The Chamber of Deputies approved, on May 30, the Bill 490/07, which deals with the temporal landmark of indigenous land occupation. The proposal will now be sent to the Senate.
The bill limits the possession of indigenous lands to those traditionally occupied by these peoples on October 5, 1988, the date of the promulgation of the Federal Constitution.
The Temporal Landmark Bill is an important step taken by the Congress to address an issue with explosive potential — an issue whose implications go far beyond the demarcation of indigenous reserves. It affects one of the fundamental rights of citizens: the property right.
Understand how this unfolds.
Should Bill 490/07 be approved by the Congress, it will establish in law that the temporal landmark to determine indigenous land possession is their occupation on October 5, 1988.
This is also the current understanding of the Supreme Court. However, the court is reevaluating this issue. In the ongoing trial, two votes have already been cast. Justice Nunes Marques voted for maintaining the temporal landmark, while Justice Edson Fachin voted against it.
There is an aspect of this issue that makes it relevant to all Brazilians: a significant portion of the national territory was once occupied by indigenous peoples. Without a clear temporal landmark, any area of Brazil’s territory could be considered indigenous land if it was occupied by indigenous peoples at any point in the past.
Here comes a detail unknown to most people: although indigenous lands are possessed by indigenous communities, the ownership rights of these areas belong to the Union. Therefore, once an area is declared indigenous land, its ownership is attributed to the Union. This is what the legal system provides: indigenous peoples can have possession of the land, but not ownership rights.
This is not fiction or a conspiracy theory. In fact, the Union has already attempted to seize the property of thousands of Brazilians.
Fabio Prieto, the Secretary of Justice of the State of São Paulo, who is a former federal judge and former president of Brazil’s largest federal court, mentions numerous examples of cases judged by the judiciary.
In these cases, citizens requested the declaration of ownership through adverse possession of their homes, all located in urban areas of São Paulo.
In thousands of these cases, the Union intervened in the proceedings, claiming ownership of the properties based on the argument that these areas were occupied by indigenous peoples in the distant past, around 200 or 300 years ago.
Indeed, the names of many places in Brazil derive from indigenous terms, which indicates the historical occupation of these areas by indigenous peoples. Examples such as Carapicuíba, Ubatuba, Guarujá, in the state of São Paulo, and Ipanema (“stinky lake”), Tijuca (“rotten water”), and Jacarepaguá (“lake full of alligators”), in the city of Rio de Janeiro, reflect the indigenous presence. However, it is important to underline that these occupations occurred in the distant past.
Repeating: the federal government requested ownership of private properties, arguing that the areas were once occupied by indigenous peoples.
Naturally, the Union’s claims were denied. The recurrence of such cases led to the formulation of Supreme Court Precedent 650, which states that “Items I and XI of Article 20 of the Federal Constitution do not apply to lands of extinct indigenous settlements, even if occupied by indigenous peoples in the distant past.”
This is the position that the Union requests the Supreme Court to review.
The court decision on this matter could affect the entire national territory, especially private urban property.
If the temporal landmark is abolished, any private property can be claimed by the Union, using the argument that the area was once indigenous land in the distant past.
Put another way, the federal government will have the power to decree the end of private property whenever it desires.
This is what is at stake in this case.