Birth, death, and resurrection of Brazilian time frame thesis on indigenous rights.

The 1988 Brazilian Constitution in its Article 231 recognizes to indigenous populations original rights to the land they traditionally occupy. This generates in the union a duty to demarcate, protect and ensure the respect of their rights. The constitution adds that traditional indigenous lands are those on which they live on a permanent basis, those used for their productive activities, and those indispensable to the preservation of the environmental resources necessary for their well-being and for their physical and cultural reproduction (University, s.d.). Since this definition of traditional occupied lands is extremely vague, it can be interpreted in a lot of different ways. The Marco temporal thesis, developed in 2009 during the Raposa Serra do Sol case, is one of them. To resolve this case, the Supreme Federal Court (STF) theorized that should be considered traditional indigenous lands only those they occupied on 5 October 1988.

Raposa Serra do Sol is a rich territory, part  of the Roraima region which is home to nine different Indigenous communities. The idea of demarcating was born through community discussions in 1983. The different communities organized themselves in the Indigenous Council of Roraima which advocated for their collective and respective sovereignty. The ratification in 1988 of the new Constitution of the Federative Republic of Brazil, on one hand, guaranteed their rights, on the other, it did so by articulating the legitimacy of the Brazilian State to legislate over them. In the meanwhile, Reposa Serra do Sol was repeatedly violated by miners and rice farmers, however, its indigenous inhabitants couldn’t sue to defend themselves since the area was not demarcated yet. Article 232 of the Constitution states that the Indians, their communities, and organizations can sue to defend their rights and interests. But until Raposa Serra do Sol it’s not demarcated, indigenous communities have no right to it. Hence, settlers could be removed only after the Supreme Federal Court in 2009 ruled in favour of the demarcation. It comes as no surprise that the sentence was welcomed with huge enthusiasm, but several concerns already emerged in 2009.

The judgement also included 19 conditions, called “institutional safeguards”, and one of them was the controversial “Marco temporal” thesis. This was created to overcome the ambiguity of the constitutional expression “traditionally occupied land” while dismissing the indigenato theory. The latter sustains  that the Rights of Indigenous Peoples predate the conception of the Brazilian State. Hence, they exist independently from the demarcation of the territory. On the contrary,  with the Marco Temporal thesis, the idea is that the protection initiated by the 1988 Constitution concerns only the territories occupied on the date of its promulgation. Adopting this form of thinking “traditional” revolves around the way the territories are occupied. Consequently, lands occupied by indigenous communities in accordance with their culture and lifestyle in 1988 must be demarcated. This surely diminished practical difficulties but has been suspected since its formulation of diminishing also indigenous rights and the protection guaranteed by Article 231. (Rivette, 2023)

These concerns prevailed on 21 September 2023, when the thesis was finally overcome by the STF in RE 1.017.365. This case is about the request by Santa Catarina Environment Institute (IMA) for the repossess of an area of the Sassafrás Biological Reserve that has been declared to be of traditional indigenous occupation by the National Foundation for Indigenous Peoples (FUNAI). The demand was granted and then the judgement ordering the repossession was confirmed also by the Regional Court of the 4th Region (TRF-4). Finally, the FUNAI appealed to the Federal Supreme Court,  which dismissed the “Marco temporal” thesis and decided to adopt a new one that would have “general repercussions” (Supreme Court overturns the thesis of the time frame for the demarcation of indigenous lands, 2023). This means that the court actively chose to abolish the precedent criterion and establish a new one that would then  be used to resolve all future cases and pendant ones. The new criterion still makes a difference between cases in which there was traditional indigenous occupation or repeated encroachment contemporaneous with the promulgation of the Federal Constitution and those in which there was not. Nevertheless, it also shifts the theoretical understanding of indigenous rights since it states that demarcation is only a declaratory procedure, hence the indigenato theory’s perspective is legitimate. (thesis established, 2023).

This sounds like a great victory, but unfortunately at the same time throughout the legislative process, it was attempted to save the Marco temporal thesis. The federal senate approved it on September 27 pl 2903. This is the name Bill 490/2007 acquired when  it was approved by the federal congress and entered into the senate on May 30 2023. This proposal aims to modify the regulation of Article 231 of the constitution turning the Marco temporal thesis into law and diminishing several other land-related indigenous rights. To do so, the bill would change the demarcation process (Rivette, The Fight for Territory in Brazil, 2023). Currently, the minister of justice has the last word on these decisions, after the assessment of the case has been carried out by FUNAI, and must write a motivation based on Article 231 (demarcation, 2018). If the bill is approved, the power to decide on demarcation will be transferred from the executive power to the legislative one (Rivette, The Fight for Territory in Brazil, 2023).

Lastly, President  Luiz Ińacio Lula da Silva has vetoed it stating that it is “contrary to public interest and unconstitutional”. But it is only a partial veto, because Congress can now decide to override it (Brazil: President Lula partially vetoes anti-Indigenous land rights bill, 2023). Anyway, even if  this happens, the STF, the guardian of the federal constitution, has the possibility to declare it unconstitutional (The Brazilian Federal Supreme Court, 2020). Since the STF has already managed  to suppress the Marco temporal thesis, it will hopefully be able to do it another time.

Bibliography

Brazil: President Lula partially vetoes anti-Indigenous land rights bill. (2023, October 27). Retrieved from Impact international: https://impactpolicies.org/news/346/brazil-president-lula-partially-vetoes-anti-indigenous-land-rights-bill

demarcation. (2018, September 20). Retrieved from povos indìgenas no brasil: https://pib.socioambiental.org/en/Demarcation

Rivette, A. (2023, July 7). Indigenous Sovereignty: the contention of Marco Temporal. Retrieved from eco-nnect: https://eco-nnect.com/indigenous-sovereignty-the-contention-of-marco-temporal/

Rivette, A. (2023, October 16). The Fight for Territory in Brazil. Retrieved from eco-nnect: https://eco-nnect.com/marco-temporal-and-the-fight-for-territory-in-brazil/

Supreme Court overturns the thesis of the time frame for the demarcation of indigenous lands. (2023, September 21). Retrieved from Supremo tribunal federal: https://portal.stf.jus.br/noticias/verNoticiaDetalhe.asp?idConteudo=514552&ori=1

The Brazilian Federal Supreme Court. (2020, May 14). Retrieved from Supremo tribunal federal: https://portal.stf.jus.br/internacional/content.asp?id=283524&ori=2&idioma=en_us

thesis established. (2023, September 27). Retrieved from Supremo tribunal federal: https://portal.stf.jus.br/processos/detalhe.asp?incidente=5109720

University, G. (n.d.). Brazilian Constitution. Retrieved from Political database of the americas: https://pdba.georgetown.edu/Constitutions/Brazil/brtitle8.html#:~:text=Article%20231.&text=creeds%20and%20traditions%20recognized%2C%20as,for%20all%20of%20their%20property.