By ARLETE MOYSÉS RODRIGUES & TÁCIO JOSÉ NATAL RAPOSO*

There is indeed a right to be recognized: not being from the original peoples, it cannot be from anyone else

The Federal Constitution of 1988 recognized, in articles 231 and 232,[I] the ancestral spaces and ways of life of the original peoples: an advance marked by the adoption of the “Indigenous Thesis”, developed by Mendes Júnior, in 1902, which emphasized that the right to land is a congenital condition for these peoples.[ii]

From the territorial point of view, the homologated Indigenous Lands correspond to 1.076.0003 km² and those not approved at 108.344 km², and are predominantly located in the Legal Amazon. This part of the territory is home to 305 ethnic groups who speak 274 languages. These are lands that, over time, have been the target of interests for businesses aimed at accelerating capital accumulation. In the current historical period, such interests are intensified with the proposals of the temporal frame thesis that erase time from the Brazilian social formation.

In view of this, we present some reflections, from the point of view of spatial analysis and the country's territorial organization, pointing out the unconstitutionality of Bill 490/07, which proposes a time frame based on the date of publication of the 1988 Constitution and not on the reality of the existence of Brazil as a nation.

Landlords, colonizers and the Indigenous thesis

The lands occupied and dominated by the Portuguese, in the colonization of Brazil, were determined from strategies such as the establishment of sesmarias and settlements of indigenous populations. In this way, land ownership was assured to the colonizers, the exploitation of nature's riches and the imprisonment of indigenous people, initiating, with this, a process of sociocultural destruction of these original populations.

This logic of relating to the land and territories was regulated by the colonizer's conceptions of rights that disregarded the original peoples, their lives and their lands, causing genocide and the squandering of nature's riches.

On April 1, 1680, in the captaincy of the State of Brazil, the Royal Permit was published, which determined that “the Indians descended from the sertão” were masters of their farms, so that they could plow and cultivate, releasing them from paying tax or tribute. , since they were primary and natural lords of the lands. The rights were not implemented, however, the recognition in the legal system from the Metropolis, established by that Alvará of 1680, inserted the foundation of the rights of the original peoples.

In 1808, the transfer of the Portuguese Court to Brazil served as an argument to increase the demand for land, causing new expulsions, even in Jesuit settlements, throughout the territory under domination.

The Independence of Brazil in 1822 did not change this process. In October 1831, a law was published, prohibiting the enslavement of indigenous people and declaring them legally incapable, leaving the State, then, with the decisions about their lives. By considering them orphans, a contradictory inversion of the premise of land rights was promoted, which became a State concession, despite the still validity of the 1680 Permit.

In 1850, Law no. 601 – Land Law – instituted a new regime, legitimizing the ownership and domains of land obtained by sesmarias, thus enhancing the historical process of dispossession of ancestral lands. The areas of the settlements and/or the entire territorial area – that is, the living spaces of the original peoples – were defined by this Law as “vacant land”, authorizing the State to sell/assign as and when it deemed most convenient.

João Mendes Júnior, in the work entitled The Indigenous Peoples of Brazil, Their Individual and Political Rights, written in 1902, criticizes the fact that the living areas of the indigenous people were delimited as vacant lands, since indigenous territorial rights, as an original right, predated the state that was being implemented. For Mendes Júnior, the lands belonged to the original peoples due to the originality of the right, founded on the Permit of April 1, 1680, which was not revoked by the Law of 1850. legitimation, since it is a congenital possession; moreover, not being indigenous, it could not be anyone else's.[iii]

The Indigenous Thesis, as João Mendes Júnior's contribution is known, consists of the assertion that the lands of indigenous peoples were not subject to the system established by the Land Law of 1850, given their character of ownership and private occupation, of congenital possession and not acquired, that is, it would not be a fact dependent on legitimation, unlike occupation, as a subsequent fact, which would depend on requirements that legitimize it.

In this way, indigenous lands could not be considered vacant, not even in the set of non-indigenous legal norms, as it is a right guaranteed by originality, prior to the colonizing homeland and possessions obtained through invasions, sometimes bloody. And much less related to a timeframe defined by a Constitution that guarantees them the right of ancestry resulting from the process of occupation of the territorial space.

By the Indigenous, it is understood that the lands of the original peoples, congenitally appropriated, cannot be considered as properties that they acquired by simple occupation, since it is, above all, an attribute of the individual and the community, conferred from their birth .

The Indigenous in Constitutional Texts

Based on Mendes Júnior's 1912 Indigenous Thesis, indigenous rights became present in the Constitutions of 1934, 1937, 1946 and 1967/69, as shown in Table 01.

Box 01 – The rights of indigenous peoples in the Brazilian Constitutions

As can be seen, in all Constitutions since 1934, there is recognition of the right to ownership of land by indigenous peoples. Even with some adherence to the Indigenous Thesis, the fact that these lands are public goods established as vacant and owned by the Union, which could be made available by the State for exclusive appropriation due to the possibility of ownership and private property, prevailed in the constitutional texts.[iv]

In the 1970s, when the country was most closely linked to the global economy, attacks against the lands of indigenous peoples were intensified. Although there is a tradition of the Indigenato, both in the constitutional texts that guaranteed the ownership of indigenous peoples over their lands, and in amendment nº. 1 in the 1969 Constitution, in addition to ownership, the exclusive usufruct of all wealth and the inalienability of lands was foreseen, with a continuous disrespect for congenital, ancestral and constitutional rights prevailing.

In the historical process for the recognition of their ancestry, indigenous peoples began to demand the legalization of their lands. Through struggle and pressure, the Statute of the Indian (EI) was created – Law No. 6/001[v], the first official document of the Brazilian State in which the term “indigenous land” is found. In your art. 17 (BRASIL, 1973), the document provides for three types of indigenous land:

Art. 17. Indigenous lands are considered to be: I – The lands occupied or inhabited by forestry people, referred to in Articles 4, IV, and 198 of the Constitution; (Regulation) (See Decree No. 22 of 1991) (See Decree No. 1.775 of 1996);

II – The reserved areas dealt with in Chapter III of this Title;

III – Lands owned by indigenous or forestry communities.

The Statute is notable for its prejudice against native peoples, calling them “forestry”, and with the proposal for acculturation, but at the same time, it establishes the definition of indigenous lands, both occupied areas and spaces for “reserves”. . Indigenous movements and their allies appropriated the progress contained in the Statute establishing indigenous lands and, thus, strengthened the struggle for the Indigenous Thesis as an original right.

The advances established in articles 231 and 232 of the Federal Constitution of 1988 were the result of historical construction, forged in the struggle and resistance of the original peoples, of the legal apparatus formed through the recognition of the congenital right to land, and of the norms constituted since the colonial State

The Federal Constitution of 1988, in addition to ensuring the right of natives to their lands, advanced in the consideration and designation of native peoples. It also advanced in the replacement of spatial and social reparations, establishing a specific chapter on indigenous rights, in Title VIII, “of the social order”, whose objective is, according to article 193 of the Constitution, to promote well-being and justice Social.

Article 231 establishes that it is incumbent upon the Union to demarcate and protect Indigenous Lands and guarantee respect for all the assets of indigenous peoples. In addition, it highlights the evolution in the adoption of the Indigenous Thesis, repairing and replacing propositions of regulations to attributes of rights in items 1 to 7 of Article 231, dealing in more detail with the territorial rights of original peoples. In the Federal Constitution of 1988, Indigenato also meant a historic achievement.

The Temporal Frame thesis ignores historical time

The evolution of the adoption of the Indigenous Thesis, amalgamating the perspectives of the congenital right of the original peoples to the land, establishing this right as a way of promoting social justice, is under threat by Bill 490 of 20/03/07, which institutes the thesis of a Time Frame for the demarcation of Indigenous Lands, based not on the formation of society and the national space, but on the date of formal recognition of the rights of original peoples the recognized rights of the original peoples, intending to instruct that new Indigenous Lands will be demarcated only if the claimants demonstrate that they have their possession on the date of promulgation of the 490 Constitution, that is, until October 1988, 5. It configures a legal and political device that makes an attack without historical precedent on the congenital, ancestral and spatial rights of indigenous peoples. Historical time is abolished in order to permit the expansion of capital.

To PL 490/07, another 20 bills were attached, enhancing its power of aggression against native peoples and the riches of nature. In addition to the Temporal Framework thesis, the PL currently provides for: (a) the alteration of new demarcations of Indigenous Lands, withdrawing the attribution of Executive Power to Congress; (b) withdrawal of the right of exclusive use to native peoples; (c) the possibility of releasing the exploitation of bodies of water with an appeal for energy production; (d) exploitation of mineral wealth through the release of mines; (e) the expansion of the road network over Indigenous Lands without prior negotiation with their residents; (f) the incursions and the presence of the Armed Forces without consulting the peoples; (g) transgenic crops and other genetically modified plants; (h) contact with isolated peoples; among other violations.

With this content of violation, the “voting” of the time frame, in the Federal Supreme Court, began in 2021, was suspended until May 2023 and is now suspended again. The urgent procedure of PL 490/07, in Congress, tries to accelerate the destruction of historical time and national space. The PL has a degree of disrespect that is close to the crimes of physical elimination, since, in addition to disregarding the birthright of the original peoples to their lands, it establishes, in the joined measures, a rupture in the access of their assets and wealth most essential to the satisfactions biological, collective, affective, cultural and even environmental preservation.

The temporal framework thesis and its bills configure the premonition of the destruction of different forms of sociability from the capitalist one. Its idea is to standardize the pattern of spatial organization that transforms the riches of nature and people into resources for their exploitation, exhaustion and complete destruction under a form of property that tries to eliminate ancestry. It is unaware that any alteration in relation to land tenure/ownership can only be constitutional, and not arising from ordinary laws.

The anachronism of PL 490/07 and the Temporal Framework thesis reveals the deepening of the advance of capitalist practices, composing the bases of economic production and accumulation, intending to convert common possessions into a property system. In addition, it maintains the continuity of the usurpation of the guarantees and constitutional rights of these peoples by state initiatives, of spoliation by dispossession,[vi] expulsions and expropriations of their possessions, associating themselves with the acceleration and expansion of predatory mining practices, urban expansion, agriculture, illegal extractivism, among others.

It reverberates the premise of state geopolitics of authoritarian control of lands in possessions or in claims by these peoples, who were never linked to the national plan, making them historically the target of the barbarism of the same state institutions that should consider and defend them. There is a constant breaking of the rules that the State imposes on itself, always favoring the law of the strongest as an intrinsic element of its existence in whatever phase or form it assumes.

The Temporal Framework thesis and PL490/07 need to be contested. The rights of indigenous peoples are fundamental guarantees of social justice, as expressed in the Charter of 1680, in the Indigenous Thesis and in the 1988 Federal Constitution. The deregulation intended by the device pursues the objective of serving as a legal instrument for the continuation of illegitimacies against Indigenous Lands, complicating the attacks against the rights of the original peoples to impose the capitalist logic.

They are part of the geopolitical apparatus of the current cycles of accumulation by dispossession and dispossession, marked by the capture of the State by a fraction of the class eager for profits, with the production of commodities and exploitation of riches seen as natural resources.

The announcement of the end of the recognition of the birthright of the original peoples to the land, limiting their ancestry to the mere sense of physical presence in certain fractions of spaces, and on a certain date, corresponds to a pattern of historical erasure aimed at imposing, through the State, the strength of the rights of the supposed owners against the rights of those who have been in possession since time immemorial. In other words, it dismantles the broad meanings of social justice and environmental protection, contradicting the studies that demonstrate that the lands for the exclusive use of these peoples protect more the riches of nature and the environment.

Thus, it is opportune to vigorously rescue the teachings of Mendes Júnior and the entire tradition generated from the Indigenous Thesis (1902) and established in the 1988 Constitution, that the right to land of indigenous peoples is a congenital right and not a concession of the State. In other words, in the light of the country's legislative tradition, PL 490/07 and the Temporal Framework thesis do not reach the lands of the original peoples, as they derive from a right that can never be confused with a possession subject to legitimation, since it is a congenital possession. There is indeed a right to be recognized: not being from the original peoples, it cannot be from anyone else.

Finally, it should be noted that PL 490/07 and the Temporal Framework, associated with a greater number of legal and political provisions, have also attacked other peoples, such as traditional peoples - quilombolas, riverside communities, caiçaras, rural communities and family farmers , urban and peripheral communities. This institution of burying these ways of life has repercussions on the destruction of their spaces and the heterotopia that marks the geography of the country's territory, to the detriment of the alleged homogenization of the commodity space, subsumed under capital and capitalism.

* Arlete Moyses Rodrigues is a retired professor at the Institute of Geography at Unicamp. Author, among other books, of Housing in Brazilian cities (Context).

*Tácio José Natal Raposo he holds a doctorate in geography from Unicamp and is a professor at the state network of Roraima.

Notes

[I] BRAZIL. Constitution of the Federative Republic of Brazil, 1988. Available at: http://www.planalto.gov.br/ccivil_03/Constituicao/Constituicao.htm.

[ii] MENDES JÚNIOR, J. The indigenous people of Brazil, their individual and political rights. In: CUNHA, MC da; BARBOSA, SR (Eds.) Disputed rights of indigenous peoples. São Paulo: Editora Unesp, 2018, p. 319-361.

[iii] MENDES JUNIOR, J. idem.

[iv] See RAPOSO, Tácio José Natal. Advances in urbanization and capitalist practices in the Northern Amazon and the case of the city of Pacaraima on the São Marcos indigenous land – RR / Thesis (doctorate) – State University of Campinas, Institute of Geosciences, Campinas/SP, 2022. Available at: https://www.repositorio.unicamp.br/acervo/detalhe/1259859?guid=1684426425909&returnUrl=%2fresultado%2flistar%3fguid%3d1684426425909%26quantidadePaginas%3d1%26codigoRegistro%3d1259859%231259859&i=1

[v] BRAZIL. Statute of the Indian, Law n.º 6.001, of 1973, Available at: http://www.planalto.gov.br/ccivil_03/leis/l6001.htm#:~:text=LEI%20N%C2%BA%206.001%2C%20DE%2019,sobre%20o%20Estatuto%20do%20%C3%8Dndio.&text=Art.%201%C2%BA%20Esta%20Lei%20regula,e%20harmoniosamente%2C%20%C3%A0%20comunh%C3%A3o%20nacional.

[vi] See HARVEY, David. Neoliberalism. History and Implications. Sao Paulo: Loyola Editions, 2014.

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