JUSTICE FOR THE INDIGENOUS PEOPLES OF BRAZIL
JUSTICE FOR THE INDIGENOUS PEOPLES OF BRAZIL
OPEN LETTER TO MINISTERS OF THE SUPREME FEDERAL COURT
Honorable Ministers of the Federal Supreme Court
We respectfully address Your Excellencies as citizens and non-indigenous citizens of this territory in which the Brazilian State was constituted and ashamed with the way in which, for centuries, we have treated the original peoples and matters that are of their interest and right.
Indigenous peoples were treated by Brazilian law as relatively incapable individuals until the 1988 Constitution. It is true that this treatment could be justified as a protection of the guardian State against deceptive and fraudulent practices to subjects without a full understanding of the social parameters of the dominant society. However, the history of expulsion, forced transfer and seizure of their lands by the State or by individuals under the acquiescence or connivance of the State evidences the deleterious effects of a State tutelage deviated from its protective purpose.
According to the latest IBGE Census (2010), 42.3% of Brazilian indigenous peoples live outside indigenous lands and almost half of them live in the South, Southeast and Northeast regions of the country. These regions were the first and the most affected by the practices of expulsion and non-indigenous occupation of the lands of the original peoples. Although a large part of Brazilian society, due to simple misinformation, thinks that the capture and occupation of indigenous lands took place in the first years of the arrival of Europeans in this territory, this is not true.
It was mainly with the expansion policies to the West initiated under Getúlio Vargas and deepened in the Military Dictatorship, with major infrastructure works and the opening of agricultural fronts, that the indigenous people felt more vigorously and violently the meaning of the advance of "civilization" on their land and its resources. The massacres of the Panará Indians, the Waimiri-Atroari and the Krenak, to mention just a few, are from this period. It is also from this period, the formation of SPI reserves, today overcrowded and chaotic, to where the Terena, Guarani and Kaiowá, from Mato Grosso do Sul, were removed to, without clarification or prior consent. expelled from their lands with the recent occupation of western Paraná and the construction of the Itaipu hydroelectric plant.
For most Brazilian indigenous peoples, the loss of traditional territories was consolidated in the middle of the 20th century. Considered incapable and protected, the Brazilian State never negotiated or gave them a concrete possibility to oppose the removals. Unlike the North American native peoples with whom the British Crown and later the US government signed treaties and against whom, since the beginnings of the US Supreme Court, natives litigated, in Brazil only very recently have the courts granted indigenous peoples the right to be heard when it comes to land rights.
And in this this Supreme Court has played a historic role. The 2020 decision taken at ADPF no. 709 in the sense that the “Articulation of Indigenous Peoples of Brazil – APIB has active legitimacy to file direct action before the Supreme Court” is a milestone for the recognition of the procedural capacity of indigenous people, under the terms of art. 232, of the 1988 Constitution. The pioneering decision of 2016, made by the Eminent Minister Fachin, at ACO 1100, which admitted the participation, as necessary passive co-partner of the indigenous community of the Xokleng and Guarani peoples in a process that discusses the annulment of the demarcation act of the Indigenous Land Ibirama Lãklãno, is another measure that corrects the historical error of the lack of participation of those most interested in the outcome of the case. This is an important change in understanding, but very recent in Brazilian jurisprudence.
However, the loss of territories was never forgotten or accepted by the indigenous people. The hard-won conquest of the rights listed in Articles 231 and 232 of the Constitution was the opportunity for the indigenous communities to finally demand from the State the recognition and demarcation of the lands from which they had been, not long ago, expelled and expropriated. As a result, from the 1990s onwards, a broad process of land demarcation began in Brazil. According to FUNAI, there are 435 indigenous lands definitively regularized in the country, and more than 98% of the demarcated area is in the Amazon.
The reality is very different in the rest of the country. Although many demarcation processes have been started, there are around 231 demarcation processes stalled and 536 indigenous requests to set up working groups to identify other traditional lands. The stoppage of a large part of the demarcation processes at FUNAI results from lawsuits filed by non-indigenous occupants (farmers or state public authorities), aiming at the annulment of administrative acts that declared the traditionality of the indigenous land currently occupied by them for commercial or do not.
Based on the argument of the “timeframe of occupation” invoked by this Court, in the judgment of Petition 3,388, to reinforce the legitimacy of the demarcation of the Raposa Serra do Sol indigenous land, Federal Judges and Federal Regional Courts have, a contrario sensu and indiscriminately , annulled the acts of demarcation of indigenous lands. They base their decisions on the absence of the right to demarcation in the event that the Indians were not in possession of the land on the date of the promulgation of the 1988 Constitution. This Supreme Court created an exception to the rule: “the reoccupation did not occur due to persistent dispossession due to part of non-Indians”. However, in two cases in which it annulled land demarcations in the State of Mato Grosso do Sul, the Second Panel of this Court demanded proof that the “possessory conflict started in the past has persisted until the time frame of October 5, 1988, materialized by circumstances of fact and judicialized possession controversy”.
Excellencies, how can we demand proof of resistance to stubborn dispossession from vulnerable people and communities, often transferred by default to other spaces, to which the State protected and did not recognize civil capacity? Demand evidence from subjects who were not even cited or admitted to the respective legal process? That even, most of the time, did not even know of the existence of the process of a process of this nature?
While these processes are slowly unfolding in the Brazilian justice system, conflicts and violence against indigenous communities are multiplying throughout the country. Tired of the State's unwillingness to guarantee their return to their lands, indigenous communities have occupied the lands identified or claimed by FUNAI and suffered intense armed attacks by rural militias, which resulted in deaths, beatings, torture and all sorts of inhumane and humiliating crimes characterized as true crimes against humanity. Annulment court decisions will not end conflicts, on the contrary, they will intensify them. Vulnerable and without access to land, these communities will simply be exterminated, if not by weapons, due to the absolute absence of a territorial base so that the next generations can enjoy a space to maintain their social organization, customs, languages, beliefs and traditions.
It is because of these facts that this Court finds itself these days in the face of the main indigenous case in its history: RE No. 1.017.365/SC, which it rightly recognized as having general repercussion. This process deals precisely with the dispossession of lands belonging to indigenous communities that, in 1988, were not in possession in the face of the dispossession of non-Indians and the impossibility of resisting.
The treatment that the Brazilian Justice has given to indigenous communities, applying the so-called "time frame thesis" to nullify land demarcations, is without a doubt one of the clearest examples of injustice that can be offered to students in a theory of justice course. There is no angle from which to look and find any shadow of justice and legality.
This Supreme Court has in its hands the opportunity to correct this historical error and, finally, to guarantee the justice that the Constitution determined to be done to the original peoples.
In a 2020 decision, in the McGirt v. Oklahoma, the US Supreme Court held that the land reserved for the Muscogee Creek Indians, in what is now the State of Oklahoma, through the 1832 and 1866 Treaties, was not deconstituted by the subsequent allotment and transfer of parts of the land to non- Indians in 1901, because Congress did not pass any law ordering the extinction of the reserve. As a result, a considerable part of eastern Oklahoma State, including the city of Tulsa, was recognized by the Supreme Court as an Indian land. Judge Gorsuch, appointed by then President Donald Trump and editor of the leading vote, pointed out that no interpretation other than this could be allowed and, if so, the Supreme Court would be facing the law of the strong, not the law of the rule of law: “[That would be the rule of the strong, not the rule of law”.
We hope that this Court will make the rule of law prevail. As non-indigenous Brazilians and constrained by the indignity of the treatment given to native peoples, we urge this Court not to triumph Thrasymachus' conception of justice refuted by Socrates: “justice serves the interests of the strongest and what is unfair is useful and advantageous for him.” (PLATO, The Republic, 334c).
June 23, 2021
Maria Alice Campos Freire
International Council of Thirteen Indigenous Grandmothers