Mendonça ties up landmark indigenous trial

Supreme Court Justice André Mendonça voted in favor of a legal argument that would severely restrict indigenous land rights in Brazil. With his decision, the landmark trial is currently tied at 2-2. There are seven justices left to vote. 

The court is ruling on the merits of the so-called “cut-off point” argument that posits that indigenous peoples can only lay claim to lands that they occupied as of October 5, 1988 — the day Brazil’s Constitution was enacted. 

Indigenous rights defenders reject this interpretation as unconstitutional, arguing that it disregards the situation of native peoples who were displaced from their ancestral lands before and after that specific date.

Justice Mendonça and his colleague Nunes Marques voted in a similar fashion. Both justices were appointed to the Supreme Court by former President Jair Bolsonaro, who refused to demarcate any indigenous lands during his time in office. Justices Edson Fachin and Alexandre de Moraes, meanwhile, voted against the argument.

During Justice Mendonça’s spell as Solicitor General, he had already defended the cut-off point argument, meaning his vote today was not a surprise. However, he spent over three hours during today’s session pontificating on the indigenous situation in Brazil. He was technically unable to conclude his vote before the session was interrupted on Wednesday evening. The trial resumes tomorrow.

In parallel with the Supreme Court vote, Congress has been legislating on the issue. The lower house approved a bill establishing the cut-off point argument in May amid fierce criticism from indigenous populations and activists. The bill is now in the Senate, having been approved by the Agriculture Committee.

Indigenous groups went to Brasilia this Wednesday to protest against the cut-off point argument for land rights. Head of Brazil’s Indigenous Peoples Foundation, Joenia Wapichana, and internationally recognized leaders such as Raoni Metuktire attended the session inside the court. 

Indigenous lands are the best are preserving native vegetation. The Amazon Environmental Research Institute (IPAM) calculates that, if the cut-off point argument is approved, it would lead to widespread deforestation and the emission of 7.6 to 18.7 billion tons of carbon dioxide. 

Next to vote on the issue is Justice Cristiano Zanin, who was recently appointed by President Luiz Inácio Lula da Silva. The government awaits his vote with apprehension, as his last stances have been considered far more reactionary than many on the left would have expected.

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