Unless there is a change in understanding, the time frame has been overturned

Ministers Luiz Fux, Cármen Lucia, Gilmar Mendes and Rosa Weber spoke out this Thursday (21/9) against the thesis of the time frame for demarcation of "indigenous lands". With this, the score was 9 to 2 for the Federal Supreme Court (STF) to change its traditional understanding and start evaluating the issue in order to facilitate the possession of areas by indigenous people. In theory, this judgment can be appealed.

The score is: (a) against the time frame: Edson Fachin (rapporteur), Alexandre de Moraes, Cristiano Zanin, Luís Roberto Barroso, Dias Toffoli, Luiz Fux, Cármen Lucia, Gilmar Mendes and Rosa Weber; (b) in favor: Nunes Marques and André Mendonça.

According to Cultivar Magazine explained in an article published yesterday (here), "temporal framework, also known as theory of indigenous fact, is a legal thesis according to which indigenous peoples have the right to occupy only the lands that they occupied or already disputed on the date of promulgation of the 1988 Constitution. It is the traditional understanding of the STF. You can see it, for example, in RE 219983: 'the rules defining the domain of items I and XI of article 20 of the 1988 Federal Constitution do not cover lands that, in the remote past, were occupied by indigenous people'.

It is opposed to indigenato theory (or the immemorial possession), according to which the rights of indigenous peoples over traditionally occupied lands predate the creation of the Brazilian state, and it is only up to the latter to demarcate and declare territorial limits".

The trial ended after 18pm today. The thesis will be defined in the session next Wednesday (27/9). The rapporteur presented several theses for analysis. Specifically regarding the time frame, he suggested the adoption of the following: "the constitutional protection of original rights over the lands they traditionally occupy does not depend on the existence of a time frame on October 05, 1988, as there is no basis for establishing any time frame".

It is also important to explain that "indigenous lands" consist of rights of possession and use. The property -- unless the STF changes its understanding further -- belongs to the Union.

UPDATE on 27-09-2023

The ministers decided today on the content of the theses of general repercussion established following the judgment of this action. According to information from the STF, they will serve as a parameter for resolving at least 226 cases.

The theses:

I - Demarcation consists of a declaratory procedure for the original territorial right to possession of lands traditionally occupied by an indigenous community.

II. Traditional indigenous possession is distinct from civil possession, consisting of the occupation of lands permanently inhabited by indigenous people, those used for their productive activities, those essential to the preservation of environmental resources necessary for their well-being and those necessary for their physical and cultural, according to its uses, customs and traditions, in accordance with §1 of article 231 of the constitutional text.

III. The constitutional protection of the original rights over the lands they traditionally occupy does not depend on the existence of a time frame on October 5, 1988 or the configuration of the persistent expropriation, such as physical conflict or judicial controversy persisting at the date of the promulgation of the Constitution.

IV - If there is traditional indigenous occupation or persistent embezzlement contemporary to the promulgation of the Federal Constitution, the compensation regime relating to useful and necessary improvements, provided for in art. 231, §6, of CF/88.

V - In the absence of traditional indigenous occupation at the time of the promulgation of the Federal Constitution or persistent embezzlement at the date of the promulgation of the Constitution, perfect legal acts and transactions and res judicata relating to fair title or possession of good property are valid and effective, producing all their effects. -faith of lands of traditional indigenous occupation, assisting the private right to fair and prior compensation for necessary and useful improvements, by the Union; and when the resettlement of individuals is unfeasible, they will be entitled to compensation from the Union (with the right of return from the federative entity that titled the area) corresponding to the value of the bare land, paid in cash or in agrarian debt bonds, if it is in the interest of the beneficiary, and processed in files separate from the demarcation procedure, with immediate payment of the undisputed part, guaranteed the right of retention until payment of the undisputed amount, allowing self-composition and the regime of art. 37, §6 of the CF.

VI - Compensation is not applicable in cases that have already been pacified, arising from indigenous lands already recognized and declared in a demarcation procedure, with the exception of judicialized and ongoing cases.

VII - It is the Union's duty to carry out the demarcation procedure for indigenous lands, with the formation of reserved areas being permitted only in the face of the absolute impossibility of implementing the constitutional order of demarcation, and, in any case, the indigenous community must be heard, seeking, if necessary, , self-composition between the respective federative entities to identify the lands necessary for the formation of reserved areas, always keeping in mind the pursuit of public interest and social peace, as well as proportional compensation to indigenous communities (art. 16.4 of Convention 169 ILO ).

VIII - The establishment of a procedure for resizing indigenous land is not prohibited in the event of non-compliance with the elements contained in article 231 of the Constitution of the Republic, through a demarcation procedure within five years of the previous demarcation, and it is necessary to prove a serious and irremediable error in the conducting the administrative procedure or defining the limits of indigenous land, except for ongoing legal actions and requests for review already filed by the date of conclusion of this trial.

IX - The anthropological report carried out under the terms of Decree No. 1.775/1996 is one of the fundamental elements for demonstrating the traditional occupation of a determined indigenous community, in accordance with its uses, customs and traditions, in the form of the aforementioned normative instrument.

X - The lands of traditional indigenous occupation are the permanent possession of the community, with the indigenous people having exclusive use of the richness of the soil, rivers and lakes found there.

XI - Lands of traditional indigenous occupation, as public lands, are inalienable, unavailable and the rights over them are imprescriptible.

XII - The traditional occupation of indigenous lands is compatible with constitutional protection of the environment, ensuring the exercise of traditional indigenous activities.

XIII - Indigenous peoples have civil and postulatory capacity, being legitimate parties in the processes in which their interests are discussed, without prejudice, under the terms of the law, to the competing legitimacy of FUNAI and the intervention of the Public Ministry as inspector of the law.