Indigenous Brazilians celebrate land claims win - but fight goes on

Brazilian Xokleng Indigenous people celebrate after a majority on Brazil's Supreme Court voted against the so-called legal thesis of 'Marco Temporal' (Temporal Milestone), in Brasilia, Brazil September 21, 2023. REUTERS/Ueslei Marcelino

Brazilian Xokleng Indigenous people celebrate after a majority on Brazil's Supreme Court voted against the so-called legal thesis of 'Marco Temporal' (Temporal Milestone), in Brasilia, Brazil September 21, 2023. REUTERS/Ueslei Marcelino

What’s the context?

Supreme Court rejects controversial deadline for Indigenous land demarcation, but agribusiness lobby pushes back in Congress

  • Top court rejected 1988 cutoff for Indigenous claims
  • Agribusiness lobby pushes for constitutional reform
  • Bills in Congress could undermine Indigenous land rights

RIO DE JANEIRO - A few days ago, hundreds of Xokleng Indigenous people gathered around a screen in Ibirama-La Klãnõ territory in southern Brazil to watch the Supreme Court vote on Indigenous land rights.

The crowd erupted into cries and ritual dancing as the judges blocked, with nine votes to two, an attempt backed by the country's big agribusiness sector to stop Indigenous people from claiming land they did not physically occupy prior to 1988.

"We started to hug, to remember our elders," said Rafael Ndili, a Xokleng chief, by phone. "It is a thrill that only those who have been in our skins, who have lived our conflicts, can understand."

Persecuted by settlers and the government - which rewarded mercenaries for bringing it the ears of dead natives in the early 20th century - the Xokleng reclaimed part of their ancestral land in the 1990s, leading to the court battle that has played out in recent weeks.

With last Wednesday's ruling, 24,000 hectares (59,305 acres)may now be added to the Xokleng's current 14,156 hectares of hilly territory, which is used for agriculture and as a forest reserve. Hundreds of other Indigenous communities across Brazil could also benefit from the Supreme Court decision.

They may, however, be thwarted by politicians as shortly after the Supreme Court vote, the agribusiness caucus in Congress vowed to double down on its efforts to push through a bill to establish 1988 as the cutoff date for Indigenous land demarcation, on a collision course with the Supreme Court.

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Pedro Lupion, president of the pressure group, warned of "an extremely perilous situation" after the Supreme Court vote.

"We foresee the dismantling of the right to private property and of legal security in the countryside", he told journalists.

Lupion, a member of the federal chamber of deputies, added that his group "cannot accept that the Supreme Court crosses its limits".

Indigenous land rights are protected under Brazil's Constitution, which prompted the Supreme Court to consider whether its 1988 adoption should be used as a cutoff date for land demarcation - an argument the judges rejected.

In parallel, Congress is considering the same issue through a bill passed late May in the lower house, and which is now sitting with a commission at the Senate.

According to Lupion, a vote on the bill will happen - although he conceded the provision on the cutoff date will very likely be overruled by the Supreme Court, based on its recent decision.

As an alternative, he said the agribusiness caucus is moving to push through two other bills to reform the Constitution in a bid to fix 1988 as a deadline for Indigenous land demarcations.  

If they do succeed in amending the Constitution, the changes could subvert the Supreme Court's current interpretation of it.

The agribusiness caucus - which holds 374 of 594 seats in Congress -  potentially has more than the three-fifths of the votes needed to change Brazil's Constitution.

But even those changes could be barred by the Supreme Court if it finds they go against fundamental rights, said Deborah Duprat, a former federal deputy attorney general.

Currently, 12.6% of Brazil's land is covered by fully recognized Indigenous territories, according to the NGO Instituto Socioambiental, while 41% is occupied by farms, government data shows.

The Supreme Court ruling means settlers and farmers may now have to leave areas reclaimed by Indigenous people, if that land is recognized by the government as Indigenous territory.

Strong constitutional protection

In 2014, Brazil's National Truth Commission - investigating human rights violations in the second half of the 20th century - estimated that 8,350 Indigenous people were killed as a result of land-grabbing, forced displacement, disease, imprisonment and torture, especially during the 1964-1985 military dictatorship.

Written after the country returned to democracy, Brazil's Constitution strongly protects human and environmental rights.

In the case of Indigenous peoples, it guarantees them the "original rights to the lands they traditionally occupy", to preserve "environmental resources necessary for their wellbeing".

A cut-off year for demarcating the land was intentionally left out of the Constitution, to allow Indigenous peoples to claim land they had been driven away from.

But Indigenous reoccupation of farmland has long been a complaint among Brazil's agribusiness sector.  

Court battleground for rights

In addition to the cutoff date, the lawmakers' bill currently being discussed by the Senate commission includes a series of other changes to Indigenous land rights that will likely inspire a fresh set of court challenges by leftist parties, and human rights and Indigenous groups.

The bill allows anyone to question the process of establishing an Indigenous territory, at any stage - and mandates compensation of farmers for their land, if it gets recognized as Indigenous territory.

Currently, farmers only receive payments for improvements they have made to land, such as fences or crops. 

Dinamam Tuxá, coordinator of Apib, Brazil's largest organization of Indigenous groups, believes this could make new land demarcations impossible as they would depend on parliament, which he fears would not approve the budget for compensation.

The bill also vetoes the expansion of recognized territories, and allows the government to take reserves away from Indigenous communities if there is an "alteration of cultural characteristics" - raising fears Indigenous people could have their identities questioned by the authorities.

"If an Indigenous (person) is wearing jeans, does that mean they have lost 'cultural characteristics'?", asked Juliana de Paula Batista, senior legal advisor at Instituto Socioambiental.

Reserves could equally be revoked if the area is deemed unnecessary to preserve Indigenous culture or guarantee "decent subsistence", according to the bill. 

It also allows the establishment of military bases and roads, exploitation of energy sources and protection of strategic resources in Indigenous territories without consulting communities.

In addition, the state would be allowed to contact isolated Indigenous peoples to provide medical assistance and carry out "public interest" actions.

Currently, such contact usually happens when it is initiated by Indigenous groups themselves, a policy intended to protect them from diseases and other social problems.

Apib's Tuxá said the consequences of the bill "would truly be genocide", adding that Indigenous peoples "know that we won the battle, but the fight keeps on".

Legal expert Duprat said that with Congress largely unsympathetic to Indigenous rights - despite the more conciliatory tone of President Luiz Inácio Lula da Silva's left-wing government - the courts will likely remain the central battleground.

The Supreme Court has also been instrumental in protecting the rights of LGBTI people, Black Brazilians and women. 

"Across the world, there is a growing understanding that fundamental rights cannot be governed by the whims" of majorities over minorities, Duprat added.

(Reporting by Andre Cabette Fabio; Editing by Megan Rowling.)

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