In Brazil, indigenous people win a crucial trial to save their land

The “trial of the century” which has kept Brazil’s indigenous peoples in suspense for months reached a turning point on Thursday, with a majority of Supreme Court judges confirming their right to land. The issue is all the more crucial as the reserves allocated to indigenous people are considered by scientists as important defenses against deforestation and therefore play a key role in the fight against global warming.

” Victory ! The trial continues and we are following it carefully, so that no rights are sold off,” celebrated the Association of Indigenous Peoples of Brazil (APIB) on X (formerly Twitter). The majority was reached on Thursday when a sixth magistrate, out of the eleven who sit on the highest court in the country, voted against the thesis of the “temporal framework”, during this long-term trial which began in August 2021 and suspended for several times.

The thesis of the “temporal framework”, defended by the powerful agro-business lobby in the name of “legal security”, only recognizes as lands rightfully belonging to the indigenous people those which they occupied or officially claimed at the time of the promulgation of the Constitution in 1988.

But the natives explain that certain territories were no longer occupied by them at that time because they had been expelled, notably under the last military dictatorship (1964-1985). The final judgment will only be pronounced following the vote of the last three judges. But the majority vote in favor of the natives already prevents a contrary judgment from being rendered.

“Debt impossible to pay”
“Even if they have not yet been approved (as reserves), these occupied lands must be under the protection of the State, because this is what the Constitution provides,” said Judge Luiz Fux, author of the sixth decisive vote. Judge Carmen Lucia subsequently highlighted the “impossible to pay debt of Brazilian society towards indigenous peoples”.

Joenia Wapichana, president of Funai, a public organization for the protection of indigenous people, welcomed the fact that “justice is on the side of indigenous peoples. “Now that the time frame is definitively buried, we will be able to move forward in the protection of our lands and our rights.”

The only two magistrates favorable to the thesis defended by agro-business were appointed by the former far-right president Jair Bolsonaro (2019-2022). The latter had promised after his election not to “give one more centimeter” to indigenous peoples. Approvals of new reserves remained at a standstill for more than five years, until the return to power of left-wing President Luiz Inacio Lula da Silva, who legalized six new ones in April, then two others at the beginning of September.

Brazil has more than 700 reserves already demarcated, but almost a third of them have not yet been officially approved.

The trial at the Supreme Court, which must set a precedent, relates more specifically to the case of the Ibirama-Laklano territory, in the state of Santa Catarina (south), which lost its status as an indigenous reserve of the Xokleng people in 2009, following a judgment of a lower court. The judges then justified their decision by explaining that these lands were not occupied by indigenous people in 1988.


The magistrates of the Supreme Court will also have to find a consensus on pending questions, in particular that of possible compensation by the State of owners of land which would be transformed into reserves in the future.

This alternative solution to the “temporal framework” is proposed by the powerful judge Alexandre de Moraes, but it is rejected by the natives. “We are not against compensation for small agricultural producers, but this must be decided outside of this trial, […] otherwise many conflicts risk breaking out,” said Kreta Kaingang, representative of the Association of Indigenous Peoples. of Brazil (APIB).

This organization fears in particular that case law at the Supreme Court on the subject of compensation will slow down the approval of new reservations, because they would represent a high cost for the State, which is already faced with significant budgetary restrictions.

Brazil has nearly 1.7 million indigenous people, living on or off reserves, or 0.83% of the population, according to figures from the latest census.

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