constitution was enacted. Furthermore, it ignores the fact that, until 1988, Indigenous groups were under the tutorship of federal government, and lacked the autonomy to file lawsuits in their own name.

The adoption of the as a criterion for a time limit trick demarcation of indigenous lands is also one of the points provided for by Bill 490, a bill that was strongly opposed by the indigenous peoples over the past weeks.

Approved by the Commission of Constitution and Justice (CCJ) of the Chamber of Deputies, Bill 490, which incorporates a series of other attacks on indigenous constitutional rights, can be put on the agenda at any time.

“We didn’t lose heart when the voting was postponed, nor when Bill 490 was approved by the Commission. This is not the first time our rights have been put at risk. We are resistance and we will keep on fighting. Despite all these attacks, we’re chanting and fighting, and that’s how we’re going to win,” guarantees Juma Xipaya, a leader of Middle Xingu, in Pará.

Postponements
The trial was previously scheduled for June 11, but was suspended after Minister Alexandre de Moraes requested the matter to be discussed in a separate, more detailed plenary session only one minute after the trial began. The other ministers didn’t even cast their votes. Nonetheless, the vote of the rapporteur, Minister Edson Fachin, was made public.

The chief justice, Luiz Fux, put the case back on the agenda this Wednesday (30), and is expected to be resumed in August 25th, according to Fux.

Even with no date set for the trial, the indigenous peoples say they will remain mobilized. “We have to continue our resistance. We must keep up our fight with the same energy. August has to be the month of our fight!,” says Kretã Kaingang.

“They (the Supreme Court Justices) have no idea of the suffering of those who live under a tarpaulin on the side of the road, within a land being reclaimed, suffering threats, suffering repossession, with their leaders treated as criminals. The Justices have no idea what it feels like,” emphasized Kretã.

The Ibirama-Laklãnõ Indigenous Land is located between the municipalities of Doutor Pedrinho, Itaiópolis, Vitor Meireles and José Boiteux, 236 km northwest of Florianópolis (SC). The area has a long history of demarcations and disputes, crossing the 20th century, during which it was drastically reduced. It was identified through studies by the National Indian Foundation (FUNAI) in 2001, and declared by the Ministry of Justice as belonging to the Xokleng people in 2003. They have never stopped claiming the right to their ancestral territory.

In the general repercussion proceeding, the Justices will also analyze the ruling of Justice Edson Fachin, of May 2020, which suspends the effects of Opinion 001/2017 of the Attorney General’s Office (AGU). The ruling made official the so-called “temporal framework,” among other issues, which has been used by the federal government in attempts to paralyze and even reverse demarcations.

In that same ruling, Minister 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 decision must also be discussed by the Court.

Learn more on the case that could seal the future of indigenous peoples here

 

*By Apib – Association of Indigenous Peoples of Brazil