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The people Guarani (Mbya, Ñandeva and Kaiowá) live in more than 1,4 communities and villages in Brazil, Argentina, Paraguay, Bolivia and Uruguay. According to the Continental Guarani Map, prepared based on information from a network of volunteer collaborators, in 2016 these indigenous people totaled more than 280 thousand people. Brazil then had the largest population (85 thousand), distributed in the South and Southeast regions and in Mato Grosso do Sul.

Although dispersed in these regions densely populated by non-indigenous people, the Guarani maintain a common language and cultural practices, with great resilience. Their communities visit each other, share festivals and other events, and establish dynamic ties through marriage and common projects. In border regions, these relationships occur between communities living in different countries. In this case, the borders were only established after the Paraguayan War (1864-1870). The presence of these populations in this part of South America is immemorial.

This is also the case in other regions, such as the Amazon, where there are indigenous peoples who live in two or more countries. This is also the case with non-indigenous peoples, for example, who live on one side of the border but work or study on the other. 

Foreigners?

The Lupion family, like mine, is originally from Italy and only discovered Brazil after 1870. However, the president of the Parliamentary Agricultural Front (FPA), federal deputy Pedro Lupion (PP-PR), presented a bill (PL 4.740/2024) to restrict the recognition of Brazilian citizenship to indigenous people. He claims that the Guarani who are demanding the demarcation of lands in western Paraná and Mato Grosso do Sul are “Paraguayans,” and that the federal government, with the approval of Funai, granted them national citizenship unduly, supposedly to legitimize land claims.

The accusation that the Guarani are “false indigenous people” or “Paraguayans” is part of a strategy of “delegitimization of their territorial rights by non-indigenous society”, as the report indicates. Guaíra & Terra Roxa: report on human rights violations against the Avá Guarani people of Western Paraná, from the Guarani Yvyrupa Commission (CGY). According to the indigenous organization, this is one of the “theses” promoted by ruralists against the demarcation of Indigenous Lands – which disregards the history of violence and expulsions suffered by the native peoples.

STF Minister Gilmar Mendes leads an attempt at conciliation between the parties involved in lawsuits that question the constitutionality of Law 14.701/24, which aims to establish the time frame of 5/10/1988 for demarcations. This equally ruralist interpretation excludes the right to land of indigenous people who were not in effective possession of it on that date. Mendes intends to convince Congress to give up the time frame in exchange for other restrictions on indigenous rights, accepting a legislative suggestion from the STF.

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However, Lupion has already warned the minister that his bench will only accept a conciliation that maintains the time frame, already declared unconstitutional by the STF. Ruralists want to exclude from land rights the people who were expelled during the military dictatorship, or even before. This is the case of the Guarani, who saw their territories targeted by colonization projects since the beginning of the 1970th century and who, in the XNUMXs, were directly impacted by the construction of the Itaipu hydroelectric plant (PR). The indigenous people are still awaiting compensation for these damages.

Removal

Perhaps Lupion did not notice the precept introduced in Mendes' legislative proposal, which allows the allocation of other areas to indigenous peoples whose traditional lands are under "consolidated" occupation by third parties. An elephant could even fit through this loophole, as long as the definition of consolidated occupation serves Lupion's friends, and not the indigenous people. This loophole goes to the point that the ruralist wants, which is to exclude areas already occupied by non-indigenous people from the indigenous territories to be demarcated.

It turns out that this legislative suggestion would establish a hypothesis of permanent removal of indigenous communities not provided for in paragraph 5 of article 231 of the Constitution: “The removal of indigenous groups from their lands is prohibited, except, ad referendum of the National Congress, in the event of a catastrophe or epidemic that puts their population at risk, or in the interest of the sovereignty of the Country, after deliberation by the National Congress, guaranteeing, in any case, the immediate return as soon as the risk ceases”.

Assuming that the proposal is made official by the Supreme Court and accepted by Congress, we would be faced with an unusual situation: what exemption would the Court have to judge a possible questioning of the constitutionality of the rule that it itself suggested? It would be a fateful consequence of the court's option to attempt conciliation by means of legislative suggestion, instead of focusing on the analysis of the constitutionality, or not, of Law 14.701/24, which is the subject of several lawsuits.

The fact is that the low level of debate in the highest echelons of the Republic, focused on restricting indigenous territorial rights, reveals the State's own inability to complete the demarcation of Indigenous Lands, as determined by the Constitution. This vacuum in compliance with the Magna Carta continues to provide space for interests contrary to indigenous rights to organize themselves and create even more obstacles to the completion of demarcations.

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