Recognized worldwide for its natural resources and one of the largest tropical forests in the world, the Amazon Forest, Brazil is also characterized by presenting contexts of permanent aggressions on indigenous territories that date from colonization to the present day. According to the census of the Institute of Brazilian Geography and Statistics (IBGE) 2010, the country has 305 different peoples and 274 indigenous languages, representing 0.4% of the Brazilian population.
The current Brazilian Federal Constitution (from 1988) recognizes the subjectivities of indigenous peoples: their social organization, customs, languages, beliefs and traditions. The original right over land was also recognized and the concept of “traditionally occupied land” was created. All of this in theory, but rarely seen in practice. The federal government also has the power to demarcate indigenous lands. What then happens in Brazil is an omission and delay in resolving conflicts involving indigenous peoples.
Economic sectors that have interests in land and natural resources continue to organize themselves to reduce the scope of the rights conquered in 1988 and in the international level. It is easy to find daily news of violence against individuals and groups, whether they are indigenous or people who defend them in Brazil.
For indigenous peoples, “belonging to the land, instead of owning it, is what defines the indigenous. The land is the body of the Indigenous peoples, the indigenous peoples are part of the body of the Earth. The relationship between land and body is crucial” (VIVEIROS DE CASTRO, 2016). For indigenous peoples, lands cannot be converted into private property, because they belong to the “Creator”, humans are here in transit, just as the geographical borders created by States have no reason to exist.
The current discussion and legal theory in Brazil that threat the “original rights”
Called “Temporal Landmark”, this theory states that only those indigenous peoples who were living on the land at the time the Federal Constitution of 1988 was enacted would be entitled to the territory. And if they were not living on them, the land should be under judicial or administrative dispute during that time to be recognized as their indigenous territory.
This theory is somewhat absurd since indigenous peoples, even before the creation of the Federal Constitution of 1988, had been expelled from their territories for the construction of hydroelectric plants, expelled by large companies, colonizers, even under threat of the firearms, of violence, expelled by the government itself through its institutes, such as the National Institution of Colonization and Agrarian Reform (INCRA) and transferred to other places by government agencies such as the extinct Indian Protection Service (SPI) and the National Foundation of Indians (FUNAI).
Another absurd point in this theory is that the lands should be under judicial or administrative dispute in 1988. It turns out that from the colony to 1988, Brazilian indigenous peoples did not have direct access to justice. Since 1910, they were under the Indian Protection Service (SPI). In 1928 the Civil Code in article 6, IV stated that indigenous people were relatively incapable, which means that to exercise the acts of civil life they would do it with due assistance. The idea of indigenous incapacity was linked to the colonization process: the “degree of civilization” of indigenous peoples. Only in 1988 the Constitution in its article 232 regulated the indigenous peoples’ right to go to court on their own, without the need for representative bodies.
Large companies and ruralists support the “Temporal Landmark” since these lands can be explored, traded, will produce more transgenics and they will continue not to respect the environment, since profit is above human lives.
How did this theory come about?
The Supreme Federal Court ruled in favor of the creation of the “Raposa Serra do Sol indigenous reserve” in Roraima. It was stated that the creation of the reserve was legitimate since indigenous peoples were resident there at the time of Brazilian Constitution in 1988 was created. In 2017, the Federal Attorney General’s Office stated that this understanding should be applied to all indigenous reserves, thus, only indigenous land residents during the 1988 enactment of the Federal Constitution would have rights to them.
How is the situation now?
With no date yet to occur, the Supreme Federal Court must judge extraordinary appeal 1,017,365, referring to a request for repossession filed by the Environment Foundation of the State of Santa Catarina (FARMA) against the National Foundation of the Indian (FUNAI) and indigenous people of the Xokleng people.
The decision refers to the Ibirama-Laklanõ Indigenous Land, an area claimed and already identified as part of its traditional territory. The appeal had the general repercussion recognized by the plenary of the Supreme Court in February 2019. That is, what is judged in this case will apply to all others that involve demarcation of indigenous lands. The climate among indigenous peoples in Brazil is one of apprehension and concern for what is to come.
The term indigenous or indigenous peoples is the term currently used in Brazil. The Statute of the Indian (Law No. 6.001 / 73), in use in Brazil, was created with the purpose (set out in its article 1) of “preserving its culture and integrating them, progressively and harmoniously, with the national communion”. Although in force, this law needs reformulation as it expresses symbolic violence against the indigenous population.In some countries in Latin America, for example, in Bolivia, Venezuela and Argentina, the denominations of “original peoples” or “original nations” are used. In countries like Canada and the United States the term “Aboriginal”, “First Nations” and “Indigenous Peoples” are used (ICT, 2016).
Written by Laisa Massarenti Hosoya and Clara Lorena Páez
BRASIL. Estatuto do Índio. Lei n.6001 de 19 de dez de 1973, 1973. Available in: <http://www.planalto.gov.br/ccivil_03/Leis/L6001.htm>. Accessed on: 03 feb 2019.
BRASIL. Constituição da República Federativa do Brasil de 1988, 1988. Available in: <http://www.planalto.gov.br/ccivil_03/constituicao/constituicaocompilado.htm>. Accessed on: 21 ago. 2019.
BRASIL. Decreto n.5.051 de 19 de abril de 2004. Convenção n. 169 da OIT sobre povos indígenas, 2004. Available in: <http://www.planalto.gov.br/ccivil_03/_ato2004-2006/2004/decreto/d5051.htm>. Accessed on: 28 jan 2019.
CASTRO, E. V. D. Involuntários da pátria, 2016. Available in: <http://www.ihu.unisinos.br/185-noticias/noticias-2016/554056-povos-indigenas-os-involuntarios-da-patria>. Accessed on: 12 may 2019.
CIMI. STF inclui na pauta ação sobre TI Ibirama Laklaño que influencia recurso extraordinário com rercursão às demais terras no país, 2020. Disponivel em: <h https://cimi.org.br/2020/12/stf-inclui-na-pauta-acao-sobre-ti-ibirama-laklano-que-influencia-recurso-extraordinario-com-repercussao-as-demais-terras-indigenas-do-pais/>. Acesso em: 11 março 2020.
IBGE. Os indígenas no censo demográfico. Primeiras considerações com base no requisito cor e raça, 2010. Available in: <https://ww2.ibge.gov.br/indigenas/indigena_censo2010.pdf>. Accessed on: 28 jan 2019.
LITTLE, P. E. Territórios sociais e povos tradicionais no Brasil: por uma antropologia da territorialidade. Anuário antropológico 2002-2003, Brasília, p. 251-290, 2004.
STF. Petição 3.388-4 Roraima, 2005. Available in: <http://portal.stf.jus.br/processos/detalhe.asp?incidente=2288693>. Accessed on: 22 ago 2019.
STF. Ação Cível Originária 2.323 Distrito Federal, 2018. Disponivel em: <http://portal.stf.jus.br/processos/detalhe.asp?incidente=4520772>. Acesso em: 08 may 2019.
 In 1967, a commission was created to investigate SPI irregularities. The document known as the “Figueiredo Report” brought up the cases of corruption, slavery, abuse and mistreatment of the indigenous peoples. In addition, crimes such as “criminal land donation” and “alteration of official documents”.
 The territorial recognition process that involves the Raposa da Serra do Sol Indigenous Land, began in 1917 and was concluded administratively in 2005. Even so, the issue reached the Supreme Federal Court that recognized the indigenous right over the lands.