O Marchtemporal is a legal thesis that defends the idea that Indian people only have the right to claim a certain land if they were already on it when the federal Constitution was enacted on October 5, 1988. This thesis is being debated in a judgment conducted by the Federal Supreme Court, the STF.
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Summary about time frame
- The temporal framework is a legal thesis that defends that the Indians only have the right to a land if they were already occupying it at the time of the promulgation of the Constitution.
- This thesis reinforced the rivalry between ruralists and indigenous peoples.
- If the time frame is approved, experts fear that indigenous peoples will be expelled from their lands.
- This debate gained strength due to a dispute involving the government of Santa Catarina and the Xokleng people.
Understanding the timeframe
The timeframe is a thesislegal which has been under debate for over 10 years and which argues that indigenous peoples only have the right to claim given land if they were occupying it at the time the Federal Constitution was enacted, on 5 October 1988. This thesis is part of a
strategy of groups of ruralists and farmers to stop the demarcation of indigenous lands in Brazil.If a certain indigenous people were not occupying, in October 1988, the land they claim, it must be proven that there was already a legal dispute over the territory in question. If there is no proof, indigenous peoples may lose their right to these lands and be expelled from them.
The case involving the time frame thesis is on trial at the Federal Supreme Court (STF), but was postponed in the session on September 15, 2021, with no date for return. So far, the vote is tied at 1x1, with 1 vote against the thesis and 1 vote in favor.
Although not official, the thesis has been applied in Brazil since the government of Michel Temer, which he took over in 2016. This is because, since then, the Brazilian government has not carried out the demarcation of new indigenous lands, despite this being a right guaranteed by the 1988 Constitution.
When did this dispute start?
The dispute around the timeframe gained strength in 2017, with a opinion issued by the Attorney General's Office (AGU). This opinion established a series of restrictions for the demarcation of indigenous lands, and one of them was the imposition of the time frame. Since then, the timeframe thesis has been used to prevent new demarcations of indigenous lands.
That thesis was used for the first time in 2009, when the STF itself used it in a judgment that determined the demarcation of the indigenous land Raposa Serra do Sol, in roraima. However, the STF itself recognized that the thesis applied in the judgment of this indigenous land was only valid for that specific case.
Despite this, the thesis ended up being exploited by farmers and ruralists to prevent the demarcation of new indigenous lands. Also in 2009, another dispute over land between farmers and indigenous people began and had a direct influence on the current judgment under way at the STF. This dispute took place between the xoklengs, traditional indigenous people of Santa Catarina, and the Foundation for the Environment of the State of Santa Catarina (Fatma).
In the fight, Fatma demanded the repossession of a land of about 80 thousand square meters which had been occupied by the Xokleng, Kaingang and Guarani. This land in question is part of the indigenous land Ibirama Laklãnõ, officially created in 2003, but which currently has tobacco plantations established by farmers.
The dispute arises because the government of Santa Catarina claims that the land was not occupied by the Xokleng when the 1988 Constitution was enacted, but the Xokleng claim that the territory was historically occupied by them and which had been abandoned due to the persecution that this indigenous people suffered, in the first half of the 20th century, from the European settlers who settled there. established.
This is because, in the 1930s, it was common for armed militias to act in Santa Catarina to expel indigenous people from lands that were sold to Europeans. In this process of expulsion, many xokleng were murdered by these militias, which became known as buggers.
The case of the Xokleng has become symbolic for the debate on the timeframe because, in 2019, the STF minister Alexandre de Moraes determined that the decision involving this case would serve as the basis for all the actions of the type. Thus, if the timeframe is approved for the xokleng, it may be used in the judgment of other lawsuits that arise.
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Consequences of the time frame
The temporal framework thesis placed indigenous peoples on one side and ruralists and farmers on the other. One of the consequences that have been debated, if the time frame is approved, is the fact that new land demarcations in Brazil will be very difficult. In addition, many of the indigenous peoples who had demarcated lands could lose them if lawsuits are filed in court and they fail to prove that they occupied their territory in 1988.
Furthermore, the time frame thesis is criticized for not taking into account the entire history of violence that indigenous peoples have suffered in Brazil. The persecution carried out by the State and by ruralists caused several indigenous peoples to abandon their original lands, fearing for their lives.
Experts on the subject believe that the time frame can start conflicts on lands that have already been pacified by demarcation. Another argument used against the framework is the one that states that the indiscriminate advance of farmers and ruralists across the country directly contributes to the loggingand consequently for the environmental imbalance.
Finally, some argue that the timeframe thesis goes against the Federal Constitution itself, and is therefore a measureunconstitutional. The ruralists, in turn, claim that the timeframe needs to be approved to ensure legal certainty in the matter and to prevent farmers from being expropriated from their lands.
What are indigenous lands?
According to the Federal Constitution, indigenous lands are traditionally occupied by the Indians so that they can develop their activities productive. In them, the Indians have the right to exploit nature's resources for their survival and to preserve their culture. The demarcation of new lands for these peoples is a role of the Union and involves the participation of institutions, such as the National Indian Foundation (Funai).
image credits
[1] Joa Souza It is Shutterstock
[2] Camila_Almeida It is Shutterstock
By Daniel Neves
History teacher
Source: Brazil School - https://brasilescola.uol.com.br/o-que-e/historia/o-que-e-marco-temporal.htm