*Article originally published on the JOTA website

According to the theory of the “time frame of occupation”, an Indigenous Land could only be demarcated if it was proven that the indigenous people were in it on October 5, 1988, the date of promulgation of the Constitution. The theme is being judged by the STF in RE 1.017.365, with recognized general repercussion (Theme 1.031), and should continue this week.

When one knows in detail the processes that seek to annul the demarcations of Indigenous Lands based on the theory of the temporal framework, one comes to a conclusion: “a stick that hits Chico does not hit Francisco”, as the retired minister of the court, Marco Aurelio Mello.

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If in any administrative process there are basic assumptions, such as the presumption of legality, veracity and legitimacy, the same does not seem to be valid for administrative processes of demarcation of Indigenous Lands. In the STF, for example, there is an action in which the party only alleged a “time frame” and the decision was taken to suspend the registration of the area in the notary – the last phase of the long and time-consuming procedure for the land tenure regularization of indigenous territories. The plaintiff, by the way, did not attach a single document to corroborate the allegation of a “timeframe”.

The land in question was homologated by presidential decree and the administrative process took more than 30 years. This case shows that, when it comes to indigenous rights, there is not as much appreciation for the separation of powers or temperance to avoid interference by the Judiciary in the typical attributions of the Executive Branch.

The injunction that suspended the registration of the land in the notary, incidentally, has been in force for over ten years and the internal grievance that questions it was never taken to the Plenary. The principle of collegiality also does not seem to be strong when it comes to indigenous rights. The demarcation process was opened in 1982. There are no reports of indigenous people leaving the area after that date. The author of the action also did not add the administrative process of demarcation to the records.

The question remains whether it will be with this degree of “general power of caution” that the Brazilian courts will assess whether, in fact, there is a “time frame” in a demarcation process, if the interpretation is accepted by the STF in the upcoming judgment.

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There is something else that we, lawyers defending indigenous rights, must be forgetting to write in our petitions: “protests by all legal evidence admitted”. To prove that they were forcibly expelled from their lands, a hypothesis in which the ill-fated thesis of the temporal framework would not apply, they want to claim that the indigenous people could only use two means of proof: either a possessory action filed on October 5, 1988 or a de facto conflict that has lasted up to that date. For indigenous peoples, it seems, the probationary latitude of the Code of Civil Procedure and the right to adversarial proceedings and the broad defense can be extinguished.

The idea of ​​a State that does not leave it up to the individual to take justice into their own hands, ditto – the indigenous peoples are required to have a conflict that lasted until October 5, 1988. And, what is worse: they want to demand proof that could only have been produced on October 5, 1988, that is, more than 34 years ago, when such proofs were not even imagined or required. As the popular saying goes, there are three things that don't go back: the arrow shot, the word spoken and the opportunity lost. It seems that the impossibility of going back in time also only applies to non-indigenous people. 

The scenario is aggravated by information from the corridors of the Supreme Court published last week by the newspaper O Globo, that “a group of ministers” advocated the removal of the agenda of the process so that “a negotiated exit” could be discussed. Well, from the outset the indigenous people would already be the losers. One should not quibble when the Constitution enshrines rights as inalienable and unavailable.

While it is only the Indigenous Lands that are being invaded, some prides do not persevere. Against these invaders there is no weight of law. Once again, when it comes to Indigenous Lands or the indigenous people, pride wanes. There is no right easier to negotiate than that of minorities.

In that land where registration was suspended by an injunction from the STF, the invaders are starting to make a subdivision. Deforestation has been on the rise for some years now. Afterwards, there will be those who say that the area was “anthropized” and that the withdrawal of invaders could lead to a “civil war”. The situation in the indigenous land, when the presidential ratification decree was edited, was completely manageable – and still is. It seems to be necessary to create reasons to put Indigenous Lands in check. Or terrify the population by saying that a region the size of the Southeast will be converted into Indigenous Lands – even if there is no pretense or true claim in this regard.

And when the mayor, Arthur Lira (PP-AL), puts Bill 490/2007 to the vote, which also provides for the timeframe, an issue unanimously recognized by the STF as having general repercussions and which is on trial, there are , still, those who are silent about the attempt to embarrass the Judiciary and justify that “conflict” between the powers cannot be created. 

The case submitted for analysis by the STF deals with the definition of the legal-constitutional statute of the tenure relations of areas of traditional indigenous occupation in the light of the rules set forth in article 231 of the Constitution. It does not concern, therefore, the issue that can be resolved by a Bill. 

We watched in horror the tragedy of the Yanomami. And now, instead of more protection for indigenous peoples, they want to give less. You cannot make the rights of vulnerable minorities more flexible without the worst happening. We cannot accept more actions that disfigure the Constitution. It is necessary to put an end to structural racism or we will continue to watch, appalled, the “stick that hits Chico, but does not hit Francisco”.