This post is part of a series on Politics of Nature, in which contributors explore the diverse and complex relationships of humans and their nonhuman environments, as they are framed by politics, broadly construed. The series showcases the ways in which thinking about, writing about, and acting within nature has affected these relationships.
As we discuss the Anthropocene, where environmental crises around the world are linked to the Anthropos (the homogeneous mass of Humanity), the prominent Brazilian indigenous leader and philosopher, Ailton Krenak, wonders if “we really are a humanity.” He argues that, throughout (and because of) the entire process of economic development as “progress,” there is a so-called “sub-humanity”: human beings who “are attached to the Earth.”[1] Today, in Brazil, those viewed as such, are being denied even this precarious position.
On August 26, 2021, the Brazilian Supreme Court started analyzing Article 231 of Brazilian’s Federal Constitution to define the criteria for the boundary-setting of indigenous lands in Brazil. The discussion began with a request for repossession involving Ibirama-Laklanõ area, claimed by the Xokleng People in the southern state of Santa Catarina. The area they traditionally occupied was significantly reduced throughout the last five centuries—however, Xokleng people never stopped claiming it. Given the lack of completion of the boundary-setting procedure, the area is still officially owned by the State. The upcoming ruling is being recognized for its “general repercussion”—which means that, by this one ruling, the Supreme Court will set a precedent for all cases involving indigenous land in Brazil. This discussion is paramount in terms of safeguarding the fundamental rights of indigenous people because there are still hundreds of cases of boundary-setting disputes over indigenous land all around the country. What’s more, their way of life, culture and very existence are closely linked to traditional possession of these lands.[2]
Article 231 of the Brazilian Constitution recognizes indigenous people in “their social organization, customs, languages, beliefs and traditions, and the original rights over the lands they traditionally occupy,” and it is the responsibility of the federal government to set boundaries, protect, and ensure respect for their land. Its text highlights that “lands traditionally occupied by indigenous people are those which they inhabit on a permanent basis, are used for their productive activities, are essential to the preservation of environmental resources necessary for their well-being, and their physical and cultural reproduction, according to their uses, customs and traditions,” and their removal from these lands is prohibited. The constitutional definition is in line with international standards recognized in Brazil and worldwide.
Historically, however, possession of indigenous lands had been guaranteed in the previous 1934 Constitution. As such, the current Constitution does not represent a new milestone of land rights. What the 1988 Constitution consolidated was the original right of indigenous people to their lands, abandoning a long assimilationist tradition, which intended progressive integration of indigenous people into westernized society.[3] Thus, the 1988 Constitution established a new relationship between the national state and the indigenous people living in its territory.[4]
Currently, the disputed interpretations are: on the one hand, the indigenato thesis, which recognizes the right of indigenous people to their lands as an “original right”—expression used in the Constitution—and, on the other hand, the marco temporal (time frame) thesis, which limits these rights to lands that were under their possession, or at least under judicial discussion, on October 5, 1988—when the current Constitution came into effect.
The social and political context, however, never mirrored such constitutional protection. And the marco temporal, defended especially by the rural caucus in Congress and other economic sectors linked to exploratory activities, ignores the violence indigenous peoples have suffered in the last 500 years. If such thesis prevails, in addition to legalizing past violations against indigenous peoples, the decision will also put uncontacted indigenous groups (not yet confirmed or recognized by the federal government) at risk—since there is no way to prove their land possession in 1988. This thesis also goes against the right to self-determination of indigenous people.
In response, thousands of indigenous people demonstrated on September 8-11, 2021 in Brasília, in a camp set up near the National Congress. Their motto is: “Our history does not begin in 1988!” In a note released by the Articulation of Indigenous Peoples of Brazil (APIB) and the National Articulation of Indigenous Women Warriors of Ancestry (ANMIGA), representatives of indigenous people defend that marco temporal is a legal aberration, created by those who try to silence their voices and subdue their bodies, as they have done in the colonial past.
Indeed, the judicial discussion, as well as the pressure from economic sectors supportive of the marco temporal thesis, is nothing new. The current trial may represent an advance in relation to the decision regarding Raposa Serra do Sol Indigenous Land, held in 2010, where such thesis was discussed. In 2012, the National Confederation of Agriculture and Livestock of Brazil presented a proposal to the Supreme Court for a binding precedent summary to determine that Article 231 of the Constitution did not apply to “land of extinct settlements, even if occupied by indigenous people in a remote past,” with the understanding that the boundary-setting process must focus on the proof of ownership on the date the Constitution came into effect. The Supreme Court, however, did not approve the summary due to the controversy surrounding the matter, as it is not a general understanding of the courts. Later in 2015, in the trial regarding the Limão Verde Indigenous Land, the court decided that the criteria to be considered is the persistence of a conflict at the time the 1988 Constitution came into force or, at least, by a judicialized dispute of possession. However, the general repercussion was not recognized on any of these rulings.
On September 9th 2021 Supreme Court Justice Edson Fachin, working on the case of Ibirama-Laklanõ Indigenous Land, voted against the marco temporal thesis, with the argument that indigenous land issues should not be examined from the same perspective of civil property.[5] According to Justice Fachin, this is an original right, because it is recognized, not granted, by the Constitution—that is, it is a right prior do the State itself. He recognized that previous decisions, as the one in the case of Raposa Serra do Sol Indigenous Land, have paralyzed the processes of delimitation of indigenous lands, intensifying conflicts in the affected regions and worsening of the quality of life of indigenous people, making it necessary to revisit the discussion.
Justice Fachin also disputes the criteria, as decided in the case of Limão Verde Indigenous Land, in light of Article 231 of the Constitution. Firstly, because, until 1988, indigenous people were qualified as relatively incapable, in need of tutelage from the government to file claims to the Judiciary system, due to the intention of assimilating indigenous people to the national civilization. Secondly, because the Constitution should never encourage conflict (often armed, in which indigenous people find themselves in an unfavorable position) to recognize their rights. On the contrary, he defends that an anthropological report is the adequate instrument to demonstrate that the area is traditionally owned by indigenous peoples—which is already legally provided for in the Brazilian law [6].
At the time of this writing, such discussion is in a tie, as Justice Kassio Nunes Marques, despite acknowledging the violence against indigenous people, voted in favor of the marco temporal thesis. The next in line to vote, Justice Alexandre de Moraes, has asked to re-analyze the case—and there is no expectation of when the session will resume.
[1] Ailton Krenak, Ideias para adiar o fim do mundo (São Paulo: Companhia das Letras), 22.
[2] Edilson Vitorelli, Estatuto do Índio: Lei 6.001/1973 (Salvador: JusPODIVM, 2018), 189.
[3] Carolina Ribeiro Santana and Thiago Mota Cardoso, “Direitos territoriais indígenas às sombras do passado,” Revista Direito e Práxis 11, no. 1 (2020): 109-110.
[4] Carlos Frederico Marés de Souza Filho, “Dos índios,” in Comentários à Constituição do Brasil, ed. J.J. Gomes Conotilho et al. (São Paulo: Editora Saraiva, 2018), 2252.
[5] Justice Edson Fachin’s vote can be read online here (in Portuguese); accessed on September 14, 2021.
[6] Vitorelli, Estatuto do Índio, 177-178.
*Cover Image: Mulheres Indígenas walking through Praça dos Três Poderes in Brasília. Image published on the official website of ANMIGA (National Articulation of Indigenous Women Warriors of Ancestry).
[*Cover image description: A large group of indigenous people, led by indigenous women and children in the front row, walk arm-in-arm.]
Edited by Natascha Otoya, reviewed by Emily Webster.