December 6, 2023

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Brazil’s Supreme Court is about to invalidate the thesis on indigenous lands

Brazil’s Supreme Court is about to invalidate the thesis on indigenous lands

There is no opinion to form a majority against the legal thesis, which would be a victory for indigenous peoples.

At Wednesday’s hearing, which will resume tomorrow, Judge Antonio Dias Toffoli rejected the transitional landmark setting the date of publication of the Federal Constitution (October 5, 1988) as a reference for defining new areas of occupation by those communities.

So far, Minister Rapporteur Edson Fachin has voted against the interim framework, followed by Luis Roberto Barroso, Alexandre de Moraes, Cristiano Zanin and Dias Toffoli.

Judges Casio Nunes Márquez and André Mendonça supported this controversial initiative.

One argument against this framework is that the Constitution defends the rights of indigenous people qua indigenous people, which predates the formation of the state.

According to this thesis, the indigenous people, who were already in Brazilian territory long before the arrival of the Portuguese, in 1500, are the owners of the lands they occupy.

Remember, ancestral societies have decimated over the past five hundred years, with survivors expelled from many points, as well as enslaved.

For Dias Toffoli, the trial brings the resolution of conflicts, more specifically historical conflicts, because if you look at the side of history, you will find that it is judged by the invaders.

“Here we are trying to calm the historical situation. Judgment of non-specific situations. Here we judge the fates of the indigenous people of our country. “That’s what it’s about,” he reiterated.

The initiative setting the interim framework has been approved by the House of Representatives and is currently being introduced in the Federal Senate.

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The important event is an interpretation of Article 231 of the Magna Carta in which “the indigenous peoples and their social organization, customs, languages, beliefs and traditions are recognised.”

As well as “indigenous rights over the lands they traditionally occupy, with the Union being responsible for demarcating them, protecting them and ensuring respect for all their assets.”

For indigenous communities, historical land tenure is not necessarily linked to the fact that a people occupied a particular area on October 5, 1988.