Foto @cicerone.bezerra

The session is scheduled to start at 2 pm (GMT-3), with oral statements by the parties involved in the process; indigenous peoples are mobilized in Brasília and in the territories to follow the judgment

Scheduled to start at 2:00 PM (GMT-3) on Wednesday, September 1st, the Brazilian Supreme Court (STF) resumes the judgment on the “milestone thesis” for the demarcation of Indigenous Lands (TIs), suspended last Thursday ( 26) after the presentation by the Justice Edson Fachin of his report. Still last Thursday, the President of the Court, Luiz Fux, confirmed the case would be resumed as the first item on the Court schedule, as it configures a “very relevant” issue and must have a decision this week or in the “following days”.

With the report already presented, the session will be resumed with the argumentation by the parties of the process: from the Attorney-General of the Union (AGU), representing the Union; lawyers from the Xokleng community, from TI Ibirama-LaKlãnõ (SC), target of the original action; the Institute for the Environment of the state of Santa Catarina (IMA), which proposed the action; in addition to the Attorney General’s Office (PGR), which is required to manifest itself in lawsuits involving indigenous issues. AGU, PGR and the parts of the process will each have 15 minutes of speech.

Then, there should be 34 speeches by the amici curiae – “friends of the Court”, which are organizations that deal directly with the issues under analysis, and, from this position, may bring relevant points of view to support the Justices to make their decision.

21 amici curiae are registered to speak in favor of the rights of indigenous peoples. They are indigenous lawyers, including Apib’s attorney – Eloy Terena, and indigenists, socio-environmental and human rights organizations and institutions; and 13 contrary, linked to agribusiness representations and entities. Each speech will last five minutes.

“Reading the report is already an extremely important step. It was a detailed report by the Justice Edson Fachin, which brings up the major issues involved in the procedural dispute in this extraordinary appeal: the possession links regarding the areas of traditional indigenous occupation, in the light of article 231 of our Federal Constitution”, highlights Rafael Modesto, legal advisor to the Indigenous Missionary Council (Cimi) and lawyer for the Xokleng people in the case.

The oral presentations by the parties, the AGU, the PGR and the amici curiae are expected to take almost the entire Wednesday afternoon. In the sequence, the first minister to read his vote should be the rapporteur, Edson Fachin.

The native peoples, indigenous organizations and indigenists hope the rapporteur, Edson Fachin, who has already presented his vote when the process was in the Virtual Plenary, will “bring a vote similar or identical to that he had already presented, against the ‘milestone’ thesis’. The thesis is rejected by indigenous peoples, support organizations and civil society, artists, intellectuals, society as a whole.

We defend the original law, associated to the ‘thesis of indigenato’, which is the will of the original constituent of 1988”, reinforces the Xokleng people’s lawyer.
After Fachin, the other nine ministers must submit their votes. They can still request a new suspension of the process to analyze it better, the so-called request for “views”.

Disputed theses

The Court will analyze the repossession action filed by the government of Santa Catarina against the Xokleng people, referring to the TI Ibirama-Laklãnõ, where the Guarani and Kaingang peoples also 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 with regard to demarcation procedures.

At the heart of the dispute are two theses:

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

Opposed to the milestone thesis is the “theory of indigenato”, enshrined in the Federal Constitution of 1988. According to it, the indigenous right to land is “original”, that means it predates the formation of the Brazilian State itself, regardless of a date specific proof of land ownership (“milestone”) and even the administrative procedure of territorial demarcation. This thesis is defended by indigenous peoples and organizations, indigenists, environmentalists and human rights organizations.

“Our history did not begin in 1988, and our struggles are millenial, that is, they have persisted since the Portuguese and successive European invaders landed in these lands to take over our territories and their wealth”, the indigenous movement reaffirms in a note published in the Saturday (28). Indigenous people also ensure that they continue “resisting, claiming respect for their way of seeing, being, thinking, feeling and acting in the world”.

Indigenous mobilization

Last week, six thousand indigenous people from 176 peoples from all regions of the country were gathered in Brasilia in the “Struggle for Life” camp to follow the trial by the Supreme Court and to demand their rights, also protesting against the anti-indigenous agenda implemented by Bolsonaro’s government and by the National Congress, in the largest indigenous mobilization in the last 30 years.

After the beginning of the trial and the forecast that it would be resumed this Wednesday (1st), the indigenous people decided to keep the mobilization in Brasília and in the territories. Thus, around a thousand indigenous leaders, representing their peoples, remained in Brasília, and the “Struggle for Life” camp was transferred to a new location.
In the early afternoon of this Wednesday (1st), the indigenous peoples who remain in Brasília will leave the camp marching towards the Praça dos Três Poderes, where they will follow the trial by the STF.

Following the sanitary protocols to combat Covid-19, the group will remain until September 2nd and later join forces with the Second March of Indigenous Women, which takes place between September 7th and 11th.