STF position on demarcations of indigenous lands may be changed

The Federal Supreme Court, in the noisy judgment of the demarcation process of the Raposa Serra do Sol indigenous land, after intense discussion and evaluation, established the guidelines for the demarcation and expansion of indigenous lands in the country. Among these guidelines, the STF defined that the demarcation of indigenous areas must be restricted to those occupied and inhabited on a permanent basis at the time of promulgation of the 1988 Federal Constitution, that is, the time frame set to assess indigenous occupation, for recognition purposes. and demarcation of indigenous land was dated October 5, 1988.
 
Twelve years after this emblematic trial, the STF decided to consider the issue again. The re-analysis of this topic began in a virtual session on June 11th, interrupted at the request of Minister Alexandre de Moraes. The first and only vote presented so far, by reporting minister Edson Fachin, aims to change the understanding regarding the time frame of indigenous occupation that had been established in the judgment of the Raposa Serra do Sol case. The trial will continue, on a date to be rescheduled, with the presentation of the votes of the other ministers. However, the possibility of a change of understanding by the STF now causes concern for rural producers, as it could increase legal uncertainty in this delicate and ideological issue.  

According to lawyer Frederico Buss, from HBS Advogados, without a shadow of a doubt, the Federal Constitution authorizes the Union to recognize original rights and carry out the demarcation of traditionally occupied lands, “that is, permanently inhabited by Indians, used for their activities productive, essential to the preservation of environmental resources necessary for their well-being and their physical and cultural reproduction”, he observes.

However, according to the expert, a careful reading of the Constitution leads to the following conclusions: it is necessary and indispensable to prove the traditional occupation of indigenous land, traditionally occupied lands are considered to be areas permanently inhabited by Indians and the right to recognition and demarcation must be limited to Indians who have proven, on the date of promulgation of the Constitution, to be occupying, inhabiting and using indigenous land. “The Constitution, at no time, authorizes or foresees the possibility of creating indigenous territories on properties legitimately acquired decades or more than a century ago by their owners and predecessors, nor without the payment of compensation for the value of the land, as advocate groups advocate. of the indigenous cause”, he highlights.

The STF, supported by the understanding consolidated in the judgment of the Raposa Serra do Sol case, in several judgments, reiterated that “the date of promulgation of the Federal Constitution is an irreplaceable reference for the time frame for verifying the existence of the indigenous community and that the main objective of this delimitation was to seek to put an end to endless disputes over land, between Indians and farmers, many of which, as we know, were quite violent”. In the words of the STF itself until then, the areas subject to demarcation are the lands that the Indians “traditionally occupy, pay attention, and not those that they may occupy. Nor the lands already occupied at other times, but without sufficient continuity to reach the objective milestone of October 5, 1988”.

In conclusion, according to Buss, in the event of a change in the STF's position in relation to the requirement for a time frame for indigenous occupation, the door will be open for, at the discretion of the predominant ideological position in Funai and the Federal Government, distorted administrative processes to proliferate in relation to the constitutional text with a view to creating indigenous territories in flagrant affront to the rights of rural producers who fulfill the social function of property in properties legally acquired with the fruits of their work.