• “At the outset, it should be stated that this Court has already ruled that indigenous possession differs from civil possession and is therefore not regulated by the privatization legislation in force, but rather by the constitutional provisions that configure indigenous territorial rights.”
• “In fact, civil possession can be conceptualized as “always a de facto power, which corresponds to the exercise of one of the faculties inherent to ownership” (GOMES, Orlando. Rights in rem. 19.ed. updated by Luiz Edson Fachin. Rio de Janeiro: Forense, 2004, p. 51)”
• “In the case of indigenous lands, the economic function of the land is linked to preserving the conditions of survival and the indigenous way of life, but it does not function as a commodity for these communities.”
• “Indigenous possession, therefore, is not the same as civil possession; it flows from the very formation of the identity of indigenous communities, and does not qualify as mere acquisition of the right to use the land.”
• “Land for indigenous people has no commercial value, as in the private sense of possession. It is a relationship of identity, spirituality and existence, and it can be said that there is no indigenous community without land, from an ethnic and cultural point of view, inherent to the very recognition of these communities as traditional and specific peoples in relation to the surrounding society.”

• “To begin with, it should be stated that the rights of indigenous communities consist of fundamental rights, which guarantee the maintenance of the conditions of existence and a dignified life for indigenous people. By recognizing “their social organization, customs, languages, beliefs and traditions, and the original rights over the lands they traditionally occupy”, article 231 protects indigenous Brazilians’ individual and collective rights to be guaranteed by the Public Authorities through policies that preserve group identity and their way of life, culture and traditions.”
• “In the first place, the provisions of article 231 of the constitutional text are subject to the provisions of article 60, paragraph 4 of the Magna Carta, thus constituting a permanent clause to the action of the reforming constituent, which is prevented from promoting modifications tending to abolish or hinder the exercise of individual and collective rights emanating from the constitutional command.”
  “Secondly, the rights emanating from article 231 of the CF/88, as fundamental rights, are immune from the decisions of eventual legislative majorities with the potential to curtail the exercise of these rights, since they consist of commitments signed by the original constituent, in addition to having been assumed by the Brazilian State before various international bodies (such as, for example, Convention 169 of the International Labor Organization and the United Nations Declaration on Indigenous Peoples). Therefore, they consist of enforceable obligations before the Public Administration, consisting of a structural duty to be performed by the State, and not merely conjunctural.”
• “Thirdly, since they are fundamental rights, the prohibition of retrogression and the prohibition of deficient protection of their rights apply to indigenous rights, since they are linked to the very condition of existence and survival of the communities and their way of life.”

• “As can be seen from the constitutional text itself, the native territorial rights of the Indians are recognized, and therefore pre-exist the promulgation of the Constitution.”
• Therefore, the permanent possession of lands of traditional indigenous occupation is independent of the conclusion or even the completion of the administrative demarcation of these lands, it is the original right of the indigenous communities, being only recognized, but not constituted by the legal system. The legal nature of the demarcation procedure is merely declaratory, it consists of the externalization of the Union’s property, linked and affected to the specific function of serving as a habitat for the ethnic group that traditionally occupies it. It is an activity of the Executive Branch, carried out by various bodies, in accordance with the procedure shown above, but it does not create indigenous land, it merely recognizes those that are already, by native right, in the possession of that community.

• “Indigenous rights over their lands are based on another source: Indigenato. The ‘traditionally’ refers not to a temporal circumstance, but to the traditional way in which the indigenous people occupy and use the land and the traditional way of production – in short, the traditional way in which they relate to the land, since there are more stable communities, others that are less stable, and those that have wider spaces through which they move, etc. Hence it is said that everything is done according to their uses, customs and traditions.” (SILVA, José Afonso da. Contextual Commentary on the Constitution. 8.ed. São Paulo: Malheiros, 2012, p. 889-890)”
• “The indigenous people’s right to possession and use of the land they occupied was not only not infringed by the aforementioned Land Law, but was also ensured by the provisions of article 24, paragraph 1 of Decree No. 1318/1854, which regulated said law, since it understood that possession was legitimized to the first occupant, and the indigenous people’s original right to the land in their possession was already recognized. This was, in the words of João Mendes Jr., the recognition of Indigenato, i.e. that the Indians were the first occupants of the land, and their possession was not subject to legitimization by the legal system, since it was not a question of acquiring a right, but merely of declaring its existence.”
• “Taking the issue from the normative aspect, and considering that the lands of indigenous occupation, at least from the legal perspective, were protected by the legal system and especially by the Constitutions since 1934, the “theory of indigenous fact” is not normatively justified, since I do not deduce from the Constitution any fracture in relation to the protection of indigenous territorial rights, since the simple appropriation of these lands by private individuals, encouraged or not by public entities, was never allowed by the constitutional texts.”

• “The judge who analyzes this type of litigation, even if it is a process with an abbreviated rite, must first consider the elements that characterize indigenous possession, as stated in this vote: a) demarcation consists of a declaratory procedure of the original territorial right to possession of lands traditionally occupied by an indigenous community; b) traditional indigenous possession is distinct from civil possession, consisting of the occupation of lands permanently inhabited by the Indians, those used for their productive activities, those essential to the preservation of the environmental resources necessary for their well-being and those necessary for their physical and cultural reproduction, according to their uses, customs and traditions, under the terms of §1 of article 231 of the constitutional text; c) the date of the promulgation of the 1988 Constitution does not constitute a temporal milestone for the assessment of indigenous possessory rights, under penalty of disregarding these rights as fundamental rights, as well as the entire normative-constitutional framework for the protection of indigenous possession over time; d) the establishment of a legalized possessory claim on the date of the 1988 Constitution, or even of a persistent factual conflict on October 5, 1988, is not required for the demonstration of renitent encroachment; e) the anthropological report carried out under the terms of Decree no. 1. 776/1996 is a fundamental element for demonstrating the traditional nature of the occupation of a given indigenous community, in accordance with its uses, customs and traditions; f) the resizing of indigenous land is not prohibited in the event of non-compliance with the elements contained in article 231 of the Constitution of the Republic, by means of a demarcation procedure under the terms of the governing rules.”
• “Nevertheless, authorizing the loss of possession of traditional lands by an indigenous community, in contempt of the Constitution, means the progressive ethnocide of their culture, through the dispersion of the indigenous members of that group, in addition to throwing these people into a situation of misery and acculturation, denying them the right to identity and difference in relation to the way of life of the surrounding society, the greatest expression of the political pluralism established by article 1 of the constitutional text. There is no greater legal security than complying with the Constitution.”

• At first, Minister Alexandre de Morais presented a position contrary to the “Marco Temporal” thesis. However, he then presented an “alternative” proposal, with the aim of achieving a “conciliation”, which in practice diminishes the constitutional protection of the Original Right of Indigenous Peoples over their Lands of Traditional Occupation. The thesis put forward by Minister Alexandre de Moraes could guarantee the rights of rural producers and invaders in good faith. In other words, on the same occasion that Justice Alexandre de Moraes says he is opposed to the “Marco Temporal”, he presents two impediments that will make the demarcation of Indigenous Lands much more difficult, and will not solve the historical liability of land demarcations, much less bring social peace to the countryside.

The first impediment presented by Justice Alexandre de Moraes concerns prior indemnification for property title holders who are in good faith. In other words, even in cases where the rural producer’s property overlaps Indigenous Lands of recognized traditional occupation, if he can present a certificate of ownership of the Land registered with an official notary, he will be entitled to prior indemnification. Currently, this compensation is only for bona fide improvements. Justice Moraes innovates in his vote by stating that compensation should be for the bare land, i.e. the entire property.

In the analysis of APIB’s legal department, this proposal by Justice Alexandre de Moraes mitigates the Original Right of Indigenous Peoples to their Lands of Traditional Occupation, establishing new time frames according to the date on which the rural producer is able to present a certificate of ownership of the Land registered with an official notary. By removing paragraph 6 of art. 231 of the Federal Constitution, the Justice opens up the possibility for land grabbers to increase their activities on indigenous lands.

As for the specific issue of compensation, Art. 2313, §6 of Brazil’s Federal Constitution clearly states that purchase, sale and exploitation deals involving Indigenous Lands are invalid, null and void and do not give rise to the right to compensation.

In addition to the Original Right of Indigenous Peoples to their Lands of Traditional Occupation, which has been provided for in Brazilian legislation since at least 1680, the proposal violates the Constitutional Right of Indigenous Peoples to the Exclusive Usufruct of the resources existing on Indigenous Lands.

In proposing prior compensation, Minister Alexandre de Moraes confuses private possession protected by civil law with Traditional Indigenous Possession protected by the Federal Constitution. The fact is that private possession under civil law allows property to be parcelled out and negotiated, as well as expropriated by the Brazilian state in accordance with the “public interest”, upon prior payment of fair compensation. Traditional Indigenous Possession, on the other hand, is collective and must serve the well-being and physical and cultural reproduction of indigenous communities on a permanent basis. Furthermore, it is not possible to make Indigenous Lands available or sell them, since they have no commercial value and are not subject to any kind of expropriation, but rather demarcation, through the nullity and extinction of purchase, sale and exploitation deals involving Indigenous Lands, without the right to compensation.

Minister Alexandre de Moraes’ proposal does not take into account that until the 1988 Federal Constitution – which established the need for public tenders for registry agents – registry offices were “acquired” from the public authorities by private individuals, becoming a family asset that was then transferred to their children by inheritance, with little or no intervention from the state. It also fails to take into account the serious problem of land grabbing in Brazil, which consists of legalizing illegally acquired land, which, especially during periods of military dictatorship (but not only), occurred frequently, with the direct participation of the “owners” of notary offices.

The second impediment concerns the possibility – according to the vague and generic expression of “public interest” – of the Brazilian state carrying out a “compensation of Lands to indigenous communities”, granting them lands elsewhere, which would supposedly be “lands equivalent to those traditionally occupied”;

Now, this proposal completely disregards the Indigenous Territorial Rights established in the Federal Constitution, as well as the relationship of Indigenous Peoples with their Original Lands, which are indispensable for the very maintenance of their customs, languages, traditions, identities and the conservation of their ways of life. In other words, the very survival of indigenous communities is closely linked to their territory of origin, so that it is a spiritual relationship and has nothing to do with the mere acquisition of the right to use the land.

A very worrying issue is that the court case that is judging the “Marco Temporal” aims to resolve a disagreement between the National Foundation for Indigenous Peoples/Funai and the Environmental Institute of the government of Santa Catarina/SC, which claims a stretch of the Ibirama-La Klãnõ Indigenous Land inhabited by the Xokleng, Kaingang and Guarani Indigenous Peoples as an environmental protection area. As such, the proposal to compensate squatters in good faith is a totally foreign matter to the judicial process being judged. In other words, Justice Alexandre de Moraes is extrapolating the limits of the trial, since the divergence in judgment does not involve the indemnification of third parties in good faith.

It is important to highlight the position of Justice Edson Fachin, who was the Justice responsible for conducting the proceedings and who had direct contact with the evidence and documents produced throughout the judicial process. In a position of historic value, Edson Fachin made a correct interpretation of the Federal Constitution to recognize the integrality of the Fundamental Rights of Indigenous Peoples, whose Territorial Rights serve to guarantee the very Right to Exist, since without demarcated Land, there is no physical space where cultures, traditions and ways of life can be exercised.

Finally, we conclude that Minister Alexandre de Moraes’ proposal undermines the protection of Indigenous Constitutional Rights. Furthermore, it places the burden of bearing the historical mistakes made by the Brazilian state itself on Indigenous Peoples, insofar as the guarantee of the Fundamental Rights of Indigenous Peoples under their Lands of Traditional Occupation will now depend on the existence of financial resources on the part of the Brazilian state.

If the proposal made by Minister Alexandre de Moraes prevails, the Indigenous Peoples will “win, but not take”. Or, in popular parlance, it’s a case of “passing a cat for a hare”, since at the same time as Minister Alexandre de Moraes says he is opposed to the “Marco Temporal”, he presents impediments that will make the demarcation of Indigenous Lands very difficult.