Brazil’s top court rules in favour of Indigenous rights in land claim case

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Brazil’s Supreme Court has ruled in favour of Indigenous rights in a landmark case that weighed the constitutionality of establishing a time limit for making claims to ancestral territory. The court’s decision will weigh heavily as Brazil’s Senate considers legislation to limit new Indigenous reservations.

The court voted 9-2 against what is called the “marco temporal” or “time frame” argument, a legal policy supported by businesses and farmers seeking to use Indigenous land. The “marco temporal” would have forced Indigenous groups to prove they were on the land in question in 1988, when Brazil’s current constitution was ratified, in order to assert a right to the territory.

But that argument faced widespread criticism from Indigenous peoples, human rights organisations and even experts at the United Nations, who argued it could “legalise theft of Indigenous lands”. Many Indigenous groups were driven from their ancestral lands during Brazil’s 21-year military dictatorship which ended in 1985.

There were emotional scenes outside the Supreme Court’s headquarters in Brasília on Thursday, after a majority was formed to support a ruling in favour of Indigenous rights. Some activists wept with joy; others danced. “Long live Indigenous resistance,” tweeted Eloy Terena, an Indigenous lawyer who is a senior official at Brazil’s recently created minister for Indigenous peoples.

Similar scenes played out across the Amazon region, which is home to about half of Brazil’s 1.7 million Indigenous citizens. “[This is a] victory for struggle, a victory for rights, a victory for our history,” the Indigenous congresswoman Célia Xakriabá tweeted. “[All of] Brazil is Indigenous territory and the future is ancestral.”

Brazil’s minister for Indigenous peoples, Sônia Guajajara, celebrated what she called “a great achievement” that was the fruit of years of struggle and protest. Only two Supreme Court justices voted in favour of the “marco temporal” thesis restricting Indigenous land claims: Kassio Nunes Marques and André Mendonça. Both men were appointed to the Supreme Court by the former far-right president Jair Bolsonaro, who activists accused of unleashing a historic assault on Indigenous territories by dismantling protection agencies and with his anti-Indigenous and anti-environmental rhetoric.

Ahead of Thursday’s decisive hearing, activists had warned the “time limit trick” could scupper scores of legitimate claims for the delimitation of Indigenous lands, from groups who had already been evicted from their ancestral lands or whose presence had yet to be recognized at the cut-off date.

Casting her vote against a thesis a majority of justices decided was unconstitutional, judge Cármen Lúcia Antunes Rocha said: “We are caring for the ethnic dignity of a people who have been decimated and oppressed during five centuries of history.”

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