"We don't have much time. We believe that the Supreme Court will reaffirm the rights of indigenous peoples and reject the ‘Milestone Thesis’ [or ‘Marco Temporal’ in Portuguese], which, if accepted, would impact several indigenous lands pending demarcation. Defenders of the Milestone Thesis claim that it would bring about legal certainty. But for whom? Certainly not for the indigenous peoples. But absolutely yes for the usual explorers,” said lawyer Luiz Eloy Terena, coordinator of the legal department of the Coalition of Indigenous Peoples of Brazil (APIB), who defended the point of view of indigenous peoples in the ongoing case in Brazil’s Supreme Court (STF).
“What remains to be done in terms of the demarcation of indigenous lands is perfectly feasible. Of the 725 indigenous lands identified by the National Indigenous People Foundation (FUNAI), 487 (67%) have already obtained presidential approval. Only 33% are left, or 238 cases,” said Márcio Santilli, founding partner of Instituto Socioambiental (ISA). “It is in the interest of the entire Brazilian population that this process, established by the 1988 Federal Constitution, be concluded as soon as possible, as there is no space in a democratic Brazil that aims to achieve sustained development for landless indigenous people camped out on the side of the roads.” Santilli was one of the negotiators of the indigenous rights chapter in the Brazilian Constituent Assembly (1987-88).
“According to article 231 of Brazil's Constitution, indigenous peoples have original rights over the lands they traditionally occupy, and it is up to the federal government to demarcate them, and protect and ensure respect for all their assets. They are irrevocable human rights, with no start or end date. Therefore, superior to any property right,” said Federal Prosecutor Deborah Duprat, who was Deputy Attorney General of Brazil from 2009 to 2013 and has a long history of defending human rights.
Terena, Santilli, and Duprat participated in the webinar "The Milestone Thesis and Bill No. 490: two faces of the same anti-indigenous rights strategy," hosted by Fundação FHC on September 15, 2021, when the judgment on the Milestone Thesis in the Supreme Court was suspended after Justice Alexandre de Moraes requested to see the record.
Understand the controversy surrounding the Milestone Thesis
The Milestone Thesis, defended today by groups against the demarcation of indigenous lands, originated from a 2009 Supreme Court decision when Brazil's highest court decided to whom the right to the Raposa Serra do Sol Indigenous Land in the state of Roraima would belong. At the time, the justices argued in favor of the indigenous population, claiming that they were there when the Brazilian Constitution was promulgated on October 5, 1988. If in 2009 the Milestone Thesis was favorable to the original peoples, a precedent was opened for the argument to the contrary; that the indigenous peoples could not claim lands that they were not occupying in 1988 as theirs.
In 2017, the Raposa Serra do Sol case created the opportunity for Brazil's Attorney General Office (AGU) to issue a technical opinion. In the ruling published at the time of the Supreme Court decision, then Justice Carlos Alberto Menezes Direito introduced "institutional safeguards", including the Milestone Thesis. The argument turned to whether those safeguards would have general repercussions or if they would be restricted to that specific case. The AGU wanted to generally validate that, which went beyond its legal scope of work. It created tremendous legal uncertainty. Hence, the Supreme Court was provoked to deliberate on the overall validity or invalidity of the Milestone Thesis. Currently, about 30 demarcation processes are awaiting a definition by the Supreme Court. The Ibirama Laklãnõ Indigenous Land in the state of Santa Catarina is one of those cases. It is now before the Supreme Court.
At the same time, Bill (PL) No. 490/2007, already approved by the Senate's Constitution and Justice Committee (CCJ, in Portuguese), is pending in Brazil's House of Representatives, which aims to change the process of demarcating indigenous lands in the country. The text defines that indigenous lands are those that were occupied by traditional peoples on October 5, 1988. It would be necessary to prove land ownership on the day Brazil's Constitution was promulgated. Under current legislation, there is no need for proof of ownership on a specific date.
Bill 490 also prohibits previously demarcated lands from being expanded, provides for flexible contact with isolated peoples, opens doors for mining and water use in indigenous lands, and transfers the final word on approval or denial of land demarcations to Congress. Even if the Supreme Court overturns the Marco Temporal, Bill 490 can still do damage.
Santilli: 'Congress must consolidate historic debt bailout'
“This bill is a Trojan horse that the ruralist caucus put in Congress, and today it represents the main threat to indigenous rights. Instead of encouraging measures that obstruct and delay the demarcation of lands that are still pending, lawmakers should ensure that the process is completed as soon as possible, thus consolidating the redemption of our historical debt to indigenous peoples,” said Santilli. According to the former president of FUNAI (1995-96), president Jair Bolsonaro breaches Brazil's Constitution by refusing to ratify indigenous lands the body has already identified.
Terena: 'Fight not only with a bow and arrow, but with a pen and laws'
“I am part of a generation of indigenous youth who left the villages and went to universities to study Law, Anthropology and Medicine. That wasn’t for nothing. It was the chiefs who understood the importance of fighting not only with a bow and arrow, but also with a pen and laws. Through our work, we are giving back to our community everything it has always given us. If bill 490 is approved in the House and Senate, we will overturn it in the Federal Supreme Court,” said Eloy Terena, who, in addition to a Law degree, holds a PhD in Social Anthropology from the National Museum (UFRJ) and a Postdoctoral from the École des Hautes Études en Sciences Sociales (EHESS, Paris).
Duprat: ‘Anthropologists have the responsibility to assess the ownership of rights'
“The anthropologists' reports, which serve as the basis for FUNAI’s work on identifying indigenous lands, cannot give the impression that they often have a bias favorable to indigenous people, especially in the case of regions explored for centuries by small and medium-sized farmers. Are there really controversial cases? How does one separate the good from the bad?” Asked political scientist Sergio Fausto, director of Fundação FHC and mediator of the talks.
According to Eloy Terena, anthropology must provide the elements to identify the traditional ownership of a given territory. "The Marco Temporal is racist because it tries to implement a single criterion for determining ownership that does not correspond to indigenous traditions. Some people are collectors, some people hunt, some people farm. Some are nomads; others live permanently in one place. There is land used for productive activities, there is land used to protect the forest and rivers, and for fauna and flora to reproduce, there is land dedicated to religious and funeral practices. Only anthropology can be used to understand these forms of land use according to the uses and customs of the original indigenous populations,” said the lawyer and anthropologist.
“The report has to be done by a specialist in the area. When it comes to public health, the correct thing to do is call a doctor or public health specialist. When it's a legal matter, you need a legal professional. When assessing the right to landhold of territory according to its uses, traditions, and customs, the right thing to do is to call an anthropologist,” stated Deborah Duprat.
“Of course, there are people of good faith who are confronted or even harmed during demarcation processes. In this case, the federal government must seek the fairest possible solution, which may be resettlement elsewhere or payment of compensation. What is not acceptable is depriving the indigenous population of their original rights recognized by the Constitution,” explained Márcio Santilli.
According to the founding partner of ISA, "a third party can manifest itself at any time during the analysis of one of FUNAI's demarcation processes, and in case the body decides in favor, there is a legal deadline of 3 months for contesting it."
“According to Decree 1775, which provides for the administrative procedure of demarcation of indigenous lands, the other involved or interested parties participate from the beginning and can even present their own report. In the end, the president of FUNAI will analyze all the information that is part of the case, and then the Minister of Justice will do the same. If both decide in favor of the demarcation, it is up to the President to ratify the decision,” explained Duprat.
“The starting point, in cases identified for demarcation, is that that particular territory is indigenous. The federal government can define some type of compensation for those who eventually have to leave the land when it deems it fair. But that is a different process, which in no way inhibits the territorial rights of indigenous peoples,” added the former Deputy Attorney General from 2009 to 2013, having held the position of Attorney General on an interim basis.
Otávio Dias is a journalist specializing in politics and international affairs. A former correspondent for Folha in London and editor of the estadao.com.br website, he is currently the content editor at Fundação FHC.
Portuguese to English translation by Melissa Harkin & Todd Harkin (Harkin Translations)