Lula’s court pick Zanin makes it 3-2 in indigenous land rights case

Supreme Court Justice Cristiano Zanin voted against a legal argument that would severely restrict indigenous land rights in Brazil, the so-called “cut-off point” argument, tying the trial at 3 to 2. Six justices are left to vote.

President Lula’s allies were anxiously waiting to see how Justice Zanin would vote in the case, as his recent rulings have been somewhat reactionary, and contrary to what the government expected of him. Mr. Zanin was appointed by Lula in June.

Under pressure, Mr. Zanin began reading his vote stuttering and with a broken voice. The only two votes in favor of the argument had come from Justices André Mendonça and Nunes Marques — both appointed by former President Jair Bolsonaro, Lula’s greatest nemesis.

“It is impossible to impose any kind of cut-off point to the detriment of indigenous peoples, who have had the protection of exclusive possession [of land] since the Brazilian Empire and, constitutionally, since 1934,” he said.

The vote was celebrated by indigenous leaders who watched the session from inside the chamber and in front of the Supreme Court. 

The “cut-off point” argument states that indigenous peoples can only claim land that they occupied on October 5, 1988 — the day Brazil’s current constitution was enacted. Indigenous rights advocates argue that this ignores the situation of indigenous peoples who were displaced from their lands before and after that specific date.

The Supreme Court is rushing to finalize the case — which has been dragging on in the court since 2021 — before Congress can pass a bill approving it.

Justice Edson Fachin was the first to vote in the case, back in 2021, and he rejected the argument and declared that indigenous rights cannot be changed through constitutional amendments.

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