Public Note #18 – In support of land demarcation by the Federal Supreme Court

The Dom Paulo Evaristo Arns Commission for the Defense of Human Rights – the Arns Commission – hereby announces its support for the demarcation of lands as a measure that aims to guarantee rights to the native peoples of Brazilian territory, especially the Ibirama-Laklãnõ people.

The Federal Supreme Court is expected to soon judge Extraordinary Appeal (Recurso Extraordinário, in Portuguese) No. 1,017,365, which refers to the demarcation of the Ibirama-Laklãnõ Indigenous Land. This ruling is of the utmost importance because it has as its background the discussion about the validity of the “time frame” thesis.

According to the time frame thesis, Indigenous peoples who are incapable of demonstrating that they were in possession of their traditional lands, or that they were resisting their undue usurpation, on October 5, 1988 – the moment when the Constitution was promulgated – will not be able to claim and exercise their original right of ownership of these lands.

This thesis emerged in the judgment of the demarcation of the Raposa Serra do Sol Indigenous Land and was incorporated by Binding Legal Opinion (Parecer Normativo Vinculante, in Portuguese) No. 01/2017/GAB/CGU/AGU, published by the Attorney General’s Office, on July 19, 2017, and approved by the President of the Republic. It is certain that the “time frame” issue not only subverts the Federal Constitution but also has the potential to thwart the full exercise of the original rights of Indigenous peoples over the lands that they have traditionally occupied.

The 1988 Constitution acknowledged, through its Article 231, heading, that Indigenous people have “original rights to the lands they traditionally occupy. The Union is responsible for demarcating such lands (...)”. In the words of José Afonso da Silva, it is a birthright that predates the 1988 Constitution, which has only acknowledged it.

According to Paragraph 1 of the same article of the Constitution, Indigenous lands are “those on which they live on a permanent basis, those used for their productive activities” and indispensable to their “well-being and for their physical and cultural reproduction, according to their habits, customs and traditions”. Therefore, the Constitution did not establish any condition for the exercise of this original right, other than the demonstration of the “traditionality” of the occupation, according to the “habits, customs and traditions” of the Indigenous peoples themselves.

This demonstration of “traditionality” must be done by an anthropological report, not by registry office verification, since the original right of Indigenous peoples to the ownership of their traditional lands is not to be confused with the institute of possession established by the Civil Code. The original Indigenous right does not result from the demonstration of the “exercise of a de facto power” over the lands, as required by civil law, or from a legal resistance in relation to those who usurped them, but from their “traditional occupation”, as rightly demonstrated by Federal Public Prosecutor’s Office Technical Note No. 1/2020/6ª CCR/MPF.

If the possession of the land traditionally occupied by Indigenous people has been usurped in some way, it is not possible to demand – for the purposes of recognizing the original rights of Indigenous peoples over their lands – the demonstration of legal resistance or a situation of actual land possession conflict at the time of the promulgation of the 1988 Constitution. The need to demonstrate a persistent wrongful possession is foreign to the Constitution. This is a condition that is not foreseen in its text; and it cannot be accepted that the Constitution is altered by a mere opinion report from the Attorney General’s Office, even more so because it is a constitutional clause that presents stony nature.

In view of the growing threats to Indigenous populations and their rights recognized by the Constitution, as well as the risks that the prevalence of the “time frame” thesis imposes on the survival of these peoples, the Arns Commission urges the Justices of the Federal Supreme Court – through memorials for the trial – to declare the “time frame” thesis unconstitutional in view of the provisions of Article 231 of the Federal Constitution.

Photo: Leo Milano/Mobilização Nacional Indígena