Analysis. Bolsonarists passed a bill to codify ‘marco temporal,’ which makes it easier to strip indigenous peoples of their lands, just days after the Supreme Federal Court ruled the concept illegal.

Ruralist Brazilian interests tighten their grip on indigenous lands

The relief of the indigenous peoples of Brazil after the Supreme Federal Court’s rejection, by 9 votes to 2, of the legal notion of “marco temporal” (which would only recognize their right to lands they already occupied before the Constitution went into effect on October 5, 1988) lasted only a week.

Wednesday delivered a rude wake-up call when the Senate effectively declared war on the Supreme Court, passing a bill codifying the exact same legal notion that the latter had rejected; at the same time, the Supreme Federal Court was passing its own decision to give a consolation prize to the invaders of indigenous lands.

At the conclusion of the so-called “trial of the century,” the judges set new criteria for the land demarcation process, accepting Alexandre de Moraes’ proposal and recognizing the right of “owners in good faith” to compensation in the amount of the full value of the property – and not just the improvements they made to it, as the Constitution provides – unless the indigenous area has already been officially demarcated.

This was exactly what the original peoples feared, knowing that the significant increase in the value of compensation could effectively paralyze the already very long demarcation processes, which can take as much as 25-30 years nowadays.

On the other hand, Judge Dias Toffoli’s proposal to soften the right of exclusive use of the land, guaranteed to the indigenous peoples by the Constitution, in order to allow mining activities and the construction of hydroelectric power plants – which would have had truly deadly effects for indigenous communities – has fortunately been rejected.

However, after the Supreme Court gave an inch to the latifundistas on the issue of compensation, the powerful ruralist caucus responded by taking the whole proverbial mile: they pushed Bill 2903 through in a matter of hours – first in the Senate Constitution and Justice Committee and then in a floor vote in the upper chamber – a bill that the indigenous people call the “genocide bill,” and which had already received the green light from the House of Representatives and the Senate Agriculture and Agrarian Reform Committee.

As if the Supreme Court judges hadn’t just ruled, by an overwhelming majority, against the application of a time limit to the demarcation of indigenous areas, the Senate, by 43 votes to 21, enshrined the same infamous ruralist notion into law, and added other measures, just as destructive: a ban on the expansion of already demarcated indigenous lands, the weakening of the right to their exclusive use by communities, a green light to the cooperation between indigenous and non-indigenous people for economic activities, and the authorization to contact isolated peoples for actions that would bring public benefit.

It is unlikely that this bill – an explicit act of war against the Supreme Court, accused by the senators of violating congressional prerogatives – will have much of a future: even in the unthinkable eventuality that Lula doesn’t exercise his veto, or in the far more likely scenario that parliamentarians vote to overrule him, the law would still be declared unconstitutional by the Supreme Court.

However, the ruralist caucus already has a countermove ready to go in this clash between powers that looms ever more ominous. Less than 24 hours since the historic Supreme Court verdict, Senator Hiran Gonçalves had already put together a Proposed Constitutional Amendment (048/2023) to write the “marco temporal” thesis into the 1988 Constitution, which received the signatures of all the worst characters with ties to Bolsonarism: from Hamilton Mourão to Sergio Moro, Tereza Cristina, Damares Alves and Flávio Bolsonaro.

Such a rapacious offensive by the ruralist caucus was, after all, predictable: according to the Os invasores (“The Invaders”) report by the “De olho nos ruralistas” Observatory on Agribusiness in Brazil, not only are the latifundistas in Congress abusively occupying some 96,000 hectares of land belonging to indigenous areas, but several of them also received substantial campaign funding from invading ranchers (fazendeiros).

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