By RUBEN CAIXETA & JULIANA NEUENSCHWANDER*
Two visions of the past and one future for indigenous peoples in Brazil: a historic judgment in the STF
In this article, we present data and elements to demonstrate that the political-legal concept of “time frame” does not find support in the body of almost all constitutional texts that have been formulated so far, since colonial times, passing through dictatorial regimes, in which they were recognized in a crystal clear way the indigenato, the original right of indigenous peoples.
In our understanding, the so-called temporal framework wants to erase the past of the indigenous people (including the one that was instituted and demarcated by colonization), imposing on them a kind of “final solution”: instead of reparation (the demarcation of the indigenous land) by a violent loss (the plundered land), the imposition of adherence to the capitalist lifestyle and market (land) and the compulsory abandonment of an ancestral and inseparable relationship with the territory and with a particular way of life.
A historic trial at the Federal Supreme Court drags on in the present day. The highest court in the country will consider the appeal with general repercussions (RE 1017365) which discusses the right of possession in an area traditionally occupied by the Xokleng indigenous people of Santa Catarina. At the center of the debate is precisely the thesis of the “timeframe”, adopted by the STF and according to which the right of indigenous peoples to the lands traditionally occupied by them depends on the fact that they were effectively inhabiting them on October 05, 1988, the date in which the Federal Constitution of 88 was enacted. The judgment is historic not only because of the relevance of the matter and the scope of the decision, but also because it necessarily implies taking a position in relation to the past and future of indigenous peoples in Brazil.
With regard to the past, it should be uncontroversial that, when more than 500 years ago, Europeans invaded the territory now called Brazil, it was already occupied by millions of indigenous people. Just as it is undeniable that in the consolidation of the nation and the Brazilian State, the dispossession of indigenous lands has been constant and continuous (until the present time). Precisely for this reason, legislation has also been consolidated since the days of colonial Brazil that guarantees indigenous peoples the right to land, initially with the Royal Charter of April 1st (not a joke) of 1680, which affirmed the right of indigenous peoples to remain on their lands, “without being disturbed or moved against their will”, through the Royal Charter of March 9, 1718, the Law of June 6, 1755, the 1757 Indian Directory, Decree 426 of 24/7/1845, which instituted the Mission Regulations, by the Land Law of 1850 (which reaffirmed the indigenato) and by the constitutions of 34, 37, 46 and 67/69, until the Federal Constitution of 1988. It is here that in the historical series of constitutions, since 1934, these rights are recognized, despite the fact that the subject was not even mentioned by the Constitution of 1824 (although widely debated in the constituent works) or by the Constitution of 1891.
The historical recognition of the right of indigenous peoples in Brazil, through these norms that repeatedly declared the Indians as owners or possessors of their lands, reaffirming each other, certainly did not prevent the countless violence of which they were victims: invasions and dispossession. of lands inhabited by Indians continue to occur until the present day. The Indians resisted, even for the simple fact that they still exist even in the face of so much violence suffered over 500 years.
It is worth noting the episode reported by Manuela Carneiro da Cunha in which the chief of the Gamela Indians from Viana do Maranhão obtained from the Justice of that province in 1822 the demarcation of the lands of the village (CARNEIRO DA CUNHA, 2012). Since ancient times, indigenous lands and their demarcation have therefore not only been the object of laws, constitutions and court decisions, but have also constituted the center of the “indigenous question”.
Under the military dictatorship, the Statute of the Indian (Law 6001/73) was drawn up, which is still in force today. The Statute was influenced by the normative advances achieved in the field of comparative law and International Law, such as the International Covenant on Economic, Social and Cultural Rights of 1966 or ILO Convention 169 of 1936 (in force in Brazil only in 2003). In this step, it guarantees the permanent possession of the lands they inhabit to the Indians (art. 2, IX) and states that this “predates the demarcation of lands, which does nothing more than recognize it” (art. 25).
The end of the dictatorship was marked by the drafting and promulgation of the 1988 Constitution. In the National Constituent Assembly, there was unprecedented and intense participation of indigenous peoples, mobilized by the Missionary Indigenous Council – CIMI and also by the Union of Indigenous Nations – UNI. For the first time, indigenous people were heard in the process of drafting regulations concerning them. One of the most emblematic scenes of the constituent process was the performance intervention by Ailton Krenak, who spoke before the plenary dressed in an impeccable white suit (white clothes) while painting his face with black paint.
In the Subcommittee on Blacks, Indigenous Populations, Disabled People and Minorities, indigenous people, indigenists and anthropologists were consulted. At one of these hearings, the anthropologist Manuela Carneiro da Cunha appeared to say that the traditional “policy of non-demarcation” left uncovered lands for which the Indians already had protected constitutional rights, expressing her expectation that “the new Constitution” maintained such rights: “It would be a breach of all legal tradition if this democratic Constitution did not provide the same guarantees that authoritarian Constitutions did. What does this non-demarcation imply? Why didn't you demarcate? It's good to say. The demarcation was provided for in the Statute of the Indian, which dates from 1973, which provided for 5 years for all the demarcations to be completed. However, we are at 87, and I gave the current figures, 32% of the identified lands are only demarcated. It is not exactly demarcated because the interests are too great. There are interests against the demarcation, or else there are interests in demarcating incorrectly, that is, strongly reducing the lands that the Constitution guarantees to the Indians” (Brasil, Diário da Associação Nacional Constituinte, May 5, 1987).
The political-legal issue of indigenous lands and their demarcation was faced in the constituent assembly with the mobilization of indigenous peoples and the formation of a Pro-Indian Parliamentary Front”, having been overdue the position of the “Centrão” and the “anti-Indian” group, which sought to remove the expression “original lands” from the text. The tradition of the constitutions that preceded it prevailed, even the dictatorial ones, and in Chapter VIII, entitled “Dos Índios”, “the original rights over the lands they traditionally occupy” were recognized (art. 231, caput): ownership of land and soil resources, and not property, which continues to belong to the Union (and, therefore, to all Brazilians).
The constitutional text explicitly defined traditional lands as those “traditionally occupied by the Indians or permanently inhabited by them, those used for their productive activities, those essential for the preservation of the environmental resources necessary for their well-being and those necessary for their physical and cultural reproduction, according to their uses, customs and traditions” (art. 231, §1o). CF/88 also guaranteed that these indigenous rights over traditional lands were imprescriptible, inalienable and unavailable. Another important advance established in the constitutional text was the possibility for the Indians, as well as their communities and organizations, to file a lawsuit to claim their rights (art. 232).
Therefore, although the right of indigenous peoples to the lands they inhabit has been recognized in Brazilian law since colonial times, CF/88 took care to reinforce the precedence of such rights by introducing the expression “original right”. In doing so, the constituents expressed their understanding, within the framework of the ethnic and cultural pluralism that underlies the constitutional text, the particularity of the relationship between indigenous peoples and the land, a relationship that is not “proprietary”, but one of unity between a people and their land, of immanence, a vital and inseparable link. This is because, by recognizing the Indian's right to cultural identity, it is also recognized that the identity of the indigenous person, as such, is constructed precisely by the nexus of life that is established between him and the land.
In the words of Eduardo Viveiros de Castro, “belonging to the land, rather than being its owner, is what defines an indigenous person. The land is the body of the Indians, the Indians are part of the body of the Earth. The relationship between earth and body is crucial. The separation between the community and the land has as its parallel face, its shadow, the separation between people and their bodies, it is an indispensable operation carried out by the State to create managed populations” (Eduardo Viveiros de Castro, Public class during the act Indigenous April, Cinelândia, Rio de Janeiro – 20-04-2016 and reproduced by School of Knowledge, April – 2016).
This understanding marks the abandonment of an assimilationist tradition and establishes respect for the cultural identity of indigenous peoples, their right to continue to exist as the peoples they are. It is, therefore, always necessary to emphasize that CF/88 did not create the right of indigenous peoples to their lands, but reaffirmed this right that had been repeatedly accepted by Brazilian law as original, giving it a constitutionally adequate framework, within the framework of a State Democratic law that recognizes pluralism, the right to cultural identity and self-determination of indigenous peoples.
The “indigenous question”, as is widely known, was not resolved with the enactment of CF/88, despite the deadline set by it (reiterating the 1973 Indian Statute) of 5 (five) years for the conclusion of the demarcations of indigenous lands. In the years following the promulgation of the Constitution, not only the lands, but the constitutional text itself became the object of dispute, often with the participation of the same political actors already defeated in the constituent process.
The Federal Supreme Court, in this step, assumed a growing role as guardian of the Constitution, a role that it has performed at times by facing deconstitutionalizing attacks, especially in a context of the advance of neoliberalism and threat to the rights of workers and minorities, at times giving in to the moons of policy.
With regard to the rights of indigenous peoples, the STF in the first years of CF/88's validity sought to give concreteness to the constitutional text, following the tradition of the STF itself in the matter, even during the dictatorship. In 1993, when judging the case involving the lands of the Krenak Indians, the STF recognized “the unmistakable immemorial presence “of the Krenak and Pojixá in the disputed area, based on numerous documents that attested to the presence of those Indians in the place as early as the 1910s. 1958. The rapporteur, Minister Francisco Rezek, rejected the thesis of the abandonment of the lands by the Indians in 34, based on the predictions of the previous constitutions of 37, 46 and 1958, which had already transferred such lands to the Union. Thus, proclaimed the rapporteur, “it is considered unavoidable that, if land was abandoned in XNUMX (...) this fact is totally inoperative for the purpose of transferring ownership of the same lands that were already part of the Union’s assets. ”. As a result, the STF declared “radically null” property titles granted to third parties by the State of Minas Gerais.
It was in 1998 that the STF, for the first time, broke with previous jurisprudence and decided a similar issue in a completely different way from the tradition of the court itself and from the historical series of Brazilian constitutions. It was there that it was invented, and there is no other word for it, because this is an unprecedented idea until then, the “time frame”. According to the temporal framework thesis, the Federal Constitution does not protect situations in which, “in memorial times, the lands were occupied by indigenous people” (Marco Aurélio Melo, vote, RE 219.983-3/98,). But here it is important to remember that in this case, as the rapporteur himself pointed out at the time, urban properties were in dispute, and this decision did not extend to the situation of indigenous lands outside the urban space.
Based on this judgment and other similar ones, Precedent 2003 was prepared in 650, which provides that extinct settlements or even lands occupied by indigenous peoples in the remote past are not Union property. Subsequently, the STF itself rejected that Precedent 650 became binding. In 2010, in the trial of Petition 3.388, in which Minister Carlos Ayres Britto was rapporteur in the case known as “Raposa Serra do Sol”, the thesis of the temporal framework was reaffirmed, however with the caveat that the traditional nature of indigenous ownership “ it is not lost where, at the time of the enactment of the Major Law of 1988, the reoccupation only did not occur due to the effect of recalcitrant dispossession by non-indigenous people”.
Even so, based on Precedent 650/2010, the “Limão Verde” case was judged on December 09, 2014 by the STF. Here, the STF denied the Indians rights over the Limão Verde Indigenous Land, again because it understood that the 88 Constitution is the “timeframe” from which the occupation of the land by the Indians takes place, for the purposes of recognition of indigenous land. On that occasion, the STF decided that the concept of “land traditionally occupied by the Indians” does not include those that were owned by the natives in the remote past, so that the “relentless dispossession cannot be confused with past occupation or forced eviction, which occurred in the past ”. For the STF, there should be, for the configuration of dispossession, “a situation of effective possessory conflict that, even started in the past, still persists until the current temporal demarcation mark” (that is, the date of enactment of the 1988 Constitution), a conflict that is materialized by factual circumstances or, at least, by a judicialized possessory controversy. This time, the STF forgot that until 1988 Brazil did not constitute a democratic State of law and that, during the dictatorship, the Indians were persecuted and violently removed from their lands, as reported by the Figueiredo Report (1967) and by the report of the National Truth (2014).
As can be seen, the STF in recent years has taken a recalcitrant position with regard to the original rights of indigenous peoples and, by embracing the political-legal thesis of the temporal framework and denying the traditional character of such lands, has come to ignore their own nature. original. In this process of true deconstitutionalization of a fundamental right, the STF violates the constitutional prohibition of return in terms of fundamental rights.
The shift of the STF towards the adoption of the temporal framework generated great legal uncertainty among indigenous peoples, as it contravened, as shown above, not only the constitutional text but also the court's precedents. By establishing the time frame of the 88 Constitution for locating the Indians' right to the lands they live in, therefore, the STF broke both with its own tradition and with that of Brazilian constitutionalism, which covers the series of Brazilian constitutions from 1934 to our days, including those enacted by dictatorial regimes. This right has its philosophical basis in the fact that the Indians were the original inhabitants of the lands they called Pindorama, of which they were legitimate owners or lords. Until 1998, even in the case of extinct settlements, these original rights were recognized.
It is nothing new that, despite the tradition of indigenato in Brazilian law, its application was the object of numerous manipulations, sometimes enveloped in a frame to legitimize violence against these same peoples, legalizing invasions and theft of indigenous lands. In this way, it must be emphasized that it is not extraordinary that, even when the rights of indigenous peoples are formally recognized, legal norms are the object of dispute and the backdrop for the denial of the rights they intend to affirm, which has already been called “inclusion of exclusion” of indigenous peoples in Brazil.
The temporal framework thesis is exactly a strategy of this type, consisting of a political-legal device that seeks to remove the incidence of the constitutional norm that protects the original right of indigenous peoples to the lands they traditionally occupied. The timeframe puts the constitutional text itself into question, resuming debates that were overcome thirty years ago, despite the fact that the original rights of the Indians to their lands are fundamental rights and, therefore, stony clauses of the CF/88.
The application of the “time frame”, therefore, is a not-so-veiled way of dismantling and preventing the application of the original right to land of indigenous peoples. We know that several of these peoples were simply decimated, others were violently expelled from their lands or confined in tiny reservations, in addition to forced mass removals, torture, murders and the creation of “specific” prisons for the indigenous people (figures of control and persecution that remind us of concentration camps).
Among similar cases, we could mention the Kaigang people in Rio Grande do Sul, confined to a small territory, as well as several Guarani and Kaiowá groups in Mato Grosso do Sul (for those who want to know more about this process, we recommend the film Martyrdom, by Vincent Carelli, a true portrait of genocide and the dispossession of indigenous lands perpetrated systematically and relentlessly for more than 300 years), or the prison at Fazenda Guarani in Carmésia (MG). We can also mention the case of the Katxuyana Indians, who, in 1968, were removed overnight from their traditional land on the Cachorro River, west of Pará, and taken by the Brazilian military to occupy a border surveillance post with Suriname. in the north of Pará.
We could continue citing hundreds of these cases of forced and violent displacement of indigenous peoples throughout history in the country, who, now, will be prevented from returning or staying on land that had not actually been occupied by them in 1988, thanks to the political-legal thesis of the “time frame”. Under Precedent 650/2010, for example, the possibility is excluded that peoples almost exterminated or expropriated during the military dictatorship, as was the case of the Kayapó, Avá Canoeiro and Waimiri Atroari, could recover their original right to the lands on which they lived until they were expelled and persecuted by the regime. That is, in this case, all Brazilians persecuted by the dictatorship would be entitled to compensation, except for the Indians.
As for land “occupied” or “taken” by non-indigenous peoples, there seems to be an inverted “timeframe”: the illegal occupation of public lands, no matter if it was done recently, is approved and washed away by decrees from the public authorities. . This was the case, for example, of the Provisional Measure (MP 759/2016), signed by President Michel Temer on July 11, 2017, which became known as “MP da Grilagem” for allowing the massive legalization of public lands of up to 2,5 hectares invaded by the “time frame” of 2011.
We see here two weights and two measures that demonstrate very well which side is taken by the Brazilian State: for lands “occupied” (it does not matter, in this case, whether in bad faith or not) by non-indigenous people until 2011 (ten years ago ), there is regularization and titling as private property; as for the Indians who do not demonstrate that they are occupying their lands in 1988 (almost thirty years ago), they will no longer be able to claim their possession as traditional land and property of the Union!
Meanwhile, while discussing the relativization of the constitutional right to traditional indigenous occupation through the intrusion into the debate of the figure of the timeframe, in 2021, the National Congress continues to approve bills that facilitate the “recognition” of the land grabbing of public lands by non-indigenous “owners” or who, in the name of the “public interest”, attenuate or erode the constitutional principle of exclusive usufruct of indigenous lands by native peoples: these are the cases of PL 2633 or PL 490. a survey by the Instituto Socioambiental (ISA), in the two-year period alone, between 2018 and 2020, land grabbing in the country increased by 274%. These bills, simply mentioned above, have the potential to “forgive” invaders of 55 to 65 million hectares of Union land.
If we go back a little further, to the time of the “negotiations” for the approval of the New Forest Code, 2009, we will remember that there the agricultural sector (especially the large landowners) had already dealt a blow to the environment and the common good: in this case, an amnesty was granted to all rural property owners who had legally or illegally removed (the so-called “consolidated occupation”) the pre-existing native vegetation by July 22, 2008.
That is, if the traditional peoples (indigenous and quilombola) are those who, in fact, protect and protect the forests and rivers (the areas occupied by them are the most preserved, including in relation to environmental protection units) throughout the their existence, those dissatisfied with the recognition, by the 88 Constitution, of the right of indigenous peoples try, under the artifice of the “time frame”, to trigger a legal-political steamroller to make both their real conditions of existence (which depend on the sources of “natural” resources) and the “environment” itself: once the traditional populations are removed from their lands, everything soon becomes scorched earth by monocultures such as soy, sugar cane, cotton or by large exploration projects of natural resources (such as mining and hydroelectric plants). Prevented (by physical, political and legal force) from retaking the lands devastated by the greed of capitalism, the “environment” and life (in addition to the “culture” of these peoples) can never be “recovered” or “rescued”.
There is no doubt that, if the imposition of the “two time frames” is consolidated and confirmed, the way will be open for the worsening of deforestation and land conflicts, increasing (even more) the already absurd amount of murders in the country of environmentalists, workers rural, indigenous and quilombola communities. Approving the “indigenous temporal framework”, preventing the possession of land by the indigenous people and all the repossessions that have been consolidated after 1988, means failing to repair the violence of the Brazilian State against its original peoples and granting amnesty for the crimes committed against them – which follow ongoing – through invasion and land grabbing of their lands, followed by extermination and genocide. More than that, it seems to mean that the Brazilian State is rewarding these crimes through its provisional measures and Supreme Court decisions.
The “time frame” operates in the erosion of the constitutionally agreed right of indigenous peoples, something that has been a requirement of the “new constitutionalism” at the service of neoliberalism. Perversely, the timeframe reverses the argument of traditionality, recognizing the Indian's right to land only if he were there on the magical date of October 5, 88, when in fact this right rests on the fact that the Indians live (or lived ) in these lands since time immemorial. In other words: the thesis of the time frame (of the two time frames!) at the same time that it ignores the past, the original character of the occupation of indigenous lands, prevents the future survival of indigenous peoples.
For this reason, we call upon the Federal Supreme Court for its historic responsibility: in defense of the 1988 Constitution and the survival of indigenous peoples and their rights, down with the temporal framework! The timeframe is unconstitutional and perverts the meaning of the constitutional text. The STF is at the tip of the arrow.
*Ruben Caixeta de Queiroz Professor of Anthropology at the Federal University of Minas Gerais.
*Juliana Neuenschwander Magalhães Professor of Legal Sociology at the Federal University of Rio de Janeiro (UFRJ).
