There is not enough opinion to form a majority against the legal theory, which would mean a victory for the indigenous peoples.
In the hearing this Wednesday, which continues tomorrow, Judge Antonio Días Toffoli rejected the transitional milestone that establishes the date of promulgation of the Federal Constitution (October 5, 1988) as a reference for defining the new occupied territories of these municipalities.
So far, Minister-Rapporteur Edson Fachin voted against the temporary framework, followed by Luís Roberto Barroso, Alexandre de Moraes, Cristiano Zanin and Días Toffoli.
Judges Kassio Nunes Marques and André Mendonça spoke in favor of the controversial initiative.
One of the arguments against the framework is that the Constitution defends indigenous rights as indigenous rights that precede state formation.
According to this thesis, the indigenous people who lived in Brazilian lands long before the arrival of the Portuguese in 1500 are the owners of the territories they occupied.
Remember that ancestral communities have been decimated over the last 500 years, and those who survived have been expelled from many places and enslaved.
For Días Toffoli, the process brings the resolution of disputes, especially a historical one, because if you look at history, it is judged by the invaders.
“We are assessing the pacification of a historical situation here. Judgment of non-specific situations. Here we are assessing the fate of the indigenous people of our country. “That’s what it’s about,” he reiterated.
The initiative to define the provisional framework was approved by the Chamber of Representatives and is currently being pushed forward in the Federal Senate.
The milestone is an interpretation of Article 231 of Magna Carta, which “recognizes indigenous peoples, their social organization, customs, languages, beliefs and traditions.”
Likewise, “the original rights to the countries they traditionally occupy, the Union being responsible for delimiting them, protecting them and ensuring respect for all their assets.”
For indigenous communities, historical ownership of land is not necessarily linked to the fact that a people occupied a particular territory on October 5, 1988.
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