Brazil’s Congress racing Supreme Court on indigenous issue

Rural lobbies and indigenous organizations disagree on most issues. The widest gulf between the two sides, however, is arguably over what should be considered protected indigenous land. 

Indigenous groups claim their land rights must be granted based on their ancestral connection to a given territory. Big Agro, on the other hand, seeks to define October 5, 1988 — the date on which the Brazilian Constitution was enacted — as the cut-off point for land rights. If an indigenous group could not prove that it occupied or disputed said land on that date, it would have no territorial claim.

Indigenous groups oppose the so-called “time frame argument” because it excludes groups that were displaced from their land at the time of the constitutional convention. Also, providing concrete evidence of the occupation of a piece of land 35 years or more ago is not a straightforward process, particularly for poor and sometimes uncontacted peoples.

The time frame argument was first introduced to the Supreme Court in 2008 by former Chief Justice Carlos Ayres Britto, during a trial over the Raposa Serra do Sol reservation in Roraima, Brazil’s northernmost state, an area marked by conflict between indigenous communities and rice farmers.

The court was ruling on whether to demarcate the entire 1.7 million-hectare Raposa Serra do Sol territory as a protected indigenous reservation (and remove the rice farmers) or whether to grant non-contiguous demarcation, allowing the farmers to stay put. In 2009, the court sided with indigenous groups, expelling the ricegrowers from the area.

Justice Britto, the case’s...