Indigenous representatives like Raoni Metuktire, an internationally recognized Kaiapó leader, followed the Supreme Court trial on the temporary framework, inside and outside of the courtroom in Brasilia, in a case that will determine whether the land rights of the indigenous peoples of Brazil have extreme limits established by the constitution. CREDIT: Nelson Jr./SCO-STF-FotosPúblicas

By Mario Osava
RIO DE JANEIRO, Jun 9 2023 (IPS)

Children were thrown into the air and stabbed and cut with knives and machetes. The attackers first opened fire on the victims of the massacre before finishing them off with knives so that none of the 244 indigenous people of the village would survive. The 1904 massacre permanently marked the Xokleng people and may play a decisive role in the future of the native peoples of Brazil.

The tragedy is emblematic of the genocide suffered by indigenous people in Brazilian history. There were more numerous and recent killings, especially during the 1964-1985 military dictatorship. But the 1904 massacre is at the center of a trial in the Supreme Court that will determine the progress of the demarcation of indigenous territories in this South American country.

The trial was triggered by a move by the government of the southern state of Santa Catarina. In 2016 the state’s Institute of the Environment (IMA) lay claim to part of the demarcated land of the Xokleng people for a biological reserve.

But in 2019 the Supreme Court recognized that the case had national repercussions, setting a precedent for all demarcations of indigenous lands, because the IMA’s claim cites something that is called the “temporary framework”.

This framework states that native peoples only have the right to the lands that they physically occupied when the current constitution was promulgated on Oct. 5, 1988, creating the present system of demarcation of indigenous reserves.

The trial began in 2021, with the votes of two of the 11 Supreme Court justices, one against and the other in favor of the temporary framework. It was then suspended due to Judge Alexandre de Moraes’ request for more time to analyze the issue. It was not resumed until last month, on May 7, when Moraes issued his vote and argument, before it was suspended again on Jun. 7.

The 1904 massacre was part of his argument against the framework, as an example of the violence used to dispossess indigenous peoples of their land, which showed that it would be “unjust” to demand their physical presence on their traditional lands on any precise date. The Xokleng were “forced to leave their land in order to survive,” the judge argued.

Judge Alexandre de Moraes (C), of Brazil’s Supreme Court, is the shining star of the country’s judiciary. He issued a vote that could be decisive for the future of indigenous peoples’ lands. He also presides over the Electoral Court and is conducting investigations that could sentence former President Jair Bolsonaro to ineligibility for political office or to jail for spreading disinformation and acting against democracy. CREDIT: Alejandro Zambrana/Secom-TSE-FotosPúblicas

Violence

The Ibirama-Laklãnõ Indigenous Land, where 2,300 people live today, almost all of them from the Xokleng community along with a few Guarani and Kaingang families, was demarcated in 2003: 37,000 hectares recognized as their territory by the government of Santa Catarina in 1926, according to official documents in possession of the native residents of that land.

But in 1965 the military dictatorship limited their territory to just 14,000 hectares. In addition, 10 years later, it ordered the construction of dams in the Itajaí river basin, which crosses the region, to curb flooding in cities and landed estates downstream.

Consequently, it flooded the Xokleng lands and further reduced the area where the indigenous people live and farm, as well as cutting off their roads, aggravating their isolation. An anthropological study conducted in the 1990s recommended that the territory should be expanded to the previous 37,000 hectares, but this was called into question by the local government and by landowners who had invaded part of the land.

Public attention was drawn to the near extermination of the Xokleng people by a book by anthropologist Silvio Coelho dos Santos, “Indigenous people and whites in southern Brazil: the dramatic experience of the Xokleng” ((Indios e brancos no Sul do Brasil: a dramática experiencia dos xokleng, in Portuguese), which includes a report of the 1904 massacre in the newspaper “Novidades”.

Many similar atrocities have been committed in Brazil. But the fact that this massacre in particular was well-documented and proven undermines the temporary framework, defended by many politicians and landowners and used in their legal arguments and in their attempts to reduce conflicts over land.

But it clearly runs counter to the constitution, according to Marcio Santilli, former chair of the governmental National Foundation for Indigenous Peoples (Funai) and founder of the non-governmental Socio-Environmental Institute.

“The basic unconstitutionality is that the articles (on indigenous people) do not address the temporary framework and recognize indigenous territorial rights as ‘original’. According to the constitution, there is no indigenous person without land,” he told IPS.

Thanks to the constitution’s mandate, 496 indigenous reserves, covering 13 percent of the national territory, have been demarcated so far, without taking into account the temporary framework that is now being cited.

And another 238 reserves are in different phases of the demarcation process. Some have already been identified as indigenous lands, while others are still under study, according to the Socio-Environmental Institute, which has a large database on the subject.

In Brazil, according to the 2022 census, there are 1.65 million indigenous people, an increase of 84 percent compared to the 2010 census, although they represent only 0.8 percent of the national population. In this country there are 305 distinct indigenous peoples who speak 174 languages, according to Funai.

Moraes condemned the temporary framework, but his vote worried indigenous leaders because he proposed “full compensation” to “good faith” landowners currently occupying demarcated areas. Until now, only improvements made on property have been compensated and not the land itself, which is considered to have been usurped.

Indigenous people from the metropolitan region of São Paulo block a highway with bonfires, in protest against the temporary framework, which drastically limits the demarcation of territories of native communities. Legislators are trying to give the measure legal status, while the Supreme Court postponed a ruling on the issue for the second time, on Jun. 7. CREDIT: Rovena Rosa/Agência Brasil

Reconciliation rejected

“Moraes wants prior compensation, to pay the landowners first and then demarcate the indigenous land, which can take 10 years. They are looking for a broad compromise to satisfy those who have illegally taken over land,” protested Mauricio Terena, legal coordinator of the Articulation of Indigenous Peoples of Brazil (Apib).

“Why is it always our rights that have to be chipped away at? Our rights are always compromised, we’re always the ones who lose out,” he said while speaking to the indigenous people present in Brasilia to follow the Supreme Court trial.

Nearly 1,500 indigenous people from all over the country camped out in the capital and there were demonstrations against the temporary framework in dozens of cities and towns and along highways in the country, reported Dinamam Tuxá, executive coordinator of Apib.

Moraes also proposed that, in the event of practically insurmountable difficulties, such as the existence of towns in areas recognized as indigenous land, compensation should be offered – in other words, they should be given land in other areas, if accepted by the indigenous community.

“Our territories are non-negotiable,” Terena said. “Our relationship with them runs deep, it is where our ancestors fell.”

His complaint was also due to the new interruption of the trial. Another judge, André Mendonça, a former justice minister in the far-right government of Jair Bolsonaro (2019-2022), asked for more time to study the case. He has up to 90 days to issue his vote, which would reactivate the trial, but he promised to do it sooner.

“They need time. We left here without an answer,” Terena complained. The process has been dragging on for more than seven years and the temporary framework serves as a justification for invasions of land and violence against indigenous people.

In any case, “Moraes’s vote was positive” because it recognized the unconstitutionality of the temporary framework, said Megaron Txucarramãe, chief of the Kaiapó people, who live in the Eastern Amazon region.

“We will return to Brasilia when the trial resumes, we will continue the fight to secure our constitutional rights and the land for our grandchildren,” he told IPS by phone from the indigenous camp in Brasilia.

“We will return to Brasilia to hold demonstrations whenever necessary to defend our lands, the constitution and the rights of our grandchildren,” Chief Megaron Txucarramãe, a well-known leader of the Kayapó indigenous people from the Eastern Amazon region, told IPS from the indigenous camp set up near the Supreme Court. CREDIT: Courtesy of Megaron Txucarramãe

Lawmakers against indigenous people

But their battle is not limited to the judicial front. On May 30 the Chamber of Deputies urgently passed a bill that would make the temporary framework law, by a majority of 283 votes against 155. Its final approval now depends on the Senate.

“The processes are moving ahead simultaneously and influence each other,” Oscar Vilhena, director of the Law School at the private Getulio Vargas Foundation, told IPS from São Paulo. “If the Supreme Court declares the temporary framework unconstitutional, the bill loses its purpose, but that would increase the costs for the Supreme Court.”

By costs he was referring to increased political pressure from right-wing and landowner-linked legislators, known as the ruralists, who have long attacked the Supreme Court for allegedly meddling in legislative affairs.

In addition, if the proposed rule is declared unconstitutional, “the Chamber of Deputies could resume deliberations on a constitutional amendment already approved in the Senate,” Santilli warned by telephone from Brasilia.

This bill, which has languished in the lower house since 2015, when it was received from the Senate, would precisely establish the payment of compensation for land ownership, not only for improvements to property, to landowners affected by indigenous territories demarcated since the current constitution went into effect in October 1988.