Brazilian far-right intensifies its actions to exterminate Indians
The battle for and against the time frame is raging in Brazil.
In mid-2023, the Supreme Court of Brazil handed down an extremely important decision through which the time frame thesis was rejected. The Brazilian extreme right defends this legal excrescence because it not only intends to legitimize the ownership of indigenous territories that have already been invaded, but because it would allow ruralists to continue invading indigenous lands under the allegation that they did not have possession of them, before the promulgation of the 1988 constitution.
After the Supreme Court precedent was handed down and published, the Brazilian Congress (totally dominated by ruralists and the extreme right) quickly approved a Law legitimizing the time frame. Lula vetoed this Law, but Congress overturned the veto and the Law was promulgated.
Soon after, right-wing parties filed an action in the Supreme Court demanding the declaration of constitutionality of the Law. An institution created by Indians and left-wing parties filed another action seeking to declare the same Law unconstitutional. These two actions were brought together and will be judged together.
I decided to interfere in both actions as amicus curiae and filed a petition with the following content in the action filed by the extreme right:
“III-Before delving into the merits of this action, the Supreme Court will have to decide a very important preliminary issue: that which refers to the manifest partiality of the rapporteur appointed to act in the case sub judice.
Minister Gilmar Mendes must be declared a suspect in order to participate in the trial of this ADC 87. In addition to being a landowner, for decades he has acted in the Supreme Court as if he were a parliamentarian who favors ruralists, land grabbers, loggers, miners and invaders of indigenous territories. Gilmar Mendes does not have the necessary impartiality to make a decision in any process in which the interests of his protectees clash head-on with the interests of indigenous people.
Upon receiving this action, the rapporteur could have considered himself a suspect in accordance with the procedural legislation in force. As he did not do so, the Supreme Court will have to preliminarily decide whether he can participate in the trial.
IV- It is not possible to submit this action to judgment without considering the historical precedents of the issue.
Over the last 529 years, several treaties signed by Portugal and Portuguese colonists have directly or indirectly interfered in the daily lives of indigenous people and threatened or precariously consolidated the possession of the territories they traditionally exercised in what is now called the Federative Republic of Brazil:
Treaty of Tordesillas (1494): This treaty divided the world between Portugal and Spain, assigning Brazil to Portugal. The treaty was signed by Portugal and Spain, but not by the indigenous people, who were not consulted.
Treaty of São Marcos (1512): This treaty established that the Portuguese could build fortresses and villages in Brazil, but that they must respect the rights of the indigenous people. The treaty was signed by Portugal and the Tupinambás, but was not respected by the Portuguese.
Treaty of Iperoig (1567): This treaty established a truce between the Portuguese and the Tupinambás, who were at war. The treaty was signed by Portugal and the Tupinambás, but was broken by the Portuguese in 1569.
Peace Treaty of São Paulo (1641): This treaty established a permanent peace between the Portuguese and the Tupinambás, who were at war. The treaty was signed by Portugal and the Tupinambás, and was respected until the 18th century.
Other peace agreements were signed between the Portuguese settlers and the indigenous people, but these were the most important. All of them were broken, either by the Portuguese or by the indigenous people. The reasons for breaking these agreements were diverse, including:
The expansion of Portuguese colonization: The Portuguese continued to expand their lands, which led to conflict with the indigenous people.
The enslavement of indigenous people: The Portuguese enslaved many indigenous people, which generated indignation and revolt among them.
Portuguese violence: The Portuguese often used violence to subjugate indigenous people.
The peace agreements between the Portuguese settlers and the indigenous people were important in trying to establish a peaceful coexistence between the two parties. However, these agreements were constantly broken by the colonists or as a result of violence practiced by them, which led to a long period of conflict between the Portuguese and the indigenous people.
After a short period of pacification of the indigenous border under the 1946 constitution, the military dictatorship once again advanced into indigenous territories and practiced unspeakable violence against original peoples.
It is clear that the military dictatorship treated the indigenous issue in an extremely violent and repressive manner. The military government saw indigenous people as an obstacle to the country's economic and social development, and therefore implemented a series of policies aimed at their assimilation and integration into Brazilian society.
These policies included the prohibition of mother tongues, the prohibition of traditional cultural practices, the forced removal of indigenous people from their lands, and the opening of indigenous lands to economic exploitation. The most well-known and grotesque cases of violence against indigenous people during the military dictatorship include:
The Cururupu massacre, in 1976: A group of indigenous people from the Guajajara ethnic group were murdered by farmers in the Maranhão region. Farmers were trying to expel the Guajajara from their land.
The Haximu massacre in 1980: A team of American missionaries was murdered by miners in the Yanomami Indigenous Land. The miners were terrorizing the Yanomami, and the missionary team was trying to protect them.
The Altamira massacre in 1988: A group of indigenous people from the Xikrin ethnic group were murdered by loggers in the Pará region. The loggers were illegally exploiting the forest in the indigenous area.
In addition to these cases, there were many other episodes of violence against indigenous people during the military dictatorship, and it is worth mentioning here those that resulted from the construction of the BR-230 or Transamazônica Highway, not coincidentally called Transamargura (Transbitterness, in in English).
It is estimated that more than 8 thousand indigenous people were killed during this horrific period in Brazilian history. Violence against indigenous people during the military dictatorship was a serious violation of human rights. These crimes have not yet been properly investigated and punished, and indigenous people still suffer from the consequences of this period.
V- The promulgation of the Brazilian Constitution in 1988 put an end to the military dictatorship and pacified relations between Brazil and indigenous people, establishing a series of mandatory and self-applicable principles. The arts. 231 and 232 of the Brazilian Constitution can be and were effectively considered by indigenous peoples to be clauses of the last peace treaty signed by white men.
Under the provisions of art. 102 of the Brazilian Constitution, the Supreme Court is exclusively responsible for preserving this peace treaty, guaranteeing indigenous people the right to peacefully enjoy their lands and, when necessary, reintegrate them into possession of territories that were invaded by ruralists, land grabbers, loggers and miners. without any type of restriction or time frame. In this context, it is clear that this ADC must be dismissed as unfounded.
By establishing a time frame that did not exist in the Constitution, Brazilian parliamentarians linked to rural terrorists broke the peace treaty signed in 1988 and declared war on the Indians. If the Supreme Court does not declare this rule unconstitutional, the increase in violence by ruralists, land grabbers, land invaders, loggers and miners is predictable. Not only will the State be prevented from repressing the violence of neocolonialism, it will also be forced to side with rural terrorists in the event of the predictable reaction of indigenous people.
VI- The unconstitutionality of the time frame has already been the subject of a decision by the Supreme Court during the judgment of Extraordinary Appeal (RE) 1017365. The Brazilian Constitution did not grant the Legislative Power the power to violate, revise or revoke Supreme Court precedents. Therefore, the understanding consolidated in the judgment given in the records of Extraordinary Appeal (RE) 1017365 could not have been modified by Law with an evident violation of the provisions of art. 5th, XXXVI, of the Brazilian Constitution.
It should also be noted that Brazil has assumed international obligations regarding the protection of original peoples. Therefore, if it decides to break the peace concluded with the Indians in 1988, the Supreme Court will provoke a civil war without having the power to do so, unduly interfering in the country's foreign policy. The Supreme Court is the guardian of the Constitution and cannot invade the competence of the Presidency of the Republic.
By legislating in its own cause, breaking peace with the indigenous people at the end of the military dictatorship, emptying the programmatic content of arts. 231 and 232, of the Brazilian Constitution and mutilating the Judgment given in RE 1017365, the ruralist bench in the National Congress did not take the public interest into account. The parties that are now knocking on the door of the Supreme Court to force it to legitimize a declaration of internal war are acting against the spirit of art. 17 of the Brazilian Constitution.”
No one should remain silent in the face of the shameful behavior of the National Congress towards indigenous people. Brazilian deputies and senators do not have the right to trample our Constitution or provoke a genocidal civil war. I am just a citizen and an old lawyer, but I dare to stand up against this injustice.