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STF ignores Congressional pressure, doubles down on the bet, and keeps Indigenous lands on the agenda

The ministers resume this Wednesday 7, historic judgment that will have an impact on the demarcations; The decision may concern a bill approved by deputies and awaiting analysis in the Senate

OR Federal Supreme Court (STF) should resume this Wednesday 7, the judgment on the thesis of time frame for the delimitation of indigenous lands. Voting shouldn’t end this week, shortened by the Corpus Domini holiday.

The process has been spearheaded at a time when debate on the matter is advancing in Congress. A House of Representatives approved last week a bill to limit demarcations to territories occupied before 1988 – the date of promulgation of the Constitution. The proposal went to the Senate.

Putting action on the agenda, the president of the STF, Rose Weberdenied the ruralist group and the president of the Chamber, Arthur Lira (PP-AL), in favor of the bill. Deputies and senators linked to agribusiness hoped to dissuade the court from resuming the trial.

The Supreme has doubled the bet and now has the ball in hand. OR Stadium he found that the pressure from Congress was not received well by one wing of the Court, which he identified as an attempt to corner ministers. Those who follow the case do not rule out the possibility that some magistrate may ask for a re-examination – more time for the analysis of the case – and postpone the vote again, which in practice would give time to calm the spirits between the Powers.

If the ministers decide that the argument is unconstitutional, the bill will be put in check. The PL deals with other issues, which could continue to be dealt with, but the section on timing will need to be revised, according to the experts consulted by the Stadium.

“Any legislative decision incompatible with the eventual decision of the Court of Cassation, especially since it is a bill, tends not to proceed and lacks legitimacy”, explains the lawyer Gabriel Sampaio, who follows the trial at the Stf as representative of the NGO Conectas Human Rights.

With the change of government and the alignment of the leadership Luiz Inácio Lula da Silva with the defense of indigenous rights, time began to flow in favor of the original peoples. The Petitist has promised to speed up the demarcations.

The lawyer Eloy Terena, former legal coordinator of the Articulação dos Povos Indígenas do Brasil (Apib), is one of the main voices of the Judiciary against the thesis of the time frame. Now he is executive secretary of the Ministry of Indigenous Peoples, which reinforces the change of position towards the government Jair Bolsonaro (PL). During the administration of the former president, the Advocate General of the Union (AGU) defended the timing as a guarantee of “social peace”.

Representatives of the indigenous movement traveled to Brasilia and camped in Praça da Cidadania to protest against the times. Campaigns with artists and environmentalists have also been launched on social media, to try to mobilize public opinion.

“If the deadline is approved, the indigenous lands that have already been delimited could be reviewed in court,” warns lawyer Maurício Terena. “(Edson) Facin (ministerreporter) made a historic vow. We believe the trial will be very fierce. If the thesis is approved, regardless of the terms, it will be a loss for indigenous peoples”.


The process of the times has had subsequent postponements in STF. So far only two ministers have voted: Fachin, rapporteur of the process, and Kassio Nunes Marques. They positioned themselves in opposite directions.

There are two controversial legal theses. On the one hand, Fachin defends the right of indigenous peoples to the territory as originating and not dependent on a timetable.

The minister argued that the legal framework for the protection of indigenous property rights began to be built before the 1988 Constitution. Possession, in the rapporteur’s assessment, should be defined by traditionality and not by an arbitrary milestone in time .

“In the case of indigenous lands, the economic function of the land is viscerally linked to the preservation of indigenous survival conditions and lifestyles, but it does not function as a commodity for these communities,” he highlighted in his vote.

The legalization of demarcations is one of the main challenges for indigenous peoples. Cases tend to drag on for years in court, which allows ranchers and miners to continue working on the claimed lands.

Nunes Marques, in turn, was in favor of the timing, in what was one of his first votes upon arriving at the STF. He argued that the solution reconciles public and indigenous interests and guarantees legal certainty in land delimitation.

“On the one hand, it is admitted that the Indians left in 1988 and their subsequent generations have the right to own their traditional lands, so that they can freely develop their way of life. Times long gone, and already accommodated by time and historical dynamic,” he defended.

Source: Terra

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