Brazil’s federal Constitution states that “lands traditionally occupied by indigenous peoples” have to be recognized, demarcated and safeguarded by the government as indigenous territory.
As the Constitution was promulgated on October 5, 1988, the Federal Court judges concluded that this date be the temporal mark for the determination whether land was to be considered “traditionally occupied” or not, in the turbulent case on the contested demarcation of Raposa Serra do Sol, in the Northern state of Roraima.
This led the National Agriculture and Livestock Confederation to propose that this temporal mark be applied to all demarcation cases of indigenous areas. A so-called sumula vinculante, or binding abridgement in legal terms.
This would have created great obstacles in the demarcation process, because many indigenous peoples did not live right on their ancestral lands in 1988. Many of them had been expelled of their territory long before this date, over the course of decades, mostly by force of the expanding agriculture, in violent circumstances, with or without explicit help of the authorities and always against their will.
The Committee on Jurisprudence of the Supreme Court deferred the proposal on March 18. They concluded that the request of the CNA, first of all, did not meet the formal requisites of such a proposal and, secondly, that it is necessary to have various similar decisions in different court cases to justify a binding abridgement.
This is not the case. The Raposa Serra do Sol case was the first ruling that discussed this date as a temporal mark and made clear that even with this mark, there would be many possible exceptions. For example, in cases of forced removal of the indigenous community concerned.
The CIMI (Indigenist Missionary Council), through its Juridical Advisor, together with the indigenous organizations, had elaborated an opinion against the petition of the CNAP.