Photo: Tukumã Pataxó/Apib

Apib will file an action of unconstitutionality in the Supreme Federal Court (STF)

The National Congress overturned President Lula’s vetoes to Bill 2903, the now Law 14.701/2023, this Thursday (December 14). As a result, they turned the ruralist thesis of the Marco Temporal into law and approved other crimes against indigenous peoples.

The Articulation of Indigenous Peoples of Brazil (Apib) emphasizes that ‘Rights are non-negotiable,’ and in response to the outcome of the vote, they will file a Direct Action of Unconstitutionality (ADI) with the Supreme Federal Court (STF) to request the annulment of this law, considered by the coalition as the law of indigenous genocide. The protocol can only be initiated after the promulgation of the law, which will occur within 48 hours, and the action will be proposed jointly with the political parties PT, REDE, PSOL, and PSB.

“This law is unconstitutional and should be examined by the Supreme Federal Court (STF). However, until the Direct Action of Unconstitutionality (ADI) is ruled upon by the Supreme Court justices, our relatives are facing invasions in their territories, assassinations, and environmental devastation. That is why we request the granting of urgent injuction! We cannot wait while communities are dying,” says Dinamam Tuxá, executive coordinator of Apib.

On Thursday afternoon, Apib filed a request for a hearing at the Supreme Federal Court (STF) to address the threats to indigenous rights and the Federal Constitution posed by the new law (14.701/2023). Apib and its seven regional grassroots organizations (Apoinme, ArpinSudeste, ArpinSul, Aty Guasu, Conselho Terena, Coaib, and Comissão Guarani Yvyrupa) emphasize that the struggle continues, and the indigenous movement remains mobilized both nationally and internationally.

“The future of humanity depends on [indigenous] peoples and the demarcation of Indigenous Lands. The primary conference addressing climate change, COP28, concluded this week, and once again, the National Congress reinforced its commitment to do harm. The Marco Temporal is a proposal created by agribusiness and has already been invalidated by the Supreme Federal Court (STF),” emphasizes Kleber Karipuna, executive coordinator of Apib. 

Only a handful of presidential vetoes were upheld, consequently EXCLUDED from the Genocide Law, and they are as follows:

  • Threats to isolated indigenous peoples;
  • The proposal intending to authorize the use of genetically modified organisms (GMOs) in Indigenous Lands;
  • The racist proposal regarding the reclaiming of indigenous lands based on the “alteration of cultural traits”.

In a joint session between Congressional Deputies and Senators on this Thursday, which overturned President Lula’s vetoes, showed a final tally of 321 deputies against and 137 in favor of the vetoes. In the Senate, the vote was 53 to 19 in favor of lifting the vetoes.

Constitutional violations

In addition to Marco Temporal, other unconstitutional aspects of the law are already in effect and violate articles of the Federal Constitution, as well as international treaties on human rights signed by the Brazilian State.

The effective participation of states and municipalities in all stages of the demarcation process and the regulation of cooperation between indigenous and non-indigenous people for the exploration of economic activities are highlighted by Apib as unconstitutional. According to the organization, these aspects of the law may jeopardize demarcations and intensify non-indigenous encroachments on Indigenous Territories.

The new law also states that the exclusive usufruct right cannot override the interest of national defense and sovereignty policy. Indigenous leaders from Apib emphasize that this provision may open the door to violating the exclusive usufruct rights of indigenous peoples under the pretext of ‘national defense interest.’

In the Direct Action of Unconstitutionality (ADI), Apib’s legal department requests Minister Edson Fachin to be appointed as the rapporteur. Minister Fachin was the rapporteur for Extraordinary Appeal (RE) No. 1.017.365, in which the Supreme Federal Court (STF) rejected the Marco Temporal thesis, that is, the possibility of adopting the promulgation date of the Federal Constitution as the benchmark for defining the traditional occupation of the land by indigenous communities.

The constitutional protection of the original rights over the lands traditionally occupied is independent of the existence of a temporal framework on October 5, 1988, or the configuration of persistent dispossession, such as physical conflict or ongoing judicial dispute at the time of the Constitution’s promulgation,” says a passage from the Supreme Court’s decision. The judgment on the Marco Temporal in the STF was concluded on September 27, with 9 votes against and 2 in favor of the legal thesis.

Deforestation and the destruction of biodiversity in indigenous lands pose an international threat to the global climate balance. In the last 30 years, Brazil has lost 69 million hectares of native vegetation. However, only 1.6% of this deforestation was recorded in indigenous lands. Additionally, indigenous territories hold 80% of the planet’s biodiversity, but they are under threat from the expansion of agribusiness and extractive industries, as well as from development and tourism, as highlighted in the 2021 UN State of the World’s Indigenous Peoples report.

Maurício Terena, the coordinator of Apib’s legal department, contends that Law No. 14.701/2023 exhibits constitutional flaws and reflects a form of parliamentary vendetta. He notes that the Senate scheduled the voting for the PL on the same day as the Marco Temporal judgment at the STF. Additionally, Terena underscores that one of the primary roles of the Supreme Court is to safeguard the fundamental rights of minority social groups, and he expresses hope that this mandate will be upheld through the ADI.

We live in a system of checks and balances, and the limit imposed by the Legislative Power is not to approve laws that violate the fundamental clauses established in the Federal Constitution. The rights of indigenous peoples are inherent and were recognized in 1988, and this must be respected,” says Terena.

Bill 2903 and Lula’s Partial Veto

Throughout the year of 2023, Bill 2903 represented one of the most significant threats to the rights of indigenous peoples in Brazil. The proposed legislation prioritizes the interests of large landowners at the expense of indigenous rights and was urgently approved by the Federal Senate on September 27, the same date the Supreme Federal Court (STF) concluded the Marco Temporal judgment.

Contrary to the indigenous movement’s demand for a complete veto of the bill, President Lula announced a partial veto on October 20. Lula removed the Marco Temporal from the proposal, as well as the cultivation of GMOs in Indigenous Lands and the construction of major infrastructure projects, such as hydroelectric plants and highways, without prior, free, and informed consultation. The president’s veto also eliminated the relaxation of policies protecting voluntarily isolated indigenous peoples from the bill.

“The approval of projects that benefit the Executive [branch of the Republic], such as the Tax Reform on November 8, is part of this quid pro quo, and we reaffirm that RIGHTS ARE NON-NEGOTIABLE! These actions only perpetuate the dominance of capital interests, primarily represented by the ruralist and evangelical caucus, among others, which bolster the survival of the far-right that has plagued the lives of the Brazilian people in recent years. The wheeling and dealing of our rights to pass the Tax Reform involved the Federal Government signaling to lawmakers the green light for overturning President Lula’s vetoes to Bill 2903, which aims to turn the Marco Temporal and other crimes against indigenous peoples into law,” states Apib’s statement.

At the time, the vote on the presidential vetoes to Bill 2903 was initially scheduled for November 9 but was postponed several times until the vote took place on December 14. Read Apib’s full statement published on November 10 here.

Apib underscores that the actions of the National Congress result from the direct involvement of Brazilian politicians in the invasion of indigenous lands, as revealed in the dossier ‘The Invaders’ by the journalistic website ‘De olho nos ruralistas.’ According to the study, representatives from the Congress and the Executive branch own approximately 96,000 hectares of land that overlap with indigenous territories.

Additionally, many of them were funded by farmers known to be invaders of Indigenous Territories (TIs), who donated R$ 3.6 million to the electoral campaigns of ruralists. This group of invaders financed 29 political campaigns in 2022, totaling R$ 5,313,843.44. Out of this total, R$ 1,163,385.00 was allocated to the defeated candidate, Jair Bolsonaro (PL).

In the past week, a delegation from the indigenous organizations and leaders representing Apib visited Dubai, United Arab Emirates, for the Conference of the Parties to the United Nations Framework Convention on Climate Change, COP28. This year had the largest participation of all conferences and Apib raised awareness about rights violations and international political agenda.

At COP28, the delegation reinforced the state of Indigenous Emergency and demanded the guarantee of rights and the demarcation of Indigenous Lands. For Apib and its regional grassroots organizations, it is not possible to address the climate crisis without demarcation, and it is crucial to curb the violence funded by agribusiness against indigenous lives.

Learn more about Marco Temporal: 

About Apib

The Articulation of Indigenous Peoples of Brazil (Apib) is a national reference for the indigenous movement in Brazil, created from the bottom up. It brings together seven regional indigenous organizations (Apoinme, ArpinSudeste, ArpinSul, Aty Guasu, Conselho Terena, Coaib, and Comissão Guarani Yvyrupa) and was established with the purpose of strengthening the unity of our peoples, fostering coordination among different regions and indigenous organizations in the country, as well as mobilizing indigenous peoples and organizations against threats and assaults on indigenous rights.

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