Indigenous land rights in Brazil

The Supreme Court of Brazil has postponed its decision regarding the forced eviction of the indigenous Xokleng people from the Ibirama-Laklãnõ Territory for the fifth time within two months. Now, the decision is supposed to be announced on September 1. "The decision will be trend-setting for the future of indigenous land rights," stated Juliana Miyazaki, expert on indigenous peoples at the Society for Threatened Peoples (STP). If the controversial cut-off date regulation "Marco Temporal" becomes a general rule, hundreds of indigenous territories are in danger. Then, these territories will most probably be deforested or cleared by fire, so that the land can be used for monoculture agriculture, for example.

Tomorrow, Wednesday, the decision is once again at the top of the court's agenda. First, there will be 39 statements by various political parties and NGOs, by the agrarian lobby, and other business associations. Then, the eleven chief judges are supposed to announce their decision. However, they could also cancel or postpone the proceedings again at any time. "President Bolsonaro has already stated that he will ignore the decision if he is not happy with the outcome," Miyazaki criticized. "Still, the indigenous communities are confident. They have always emphasized they trust the legal process and the court." Two of the eleven decision makers have already indicated that they will decide against the Marco Temporal and in favor of the interests of the indigenous communities and, thus, in favor environmental issues and climate protection.

The Marco Temporal is a cut-off date regulation according to which indigenous communities can only keep their land rights if they are able to prove that they were in possession of the land before October 5, 1988, when the constitution came into power, or that they were involved in a direct conflict with intruders. This criterion is absurd, as it ignores that indigenous communities suffered from expulsion, forced evictions and violence throughout the past 521 years since the Europeans invaded the country. Until 1988, they were under the tutelage of the state – meaning that they could not go to court and claim their rights. 

The constitution recognizes land rights pertaining to the traditional settlement areas of indigenous communities. The Brazilian state is obliged to demarcate indigenous settlement areas and to ensure that the resources can be used. However, these obligations are disputed ever since Jair Bolsonaro took power. Since then, 250.000 hectares of indigenous land have been transferred to private persons or private companies. At the same time, only 31 percent of the indigenous territories have so far been demarcated. More than 40 percent of the indigenous territories are without protection. Thus, there are more and more attempts of illegal logging, gold mining, or to take possession of the land – often in connection with violence.