The right of the Indians

Image: Sean Valentine


Critical commentary on the opinion of jurist Lenio Streck

Any observer minimally informed and aware of the Brazilian reality will not go unnoticed the more general context of violence and threat in which the judgment, by the Federal Supreme Court (STF), of Extraordinary Appeal 1017365 takes place. from the Xokleng indigenous nation to their traditional lands, in Santa Catarina, from which they were expelled during the first decades of the XNUMXth century.

However, as the STF defined general repercussions for this judgment, this means that the decision to be taken for this specific case will guide the resolution of other conflicts that have as their object traditional indigenous lands that are occupied by non-indigenous people. On the other hand, a decision that is unfavorable to the constitutional rights of indigenous nations may even lead to proceedings for the annulment of demarcations that have already been effected.

What is in dispute for general repercussion is the validity of the “timeframe thesis”, an invention of the legal representatives of the large landowners to say that the letter of the Federal Constitution is not fully valid for the indigenous peoples. According to this “thesis”, it does not matter that the constitutional text expressly says that “indigenous people are recognized (...) the original rights over the lands they traditionally occupy” (art. 231), because what lawyers, judges and politicians establish in name of the latifundio is that this right only applies to the indigenous people who were occupying their lands, demanding them in court or in a proven “possession conflict” on the date of the enactment of the Federal Constitution on October 05, 1988. As Juliana Neuenschwander and Rubens Caixeta say ( 2021), “the timeframe puts the constitutional text itself into question, resuming debates over thirty years ago, despite the original rights of the Indians to their lands being fundamental rights and, therefore, stony clauses of the CF/88”. , Carolina Santana and Conrado Hübner Mendes (2021) state that “the STF will decide whether indigenous lands will be recognized by indigenous peoples, as established in the Constitution, or whether, once again, indigenous peoples will suffer from a new analytical juggling to prevent article 231 from be respected”.

As it is a fiction, a narrative genre so dear to jurists, as long as, in general, the narration is that of power, it does not matter, for them, that until the advent of the 1988 Constitution, indigenous people were tutored by FUNAI (only with the art. 232 of the constitutional text recognizes the legal legitimacy of indigenous communities and organizations), that Brazil before that was not a rule of law (the military regime ended in 1985, but the dictatorial “constitution” was still in force), and that the military dictatorship was characterized by being a period of mass extermination and torture of indigenous people (which, after all, was demonstrated by the excellent work of the National Truth Commission). Moreover, the argument of loss of the Indians' right to the traditional lands from which they were violently expelled is completely illogical when such right has been recognized since a Royal Charter of 1680 and is positivized in all constitutional texts since 1934. The 1988 Constitution it only declares a right that already existed, even if it does so in an advanced constitutional language in terms of cultural pluralism and recognition of the dignity of the human person.

Disregarding all of history, the unconstitutional legal fiction of the “time frame” works as follows: those indigenous communities lose their right of possession to their traditional lands who, once expropriated by militias of gunmen, by the police, by the Army or by all these brought together in the private interest of landowners, land grabbers, loggers or miners, and sometimes bombed with napalm or confined in concentration camps organized by the State, did not, like white men accompanied by their lawyers or attorneys, file a lawsuit for which they would need authorization and support from FUNAI, a government agency. And, as the fiction of the landowners’ jurists insists, the indigenous people who survived expropriations and massacres should have filed the lawsuit during the military dictatorship or at most three years after its end, during the Sarney government, when much of its legal and institutional apparatus. For the fiction of the “timeframe”, the military dictatorship was a rule of law and indigenous communities had full access to justice to assert their rights.

The “time frame thesis” grants a false benefit to the indigenous people, since in the absence of a “filed possessory dispute”, the evocation of an effective conflict over land ownership is admitted. In other words, indigenous people who did not file a lawsuit during the period must prove that they were fighting the armed expropriators of their lands. As Pedro Pulzatto Peruzzo and Vinícius Gomes Casalino (2021) translate well, the demand is that the most impoverished part of the Brazilian population demonstrate the struggle, in 1988, “against jagunços and landowners who are very well fed and armed”. And the presentation of evidence about the “factual circumstances”, when made in judicial proceedings, faces difficulties in being accepted by a Judiciary that is not very sensitive to indigenous rights.

Although the unconstitutional fiction of the “timeframe” predates Bolsonarism, appearing in the decision that judged the demarcation of the Raposa Serra do Sol indigenous territory in 2009 – in fact, this “thesis” appears for the first time in a vote by Minister Marco Aurélio Melo in a 1998 trial (CAIXETA; NEUENSCHWANDER, 2021) -there is no doubt that the dispossession of indigenous peoples and the destruction of the environment are among the priorities of the current far-right government. This has been characterized as an alliance of interests and ideology between the high parasitic military bureaucracy and the most reactionary, aggressive and racist elements of the ruling class. Of these, church owners and self-styled ruralists (the euphemism for forward that brings together both economically thriving agribusiness and archaic latifundia) stand out for their massive adherence to Bolsonarism and the political-ideological influence they have (“the myth is an envoy from God” and “agro is pop”). In these power relations, there is a special proximity between military officers and ruralists, who share the same territorial occupation strategy that opposes indigenous rights and the preservation of the environment.

But the Bolsonarist hordes go far beyond these characters, as the military-bourgeois alliance is crossed by an extreme right-wing mass movement on social networks and in the streets, which is both its base and its vanguard, and by the banditry that exists within the interior of the country. State police-judiciary apparatus, from which its rear guard and some of its operators come. While Bolsonaro desperately tries to stage his March on Rome, the climate of constant threats of rupture by military and police sectors is consolidating a state of permanent coup blackmail that corrupts and further degrades the rights and existing institutions. In this context, the defeat of the thesis of the “timeframe” by the STF today would have a double meaning: reaffirming the original right of indigenous nations and contributing to imposing legal limits on the ruralist-military coup plotter. This taking action would be a part of the resistance, but certainly not all the necessary resistance. It is necessary to take advantage of the government's moment of weakness and apparent retreat since September 07th to prevent it from continuing with its destructive and destabilizing actions, which requires the urgent withdrawal of the delinquent leader of crimes against humanity.

In the trial and in the civic debate about the “time frame”, the indigenous movement and its friends appear on the scene on one side of the stage and, on the opposite side, the landowners and their allies, with their troops of lawyers and hired referees. In this scenario, it is striking, and for many people surprised, that the large estates, in defense of their interests, display an opinion signed by the illustrious jurist Lenio Streck, dated August 18, 2021, at the request of a law firm hired by some associations agribusiness and cotton capitalists. In the current ideological language, they call themselves “producers”, as if it were the bosses and not the workers who grew and harvested the cotton.

Retired Public Prosecutor for the state of Rio Grande do Sul, lawyer and professor at UNISINOS and Estácio de Sá, Lenio Streck is currently one of the most respected and influential jurists in Brazil. A leading scholar in constitutional law and an acclaimed scholar of legal hermeneutics, Streck is a prolific author, with numerous books and academic articles published, a media program on Law and Literature, and a verve that spills over into a multitude of texts on legal blogs. and politicians. Furthermore, Streck is a jurist engaged in public debate, with positions identified with the so-called progressive camp, personally linked to the PT and having stood out in recent years in opposition to the 2016 parliamentary-judiciary coup and in the public denunciation of abuses and illegalities of Operation Lava Jato. Still as an example of his intellectual and political versatility, his name appears among the authors of the recently released book in honor of Dr. Augusto Aras, who occupies the role of Attorney General of Bolsonarismo. By the way, this book exaltation, published by Editora Fórum with the curious title State, law and democracy, says a lot about the dominant culture among Brazil's elites.

What Lampedusa said about Italy fits the description of our country, after all, Brazil is also a “country of accommodation (accommodation)”. Elites can split between liberals (or even leftists) and conservatives (often reactionary), but there tends to be a limit to how far one wing is willing to oppose the other. This whole tradition of “slapping on the back” among those at the top never prevented, and even helped to guarantee, the perpetuation of one of the greatest economic inequalities in the world and a daily reality of fierce physical and symbolic violence against the subordinate strata, especially suffered by indigenous and black people. To a certain extent, it is the Bolsonarist extreme right who today has put some brakes on the historical custom of adjustments and agreements from above, and it does so perversely with an “anti-system” rhetoric whose true meaning is to destroy the corrupted rule of law and the little democracy that exists. we have in order to make the system even more unequal, authoritarian, violent, corrupt and loaded with privileges, in favor of the ruling class and the military elite. Despite everything that has happened, this historic novelty has not yet been absorbed by everyone in the opposition. Analyzing the reasons for this combination of misinterpretation and lack of greater nonconformity in the face of the current moment would be beyond the scope of this article.

But let's get back to Streck's opinion. It is a market product whose use value is to ideologically influence a court decision that will affect the lives of hundreds of thousands of Brazilian indigenous people. It is true that a private lawyer has the right to select his clients from causes and opinions and each one is free to choose his side in the class struggle and in the war of capital against traditionally oppressed communities. However, there is also the right to political and legal criticism. As Friar Sérgio Antônio Görgen (2021) rightly said, “each choice is also a sentence”. Moreover, the discourse that proclaims the absolute separation between the private sphere and the public space is merely ideological, a false consciousness that aims to hide the structural reality that the economy and private life are also fields of coercive power relations.

Due to its content, the opinion calls attention for a presence and an absence. The first is the proposal to solve the case based on the application of institutes and methods of foreign law without any reference in our Federal Constitution, something completely arbitrary and, we would say, nonsense (may our English be forgiven here). The second is the silence on the relationship between the judgment of the “timeframe thesis” and the themes of the legacy of the military dictatorship and transitional justice.

Let's see what is explicitly present in the opinion. The piece is loaded from beginning to end with quotations of legal terms in English, extracted from the common law system, the form existing in the United Kingdom and in English colonized countries, so that an unsuspecting reader could even wonder if the trial is being carried out. giving in London or Washington, or perhaps in Ottawa or Canberra. As the opinion explains, in a legal system like ours, in Brazil and in other countries that follow the Roman-Germanic legal tradition, “the role of guaranteeing stability (as predictability) was conferred to the figure of the law”, while “in the matrix Anglo-Saxon law –, it was sought in tradition and, therefore, is associated with the authority of precedents” (FL. 7). In common law, a model like ours is called civil law, to mark their specificity.

It is important to bear in mind that, contrary to what Streck leads us to believe, the common law method in the United Kingdom and the United States depends on a stable political-constitutional regime for a precedent to be effectively built systematically. And this happens by custom, never by legislative initiative alone. How to import and apply a logic based on “precedents” and customs to a regime like ours, whose constitution has just completed 33 years? However, precedent is always a living thing. In the very experience of the US common law, precedents tend to be changed, approximately and with notable exceptions, every 40 years (SUSTEIN, 1995: 1733-1772) – the time when, in Brazilian constitutional history, we would have already changed our constitution.

We obviously do not deny that comparative law can be a source of learning and exchanges, after all, as Niklas Luhmann teaches, law is global as a form of communication. But we also know that in concrete disputes involving political and economic interests, the chosen references are never naive. Why choose the common law and not the new Latin American constitutionalism of plurinational constitutions like those of Bolivia and Ecuador, elaborated with a strong presence of indigenous social movements?

There is no doubt that countries like the United Kingdom, the United States, Canada and Australia have very little to teach about the treatment of indigenous populations. On the contrary, we should learn from them much more what not to do. The common law never stopped the atrocities of English colonialism against dominated peoples. It did not prevent the indigenous genocide in the United States and the confinement of survivors and descendants in miserable reservations, now devastated by Covid-19. It did not stop the cruelty of boarding schools for indigenous children in Canada, which operated until the end of the XNUMXth century, with children's cemeteries being discovered until today, covering that country with shame and raising debates about reparative justice. It has not stopped the perpetuation of extreme poverty and anti-Aboriginal racism in Australia.

One could argue that all sorts of barbarism are also known in countries of the European continental legal tradition or civil law, such as the one in force in Brazil, with its codifications and primacy of general written law. It's a fact. No legal model is a guarantee of anything, by itself, and it is enough to remember, for example, that in Empire Brazil, slave production relations were inscribed in the letter of some legal norms. But what is questioned here is the arbitrary and out-of-context importation of a foreign model, disregarding fundamental rights enshrined in a republican Constitution like ours, which, for better or worse, is the result of struggles and power relations and which is (or should be) ) the institutional framework of the end of the military dictatorship.

More precisely, the common law evoked by Streck's opinion is the American jurisprudential technique, or what he understands by it. One might wonder if the author was not confused and concluded the original intention of the Bolsonaro government to transform Brazil into a colony of the United States. However, no one can say that the author of the opinion is not coherent in adopting a colonized posture in order to defend the perpetuation of a colonial situation for the indigenous nations.

Right at the beginning of the opinion, the author makes the reservation that he would limit himself to the “theoretical and dogmatic-procedural discussion regarding the stability and authority of judicial decisions, legal certainty and the normative expectations of society, without, however, going into the merits of the indigenous question” (FL. 2). The judgment involves general repercussions in constitutional matters, more specifically the fundamental right of a part of the Brazilian population that tends to be the most impoverished and that is subjected to all sorts of iniquities. However, the reviewer tries to solve the problem by evoking any procedural preliminary that would rule out the need to analyze the merits. In fact, throughout the course of the opinion, it is noteworthy that in no passage are the articles of the Federal Constitution referring to indigenous rights mentioned. And in his “dogmatic-procedural” chicanery, he still uses the argument of “legal security”, while the concrete reality is that the “timeframe thesis” means a threat to the security and physical and cultural life of the indigenous people.

In his opinion, the actual arguments of law are very simple, and mistaken, even if wrapped in a tiresome display of legal erudition. The author justifies the choice of reference (colonized, by the way) in US law because, according to him, “it is undeniable that Brazilian Law (sic) has been intensifying its approach to Common Law, especially from the positivization of a set of of Anglo-Saxon institutes, largely promoted by the Code of Civil Procedure” (Page 10). But only two norms of the CPC are pointed out: item VI of §1 of art. 489 (page 9), which establishes that a sentence will not be duly substantiated if the magistrate fails to justify why he did not follow the “summary, jurisprudence or precedent invoked by the party”, and art. 926 (page 11) which deals with the duty of the courts to “uniform their jurisprudence and keep it stable, complete and coherent”. It calls a lot of attention that a constitutionalist cites two infraconstitutional norms of civil procedure to justify the loss of a fundamental right established in the constitutional text. There is in this argument an evident inversion of the hierarchy of the legal system. In Streck's opinion, almost entirely based on the defense of the application in Brazil of what he understands to be notions of US jurisprudential construction, Brazilian law, when it appears, is upside down.[1]

It is curious to note that the opinion supports the exact opposite of the theoretical positions previously expressed by the author. For its ease of access, we recommend the series of articles published on the Conjur website in 2016 (see, for example, Why do Brazilian commonists want to prevent judges from interpreting?; Criticism of theses that defend the system of precedents – Part II ; A political thesis in search of a theory of law – Part III), where Professor Lenio Streck criticizes precisely the decontextualized importation of common law, the attempt to block the interpretation of judges due to a certain political adoption of the thesis of precedents, and the attempt to that an infraconstitutional law or judicial decision will create jurisdiction not provided for in the Federal Constitution. In short, everything that, now being withdrawn, is defended in the opinion. It remains to be seen whether the author has changed his mind or whether he lives with an absolute and incommunicable separation between the positions of the constitutionalist and those of the private reviewer.

Despite its rhetorical twirls, the argumentative core of the opinion in relation to the concrete case is that the “institutional safeguards” established, in 2009, in the judgment by the STF of the demarcation of the Raposa Serra do Solsão indigenous reserve “technically” a “precedent”. And along with the establishment of these “safeguards” would be – what a coincidence – the so-called “time frame thesis” on 05/10/1988, which is what matters most to the latifundio. The opinion recognizes that a precedent is not the same as reiterated jurisprudence and that it is not necessary for there to be a formal decision that expressly binds the precedent for the future (Page 11). The reservations in the opinion were logically essential, since in fact there is no jurisprudential uniformity in favor of the “timeframe thesis” and the STF itself, when it judged, in 2013, the Motion for Clarification of the Raposa Serra do Sol case, decided that that judgment had no binding force. On the contrary, the country's highest court established the general repercussions for what came out of the judgment on the lands traditionally occupied by the Xokleng. So why would the “timeframe” be “technically” a precedent? Because Streck understands that such a decision in the Raposa Serra do Sol case would meet the requirements of what would be a precedent as established by the jurisprudential tradition and by the doctrine…of the United States. Would we also be obliged, by some “moral and persuasive force” (Phil. 16), to write fox sun hills?

As the opinion lists, the requirements Made in USA of what would be a precedent are its moral authority and, most importantly, a “universalizable founding substance”, that is, what “within the precedent” exists as a “generalizer independent of the facts dealt with”, what the gringa doctrine calls “ratio decidendi” ou “holding” (FLs. 7-8). As can be seen, the opinion is full of jargon and anglicisms, but nowhere in its twenty-five pages does Streck tell us, after all, what would be the ratio decidendi of the “timeframe thesis”, which would require a justification in accordance with the Federal Constitution…of Brazil. No wonder, because we assume that he would not be contractually authorized to admit that the only reason for the “time frame thesis” is the sordid interest of economic power in expropriating the right of possession of the Indians to their traditional lands. And the constitutional text does not provide that a court, even if it is the highest instance of the Judiciary in the country, is endowed with any competence to derogate a positive fundamental right.

If the reviewer does not say which ratio decidendi contrary to the right of indigenous communities expropriated before the advent of the 1988 Constitution, how to measure their “moral and persuasive strength”? We know that the persuasion known by the indigenous people is the barrels of guns at the service of the landowners, loggers and gold prospectors. However, Streck notes that the “timeframe” would be a precedent for three reasons. First, he states that the “time frame” inserted in the summary of the judgment referring to the demarcation of the Raposa Serra do Sol indigenous territory “represents a great advance in terms of civilizing achievement”. This is yet another loose statement in the opinion without any explanation. At this point, at least he needed to tell us which civilization he was referring to. Second, the judicial decision that mentioned the “timeframe” in a specific judgment (Raposa Serra do Sol) would have the characteristics of a law in the material sense, endowed, therefore, with “generality, universalization and abstraction” (FL. 13). Here he forgets the basic lesson that a general, universal and abstract norm can be absolutely unconstitutional and equally violative of human rights. In this specific case, the character of “generality, universalization and abstraction” of the jurisprudential norm is only apparent. In fact, the “time frame” is more like an administrative measure of discretion typical of dictatorships, as it is a political decision against a particular oppressed group in order to economically favor another particular group that is endowed with political capital. Third, the author maintains that there would be a precedent in mentioning a “timeframe” for the occupation of indigenous lands due to the fact that the decision “produced impacts in the administrative, legislative and judicial spheres” (FL. 16). What the hell impacts would those have been? He cites new judicial decisions that breach the constitutional right of indigenous peoples, two government ordinances in favor of the interests of the large estates and some bills authored by right-wing deputies whose contents are contrary to the letter and spirit of the Constitution. However, a judicial decision, a government act and an infraconstitutional law are not, or should not be, capable of derogating from a constitutional norm, even more so in terms of fundamental rights. Nevertheless, it seems that for Streck, when the court, the government and some parliamentary servants of the latifundia refer to the “time frame thesis”, then it is obvious that there is "moral strength" and rationality/“holding”. Faced with the impossibility of basing the “timeframe thesis” on the Federal Constitution, the author simply resorts to a redundant argument of faith in political and judicial power. When convenient, it suffices to say that power legitimizes itself.

Against possible criticisms, obvious, that he would be using a conservative perspective, Streck intends to demonstrate that precedent is not a straitjacket and that the common law is capable of change. Yes, but with limits and without haste, he warns us. As we will see in the following paragraphs, to make it clear that he is not a conservative, Streck ends up using ultra-reactionary arguments. Furthermore, without mentioning which ratio decidendi of the “time frame thesis”, although non-existent, it needs to guarantee, at least, that such “safeguard” of the latifundia is not abandoned by decisions in the present and in the future. The author wants to establish which hypotheses could lead to an imaginary defeat of the “timeframe thesis”, simply to conclude that there is no possibility of revision that meets the rights of indigenous peoples.

Readers who have not given up in the face of all the rhetorical affectation poured into the opinion will reach one of its most absurd passages, which is the comment on some famous judicial cases of the Supreme Court of the United States. Let's look at three of them. one is the case Dred Scott v. Stanford, of 1857, which declared the constitutionality of slavery (FL. 17). For the author of the opinion, if “precedents were not subject to review – and stiffened the legal system with an insurmountable position on a given matter -, slavery would last until today” (FL.18). First, the opinion writer forgets that slavery came to an end in the United States through civil war and not through the grace of enlightened judges and observers of common law methods. Historical conditions dictated that slaveholders be militarily defeated and subjugated by force of arms. He also forgets that the abolition of slavery was formalized by written amendments to the Constitution. Second, by 1857 that pro-slavery court decision was already in opposition to the advanced universal consciousness, which had experienced the liberal revolutions, Jacobinism, the Haitian Revolution and the first socialist movements. Almost forty years before that spurious decision of the Supreme Court, Hegel had stated that, even if it is factually grounded in existing normative orders, the institution of slavery is always contrary to any true concept of law (HEGEL, 2010, paragraphs 2 and 57). That an admittedly reactionary jurist should come today to admit the legal legitimacy of slavery at that time, that would already be intolerable. When such nonsense emerges from the writing of a jurist considered “progressive”, the absurdity is fraught with surprise. This is a good opportunity to reflect on greater caution with the use of the word “progressive”, which is loaded with contradictory meanings, depending on the social point of view. Let us recall Walter Benjamin's revolutionary critique of the catastrophic march of progress by the victors, in his Theses on the concept of history. In Brazil, many of the crimes committed against indigenous peoples have been committed in the name of the “progress” of the capitalist productive forces.

Another Supreme Court decision mentioned in the opinion is the case Plessy v. Ferguson, of 1896, which authorized the practice of racial segregation in public places and services, revised almost sixty years later, only in 1954, in the case Brown v. Board of Education, which put an end to such a regime in public schools. There is no doubt that racial segregation was already a legal abomination at the end of the XNUMXth century and it is notorious that the maintenance of this turpitude in the United States served as an inspiration for the racial legislation of Nazism almost forty years later. The list of absurd decisions goes on with the case Bowers v. hardwick, which, amazingly, in 1986 authorized the criminalization of “male sodomy” by state legislation, which would only be revised in 2003 (FL.18). Seventeen years after the Stonewall Rebellion, the Supreme Court judges ruled in disregard of the American gay movement and this violating decision of individual freedoms lasted another seventeen years.

All these examples brought to the opinion are proof of the conservative resilience, and to a large extent reactionary and barbaric, of the American legal order. However, Streck candidly envisions in these cases “the dimension of political responsibility that marks the decisions of the Supreme Court, especially when the movement to revise and overcome a precedent is set in motion” (FL. 18). What precedents? Slavery, racial segregation and the criminalization of homosexuality. In the case of the end of racial segregation in public schools, decided in court only in the mid-fifties of the last century, nine years after the military defeat of Nazi-fascism, and conquered in the streets by the accumulation of the heroic struggle of the black mass movement in the United States , the renowned Brazilian theorist of hermeneutics salutes the delay with which the decision was taken, for him “a temporally moderate strategy for the production of its effects” (FL. 18).

The referee explains to us in a professorial way that for the abandonment of a precedent, a “change in the normative meaning related to the matter, in terms of intersubjectivity” is required (FL. 20). This argument is very interesting, as it shows in a very explicit way its alienated and ideological character. Now, what are these subjectivities? It is certainly not appropriate for them to be analyzed without taking into account the current economic formation and political system. In a slave-owning order, the subjectivities that determine judicial decisions are not those of the slaves. It is a symptom of difficult times when we need to say the obvious at all times. While historically some subjectivities were repressed by the armed power of the State, the judges could decide taking into account only those that were allowed. However, there is dialectics. Throughout history, the oppressed fight for their emancipation, try to break through the blockade established by power, very rarely achieve any individual victory within that restricted system, collectively accumulate strength, suffer setbacks, persist, advance, accumulate strength again, until they conquer some collective victory that means an increase in freedom. It is an exercise in intersubjectivity, no doubt, but in conflict, often of life and death, and not the jurisprudential fantasy painted in the opinion in favor of the latifundio.

The conservative character of the common law, despite its historical origins being earlier, is based on its relationship with modern political systems that are not very open to the political participation of subordinate classes. Bear in mind the distortion of the constituency system in the United Kingdom and the maintenance of an aristocratic upper house, which historically results in the under-representation of the working class. Worse has happened in the United States, either because of the state's persecution of leftist parties and movements, or because of the numerical distortion of the electoral system of delegates, or because of criminal or bureaucratic coercion against the registration and electoral participation of blacks, without forgetting that this republic , self-declared “land of freedom”, lived for decades with the slave regime. This partial blockage of the political socialization of those from below determines the so-called “intersubjectivity” that reaches the courts and grounds judicial decisions.

The conservatism of common law in the United Kingdom and the United States has never gone unnoticed by critical observers. In his exile in London in the 30s, the Marxist jurist Franz Neumann, when specifically studying the British legal system, found that “the common law it is extremely rational, but only for the rich. It remains irrational, to a large extent, for the poor and the petty bourgeoisie” (2013: 432). consolidated mainly in parliament from struggles in civil society. And in the United States, also after the Second World War, there was a process of “interpretive turn” in its constitutional regime in the sense of mitigating inequality a little, albeit in much more legal than economic terms. There is a particular dialectic in these regimes that we cannot lose sight of. If, on the one hand, the blockages to the political action of the subaltern classes, more in the United States than in the United Kingdom, hindered and even prevented, among other factors, the growth of the left, on the other hand, the conservatism of its institutions consolidated a stability which served as a protection for these countries not to succumb to fascist or military dictatorships, also because these were not necessary in defense of the capitalist social order.

If there is truth in Streck's opinion, it is the comparison, probably involuntary on his part, between the supposed juridicities of slavery and racial segregation in the past and the attempt to legalize the dispossession of traditional indigenous lands in the present. By employing his sophistry in defense of the “time frame thesis”, the author ends up sustaining the legal legitimacy of slavery and racial segregation. We believe he did it without realizing it, in his eagerness for rhetoric.

The entire argument of the opinion on the changes in a system of the common law amount to a tautology. In it, if a precedent changes, that's why it should change, if it doesn't change, that's why it should remain as it is. The confession of conformism is explicit and he falls into a rather vulgar “legal realism”. Evidently, the author argues that the “time frame thesis” will be consolidated as a general repercussion by the STF, this is the purpose of the opinion, and therefore classifies it as a precedent that would be based on a supposed ratio decidendi that he never says what it is, but that it produces a mysterious "moral and persuasive force". There is an evident maneuver here, also tautological: the “time frame” must be judged as having general repercussions because it would already be mandatory, even before the decision of the STF, due to its supposedly inexplicable condition of “precedent”.

However, there is an abysmal difference between the case under trial in Brazil and all other examples of changing precedents in the Supreme Court of the United States evoked throughout the opinion. Although slowly and dragging on through decades of heavy normative injustices, all cases brought from US jurisprudence are of the transition from a state of non-law to a situation of recognition of subjective rights. The way was that of the greatest freedom. In Brazil, the “timeframe thesis” means the exact opposite: the expropriation of a fundamental right enshrined in the Federal Constitution. A judicial defeat of the Indians would lead to greater oppression. It is as if in the United States of today a new “precedent” was invented that ordered the return of racial segregation.

Having mentioned all these precedents of US common law jurisprudence, the author finally arrives at the objective of his opinion: to state that the “timeframe thesis” cannot be revised to benefit indigenous peoples. As he explains in his opinion, there would be determined conditions for the replacement of a precedent by a new one, which would be the legal and factual reasons that would justify, based on the “identification of the ratio decidendi of the precedent, so that it is then possible to confront it with a new judicial discussion", in order to "clearly show why the precedent needs to be modified, that is, why it has become fragile or inadequate in the face of the concrete case" . It would therefore be necessary to interpose, in the face of established jurisprudential precedent, changes both in legal intersubjectivity and in the reality of facts. Consequently, such transformations would require a “hermeneutic effort” that demonstrates them (FL. 20). A real hermeneutical effort (and what an effort!) is to justify slavery, racial segregation, the criminalization of homosexuality and the maintenance of the expropriation of indigenous lands. After all, no one will be able to ignore the reviewer's effort.

To say that there is no intersubjective basis for rejecting the “time frame thesis” is to take into account, in this case, only the relationship between the subjectivities of the expropriating latifundia and the high military bureaucracy eager for privileges. The collective subject of the Brazilian indigenous movement, in its many organizations and ethnicities, never accepted being dispossessed of its ancestral lands and its conditions of existence. However, this indigenous subjectivity is not always taken into account by the judges. A little further on, the opinion says something more in disregard of the indigenous people. After quoting the passage of the vote of the Rapporteur, Minister Edson Fachin, in which he affirms the “intensification of conflicts and a noticeable worsening of the quality of life of the Indians in Brazil”, he demands that evidence be presented, “concrete, material demonstration” of the existence of “greater damage to the indigenous question”. Now, considering the oppression of indigenous populations for about five hundred years and the worsening brought by the current far-right government, this argument is, to say the least, a mockery.

But the requirement of factual demonstration is just an artifice, as the reviewer concludes that such notorious misfortune experienced by indigenous peoples in Brazil, which he does not admit in any passage of his text, cannot be given to us, considering that “ neither party seeks the revision of the Raposa Serra do Sol precedent” (FL. 21). Here the text induces a confusion between review of precedent from the judgment of a new concrete case and rescission action, a specific legal remedy provided for in the Code of Civil Procedure for cases that have become final. First, as we have shown, the “timeframe thesis” is not a legally valid precedent under our legal system, but a violation of the Federal Constitution. Second, neither are the parties the same in the Raposa Serra do Sol case in Roraima and the Xokleng case in Santa Catarina, nor would there be a legal interest in terminating the first case, at least on the part of the indigenous people who had their traditional lands recognized without being achieved by the “time frame thesis”.

In its alienation from the concrete reality of Brazilian indigenous peoples, who are the target of attacks by powerful enemies, the opinion says that there would be no “turning point hermeneutical” (FL. 23) for the non-application of the “timeframe thesis”, arbitrarily considered by him as being a precedent, despite the STF having decided that only in the case of the Xokleng will the general repercussions occur. Let us then translate the entire argument of Streck's opinion into one sentence: the STF took some decisions contrary to the fundamental right enshrined in the Federal Constitution, but, in the judgment of the general repercussions for the future, the court is obliged, by imposition of national State law foreigner, to insist on the error and derogate the constitutional right of the indigenous people, and for that it is enough to quote some jargon in English and manipulate the history of the precedents of the Supreme Court of the United States.

As the pro-latifundio opinion is entirely based on a proposal for the arbitrary importation of common law, it is salutary that a few more aspects of this legal tradition be briefly addressed. Streck's reading of the common law seems rather limited to the US constitutional experience, ignoring its origin: the archaic system of English law. It is a pre-modern legal system, constantly updated, but with a significant part of its validity dependent on historical, political and social reality. In a context where there is no constitution codified in a single legal text declared as hierarchically superior, as in the case of the United Kingdom – although many British constitutional laws are, yes, written – the precedents, and their subsequent and permanent modification, are simply the own form of construction of law. It should be added, however, that the so-called “constitutional conventions” are unwritten rules of law and, therefore, almost never subject to judicial review – except in cases where the British Parliament has transformed them into “statutes”. In this regard, it is important to say that judges in the common law they understand that they make law with their decisions, although, on the other hand, they limit their role as interpreters of the “Statutes”, the legislation passed by parliament, to a minimum. The law is made by the judges in deciding the cases themselves, relying here not only on the Statutes of Parliament, but also on their own previous decisions, the precedents, which serve, therefore, to say what the law is today.

However, the method proposed by the author in considering a case explicitly declared without general validity by the STF (the Raposa Serra do Sol), as being a “precedent”, is a mistake in many senses. If it is possible to speak of a “method of common law”, as proposed by Professor Martin Louhglin (2013: 21), this has an absolutely different meaning from that applied by Streck – which is strictly restricted to an attempt at an interpretation (reactionary, by the way) of the US constitutional reality. For example, despite the strength of precedents in its system, the English common law absolutely rejects the idea that a general proposition, even with legal validity, can be directly generated or inferred from a precedent arising from a legal decision in a previous concrete case, in the model of “judge made law” (in the quote in English so popular with some). In a decision handed down at the beginning of the 20th century, in the case Quinn v. Leatham, from 1901, Lord Halsbury said that a judicial decision can only be considered as “authoritative” for the decision itself, and never as support for a “proposition that seems to logically follow from it”. His argument is very interesting. For Halsbrury, making an assessment of a proposition of general logic, based on a precedent and disregarding the reality of the facts of the concrete case, reveals “a modal reason that presupposes the law as necessarily being a logical code, when any lawyer knows that the law is by no means constantly logical.

All of Streck's opinion is characterized by the propagation of a supposed superiority of the rationality of the common law of the United States, which he does without considering the concrete history of that country. However, the beginning of the interpretative turn in its constitutional regime only came after the Second World War, due to several external and internal determinations. But this interpretative shift is constantly erased from recent constitutional history. Even jurists considered progressive in the USA, such as Cass Sustein, defend the existence of a “constitutional exceptionalism” that would have marked the history of the USA, corroborating with the traditional reading of Alexander Hamilton, that the United States would be an example of “constitutional construction” intentional – as opposed to the European experience, which would have been marked by social conflict and despotic absolutism and, just by chance, resulted in a democratic constitutional experience (RANA, 2015: 267). This interpretive redemption is, of course, a revisionist strategy that seeks to distance US constitutional history from its material origin: European and Anglo-Saxon imperialism, which left the same marks of indigenous massacres and institutionalized racial segregation in every country where it established its presence. domain – as in South Africa, Australia and Canada.

The ideologically advocated democratic constitutionalism that exists in the US today is therefore an interpretation that rehabilitates the US Constitution but is, in fact, only a few decades old. It is a historical revisionism that masks a superclassist national State that, even after independence, included a project of slavery and indigenous extermination. All of this was made compatible with the US Constitution until the relatively recent past. It was for no other reason that the black movement in the USA, in general, and the Black Panther Party, in particular, “defended a new national constituent assembly and a rupture with the legal order” in that country (RANA, 2015: 269). And it is based on such a colonizing experience, instituted through African slavery and indigenous extermination, whose oldest “constitutional precedent” is the complete violation of self-determination and the existence of original peoples, without any type of reparation, that Streck proposes its defense of the “timeframe thesis” against the rights of Brazilian indigenous peoples.

Finally, a few brief lines about the great absence that crosses the opinion, in addition, of course, the lack of reference in the Federal Constitution itself as a rule, as we have already demonstrated in the paragraphs above. The opinion is omitted in the face of the relationship between “time frame” and military dictatorship. The serious human rights violations against indigenous peoples during that regime are known and well documented. Octavio Ianni's book, Dictatorship and agriculture, first published in 1979, is a classic, but there is a whole bibliography on the subject. The military dictatorship organized and promoted the expropriation of land and the mass physical extermination of indigenous peoples and peasants in order to make room for the expansion of capitalism through the fields and forests of Brazil, favoring companies, landowners and land grabbers, and carrying out major public works that they should provide the useful infrastructure for the development of the economy. Undoubtedly, the work of the National Truth Commission is a milestone for the awareness of this violence, for all that it was able to gather and systematize from the history of the period, the memories and testimonies of the victims, and the numbers it discovered. It is estimated that more than eight thousand indigenous people were killed by the regime.

During the military dictatorship, the Krenaks were confined in concentration camps, the Waimiri-Atroari were bombed with napalm and Agent Orange, and many other heinous acts victimized various ethnic groups. These facts are what is hidden behind the “timeframe thesis”, because, once known, they reveal why so many indigenous people were not on their lands on October 05, 1988. The genocide against indigenous people did not begin during the military dictatorship , and unfortunately it didn't end with her, but it is a fact that she had a high point in this regime of arbitration. The same economic interests that in the past motivated all this violence are those that today are pushing for the legal legitimacy of the dispossession of traditional indigenous lands, and such attempts are strengthened with the rise of the extreme right to government. In January 1976, the Minister of the Interior of the Geisel government, Rangel Reis, declared: “The Indians cannot prevent the passage of progress (…) within 10 to 20 years there will be no more Indians in Brazil.” The Bolsonaro government is the heir to the racial and cultural genocide plans of that dictatorship minister.

Therefore, rejecting the “timeframe thesis”, declaring it unconstitutional and violating human rights, constituted a necessary measure of transitional justice that would place us outside both the general history of barbarism against indigenous peoples and the military dictatorship that remains. through structures that are not acceptable. In 2010, the STF had a chance to break with the military dictatorship and failed to do so. The same court that until 2003 still had a minister appointed by the generals and continued in the following years with others who were academic advisers of the regime's leaders.

The Action for Breach of Fundamental Precept (ADPF) n. 153 requested that the Amnesty Law be interpreted in accordance with the Federal Constitution currently in force and that, therefore, based on the principle of human dignity, the impunity of agents of the military dictatorship who committed human rights violations should be reviewed. However, the STF not only maintained that protection for the perpetrators of such crimes, but also, in the reasons for that judgment, introduced the exotic “thesis” that that impunity is an “original norm” of the 1988 Constitution, since it was incorporated into the normative act 1985 that convened the Constituent Assembly. Although this statement contrary to the originality of the 1988 Constitution was defended by only two justices, Eros Grau and Gilmar Mendes, the “thesis” ended up being incorporated into the final wording of the judgment. For the Justices of the STF, not only is the military dictatorship considered a rule of law, but the current constitutional order is seen as an evolutionary continuity of that autocratic regime. Since 2016, the ghosts of the military dictatorship have returned to torment the country. Since 1o January 2019, the ghosts are in the government and killing a lot of people.

Although the “timeframe thesis” dates back chronologically (the judgment for the demarcation of Raposa Serra do Sol dates back to 2009 and there were mentions before that), it is the anti-indigenous counterface of the pro-military dictatorship decision handed down in ADPF n. 153. Both are based on the absurd fiction that the military dictatorship was a rule of law and treat its crimes and effects as a fait accompli. Incidentally, there is a curious coincidence of detail between the impunity of the agents of the military dictatorship reaffirmed in 2010 and the judgment of the general repercussion of the “time frame thesis” in 2021. In the latter case, a jurist identified with the left, Lenio Streck, provided an opinion favorable to the interests of the latifundio. In ADPF n. 153, Rapporteur Eros Grau's vote for everything to continue as it is was based, among other references, on a quote from a preface written by a jurist also identified with the left, former Governor Nilo Batista.

Someone who is unaware of or pretends to be unaware of the history of the indigenous genocide in Brazil could argue that the “timeframe thesis” is not limited to the period of the military dictatorship, as the limiting event of the enactment of the Federal Constitution occurred during the Sarney government. However, for the indigenous people it was as if the military dictatorship had not ended. The president of FUNAI during the Sarney government was Romero Jucá, the same person who used the phrase, many years later, in 2016, of the “great national agreement, with the Supreme Court, with everything”, and considered by Dário Kopenawa “the greatest enemy of the indigenous peoples of the Brazil” (BBC Brazil, 25/05/2016). In the second half of the 80s, now officially without generals at the head of the Brazilian government, he carried out a strongly anti-indigenous administration, which configured one of the worst periods of human rights violations against this part of the Brazilian population, according to the report produced by the National Truth Commission. Jucá favored the invasion of thousands of prospectors on lands inhabited by indigenous peoples and, as a reaction to the criticism he received for this support, he expelled, in 1987, the health professionals who attended to the Yanomami population. Claiming at the time reasons of "national security" against NGOs and foreign missionaries, he prevented medical assistance, including by Brazilian professionals, in the midst of a serious epidemic, mainly flu and malaria, brought by the presence of the same miners who covered and encouraged. It should be remembered that those responsible for these acts of violation of human rights are still subject to being tried and punished, as the crime of genocide does not prescribe and they are not protected by the excuse of the Amnesty Law, since the facts occurred after 1979.

In his manifestation in the trial of the “time frame”, the Attorney General of Bolsonarismo presents yet another legitimization bias of the military dictatorship. Appearing to reconcile with the position of the institution he heads, the Federal Public Ministry, which has been highlighted by some of its members in defending the validity of the indigenous rights declared in the Federal Constitution, he spends many lines to say that he is against the “thesis of the landmark temporal". However, at the end of his opinion, in the operative part, the one that produces effect for the res judicata if it is complied with, the attorney defends that the demarcations be decided on a case-by-case basis and in accordance with the law in force during the occurrence of the facts . If the indigenous people's right to their lands has been recognized since 1680, this shouldn't be a problem. However, the most likely thing, knowing the power relations in Brazil and the classist character of the Judiciary, is that this false solution, if adopted by the court, will serve as a justification for saying, in the face of concrete cases, that crimes committed against indigenous people before 1988 are covered by the “legality” of the period.

In turn, Bolsonaro's man within the STF, Minister Nunes Marques, cast a vote without any dubiousness. After the Rapporteur of the process took a position against the “time frame”, he made his class alignment explicit, but without covering up the facts. His clarity was didactic. He recognizes all the violence practiced against the Xokleng, including land grabbing, but concludes that everything should continue as it is, in the name of “legal security” and the preservation of “private property”. Then, in the same session on September 15, Minister Alexandre de Moraes asked to see the case, returning it on October 11 so that the president of the court can schedule a new date for the reopening of the trial.

Not coincidentally, and in line with the opinion of Nunes Marques, which came after him, Streck's opinion also evokes the defense of “legal security”. Military officers who surrender and betray the country still use the anachronistic expression “national security”, which gave its name to the official military doctrine of submission to the United States. As is well known, the word “security” is usually a banner of conservative or reactionary discourse. In the opposite direction, true legal and national security would be to guarantee the implementation of the Federal Constitution, but what the defenders of the “time frame” intend is to maintain the status quo of the facts, that is, the continuity of the reality of insecurity for the oppressed. . As for the protection of “private property”, Streck's opinion says nothing, which would be redundant, considering the associations of landowners who hired him through their lawyers.

Faced with the defense that the Historical School of Law of Savigny made of the conservation of feudal “rights” in German lands, by custom or by jurisprudence, the young Marx sentenced that that was “a school that justifies infamy (Niederträchtigkeit) of today for the infamy of yesterday” (2005: 146). Against all legal theses and ideologies based on reactionary interpretations of judicial precedents of oppression, the customs of the rulers or the traditions of the exploiting classes, Marx's critique remains current.

As far as Brazil's indigenous populations are concerned, the infamy of yesterday: the dispossession, disease, rape, slavery and genocide of five centuries, including mass extermination, concentration camps and napalm administered by the military dictatorship . Today's infamy: dispossession of land, wage exploitation or exploitation analogous to slavery, misery, killings, rapes, old and new epidemics, precarious public services and the reiteration of the historic alliance between landowners and the Army in favor of a new autocratic project. Still, despite everything, the Indians resist. Long live indigenous resistance, today, yesterday, always!

* Marcus Giraldes holds a doctorate in law from PUC-Rio.

*Marcus VAB de Matos is professor of law at Brunel University, London and founder of the Christian People's Advocacy Network (RECAP).



Lenio Streck's opinion can be consulted in full at:



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[1] Constitutional Amendment n. 45 of 2004 posited the figures of general repercussion (art. 102, § 3) and the binding precedent (art. 103-A), and obviously these cannot have a concrete content contrary to the rights of the Federal Constitution. On the other hand, the precedent, under the common law, which is a legal norm born from a decision of the same court or a higher court, does not exist in our legal system and, much less, could derogate an express rule of the Federal Constitution. In fact, in theory, not even in the United States, however open its constitutional text may be.


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