September 1, 2021

09:09

Cassandra Castro – from Cenarium

BRASILIA – The Brazilian indigenous movement is anxiously awaiting the continuation of the Temporal Mark trial, scheduled to take place this Wednesday, September 1st. The matter began to be judged by the ministers of the Federal Supreme Court (STF) on Thursday, September 26, but the appreciation of the theme was suspended after the reading of the initial report by Minister Edson Fachin.

Around six thousand indigenous from 176 people from all regions of the country mobilized from August 22 to 28 at the “Fight for Life” camp in Brasilia to follow the trial and fight in defense of fundamental rights, also protesting against the anti-indigenous agenda of the Bolsonaro government and the National Congress, in the largest indigenous mobilization in the last 30 years.

How the trial will go

Scheduled to begin at 2pm, the session will resume with the oral arguments of the parties involved in the lawsuit: the General Advocacy of the Union (AGU), representing the Union; the lawyers of the Xokleng community, of the Ibirama-LaKlãnõ TI (SC), the target of the original lawsuit; the Institute of the Environment of the State of Santa Catarina (IMA), which filed the lawsuit; and the Office of the Attorney General of the Republic (PGR), which is obligatory in lawsuits involving indigenous issues.

The AGU, PGR and the parties to the lawsuit will each have 15 minutes to speak. This will be followed by 34 speeches by the so-called “amicus curiae – friends of the Court”, people or organizations that assist the parties most directly interested in the case and offer subsidies to the justices who are to cast their votes following the trial.

Twenty-one amicus curiae in favor of indigenous people’ rights are registered to speak. Among them, indigenous and indigenist, socio-environmental, and human rights organizations and institutions, and 13 against, linked to agribusiness representations and entities. Each speech will have up to five minutes.

The expectation is that the oral arguments of the parties, the AGU, the PGR and amicus curiae occur for most of the afternoon of Wednesday (1). Then, the first to deliver his vote should be the reporter Edson Fachin. After him, the other nine ministers should present their votes. They can still request a new suspension of the process for further analysis, the so-called “request for views”.

One of the indigenous leaders who remains in Brasilia, the tuxaua Cícero Perez, of the Anaro Indigenous Land (TI), in the region of Amajari (RR), strongly believes that the ministers will recognize the rights that the indigenous people have. He lives in an area that to this day depends on a judicial decision to be officially recognized as Indigenous Land.

Theses in dispute

The Court will analyze the repossession suit filed by the Government of Santa Catarina regarding the Ibirama-Laklãnõ Indigenous Lands, where the Xokleng, Guarani, and Kaingang people live. The case received, in 2019, the status of “general repercussion”, which means that the decision will serve as a guideline for the federal administration and all instances of Justice regarding demarcation procedures. At the center of the dispute are two theses:

The thesis of the so-called “temporal mark”, a ruralist thesis that restricts indigenous rights. According to this interpretation, considered unconstitutional, indigenous people would only have the right to the demarcation of lands that were in their possession on October 5, 1988, the date of the promulgation of the Constitution. This thesis is defended by companies and economic sectors that have an interest in exploiting and appropriating indigenous lands.

Opposed to the temporal landmark is the “Indigenato theory”, consecrated by the Federal Constitution of 1988. According to this theory, the indigenous right to land is “original”, that is, it predates the formation of the Brazilian State itself, independent of a specific date of proof of land ownership (“temporal mark”) and even of the administrative procedure of territorial demarcation itself. This thesis is defended by indigenous, indigenist, environmental and human rights organizations.