Milestone Thesis: Congress, top court split on indigenous land rights
In a year beset by drought in the Amazon, extreme temperatures, hunger, and malnutrition among indigenous communities, Brazil is debating the reduction of indigenous land demarcation. The Milestone Thesis was declared unconstitutional by the Brazilian Supreme Court. Nevertheless, representatives and senators have approved it in Congress.
“Every day is a day of struggle. Every day. There’s not a single day of rest for us. There’s no peace. We come across a violation of rights on a daily basis. Yes, it’s hard work. Yes, it’s exhausting. But we keep resisting. We’ve been resisting for over 500 years, so we’re going to keep on resisting,” said Cristiane Baré, indigenous lawyer and legal adviser to the Coordination of Indigenous Organizations of the Brazilian Amazon (Coiab). She was one of the lawyers to make the oral argument against the Milestone Thesis at the Supreme Court in 2021.
Under the Milestone Thesis, indigenous people are only entitled to territories they occupied when the current Brazilian Constitution was promulgated, in October 1988. “It doesn’t make sense. We are the original inhabitants of this land. We were here when Brazil was invaded. To set this milestone as a limit date is to undo everything that has happened, perpetrating right violations that have occurred since the invasion, the forced removal of indigenous peoples, the violence that we suffered,” she declared.
On September 21 this year, the Supreme Court invalidated the thesis, which it considered to go against the Constitution. But the lower house and the Senate approved a bill eight days later which incorporates the Milestone Thesis as federal law. In October, President Luiz Inácio Lula da Silva partially vetoed the bill, arguing that the thesis had already been deemed unconstitutional. Congress, however, overturned the president’s vetoes.
After the vetoes were overturned, both indigenous organizations—like the Articulation of Indigenous Peoples of Brazil (Apib)—and the government itself began preparing appeals to be considered by the Supreme Court.
In the view of groups in favor of the thesis, like the Confederation of Agriculture and Livestock of Brazil (CNA), not having it brings about legal uncertainty along with the possibility of “expropriating thousands of families in the countryside, who have occupied their land for generations down the centuries, who are part of the daily routine of ensuring food on the tables of the Brazilians and of the world,” the confederation argues in a statement following the Supreme Court decision.
Next steps
According to Wallace Corbo, assistant professor of Constitutional Law at the State University of Rio de Janeiro (UERJ), Brazil now has a law that goes against what the Constitution says, which tries to target decisions that predate the law.
“We have a law that says the opposite of what the Constitution says concerning indigenous lands. And at the same time we have a law that attempts to reverse that and affect legal acts that are already perfect. What are these? The acquired right of indigenous peoples to their lands,” he argued.
Given this state of affairs, Professor Corbo said, this law will once again have to be declared unconstitutional, in a move that could come from the Supreme Court or from any judge examining a case of land demarcation.
“In demarcation proceedings ongoing in court, any judge or court can declare that this law is unconstitutional in order to defend the rights of indigenous people,” he pointed out.
It is an unconstitutional law, he went on to say, but legally the Supreme Court can come to a different position. “There can always be political, economic, and social agents seeking to press the court for a contrary conclusion. Now, the Supreme Court is not expected to reach a position different from the one it reached a few months ago.”
Compensation
The Supreme Court also established the conditions for compensating landowners who received from federal and state governments titles for land that should have been considered indigenous. However, the case will have to take place separately, and should not make the removal of squatters from indigenous land conditional on the payment of compensation.
Compensation is also a concern for indigenous organizations, said lawyer Baré: “Who invades indigenous territory in good faith? How far does this good faith go? How can this good faith be proven? This issue brings land demarcation to a standstill. But so far, these are supposed to come in two separate cases. That’s still worrying, though, because indigenous rights are priceless. They cannot be put up for sale. This is a major concern for the movement. And we know full well how this is going to happen in practice,” she stated.
Professor Wallace Corbo, in turn, pointed out that the Constitution says there is no room for compensation, but the Supreme Court decided there is, and the decision must be observed. “Assuming there are good-faith occupants, what the Supreme Court said is that this compensation is no condition for the demarcation. In other words, good-faith occupants will have to seek recognition of their good-faith occupation and payment of their compensation in an administrative or judicial case,” he remarked.
“It’s a form of compensation that won’t freeze demarcation. Each of these people claiming to be in good faith will have to pursue their own cases,” he added.
According to the professor, the Executive branch can issue an ordinance or decree setting the parameters on the concept of good faith, but it should presume that a person cannot be aware that they are occupying land belonging to third parties.
According to Brazil’s national indigenous agency, Funai, the 736 registered indigenous territories add up to 13 percent of the Brazilian territory—a total of some 117 million hectares. In the latest census, Brazil is reported to be home to nearly 900 thousand indigenous people of 305 ethnic groups.
