“Friend of the Court” organizations indicate a risk of setbacks in indigenous rights in a conciliation hearing on Law No. 14,701 at the Supreme Court (STF)

After Apib left the conciliation panel, twelve organizations reinforced criticism to the conduct and lack of clarity of the panel as to its object of the discussion

Indígena durante manifestação contra o chamado Marco temporal em frente ao Congresso Nacional em maio de 2023. (Foto de Sergio Lima / AFP)

Twelve organizations and representations that are acting as amici curiae – “friends of the Court” – in the case that discusses the constitutionality of Law No. 14,701/2023 have released a public note in which they criticize the works of the conciliation panel on the issue that is taking place at the Supreme Federal Court (STF), determined by Justice Gilmar Mendes. The organizations also support the Articulation of Indigenous Peoples of Brazil (Apib, acronym in Brazilian Portuguese), which withdrew from the conciliation panel on Wednesday (28) because it believes that “no negotiation on fundamental rights should be admissible”.

The conciliation panel was established under the Constitutionality Declaration Action (ADC, acronym in Brazilian Portuguese) 87 and the Direct Unconstitutionality Actions (ADIs, acronym in Brazilian Portuguese) 7,582, 7,583 and 7,586, as well as the Direct Unconstitutionality Action by Omission (ADO, acronym in Brazilian Portuguese) 86, all under the Rapporteurship of justice Gilmar Mendes.

In the note, the organizations criticize the format and conduct of the conciliation panel, starting with the fact that negotiations began without Apib’s requests even being considered. “In particular,” the note points out, “the need to affirm the unconstitutionality of Law No. 14,701, at least its provisions, which are completely at odds with the Brazilian Supreme Court’s under the Extraordinary Appeal (RE) 1,017,365”.

The case in question, with widespread repercussions, was concluded in September 2023 and established the Supreme Court’s understanding on constitutional indigenous rights. The Supreme Court’s stance was diametrically opposed to several points that were later included by Congress in Law No. 14,701. The rule has been in effect since its promulgation in December 2023.

The organizations point out that the absence of clarity on the object of discussion in the conciliation hearings would lead one to believe that indigenous territory rights, recognized as fundamental rights by the Supreme Court itself in the case with widespread repercussions, could end up being “negotiated and even suffer setbacks”.

The note also comments on a stubborn stance adopted by the hearing coordinator in relation to indigenous representatives and mentions the threats that, without a conciliation, “a Proposal for a Constitutional Amendment (PEC, acronym in Brazilian Portuguese) to establish the time frame of October 5, 1988, would be put to a vote” by Congress.

“The collective sentiment, both for indigenous representatives and entities that have worked on the subject for decades, was of being appalled and humiliated, given the offensive manner with which this constitutional manner was handled”, the document states.

In spite of the criticism regarding the panel, the entities have restated how much they trust the Supreme Court’s ability to “understand the meaning of article 231 of the Federal Constitution”, mentioning the decision of RE 1,017,365 as an example of understanding to be maintained.

Read the note in full:

Note by the amici curiae on the conducting of the conciliation panel that discusses the constitutionality of Law No. 14,701/2023

The entities listed below, all admitted as amici curiae in the record of ADC 87, which gathers ADIs 7,582, 7,583 and 7,586, as well as ADO 86, hereby offer their position regarding the works of assistant judge Diego Viegas Veras under the Special Commission established by Justice Gilmar Mendes with the purpose of seeking a resolution of problems “regarding the subject of rights of the indigenous and non-indigenous population involving art. 231 of the Federal Constitution and Law No. 14,701/2023”.

1. The Special Commission began to operate without harmful issues repeatedly brought up by Apib being replied to, particularly the need to affirm the unconstitutionality of Law No. 14,701, at least its provisions, which are completely at odds with the Brazilian Supreme Court’s under the Extraordinary Appeal (RE) 1,017,365. There are solid grounds in terms of case law that a law that appears in direct opposition to a Supreme Court understanding is born with the iuris tantum assumption of unconstitutionality, with the legislator having the burden of arguing to justify the reason for overturning the decisions of the Court, which has not happened.
2. The initial hearing of the Special Commission, commanded by judge Diego Viegas Veras, began with the threat that, if there weren’t any conciliation, a Constitutional Amendment Proposal (PEC, acronym in Brazilian Portuguese) would be put to a vote to establish the time frame of October 5, 1988. An audio message that included the chairman of the Federal Senate was played at a high volume, so as to avoid questions. This occurred in the second hearing, where the panel leader’s behavior was excessively stubborn in relation to the comments made by indigenous peoples, reducing the constitutional inquiries as “lateral issues”.
3. Then, several topics demonstrated how the instructing judge was absolutely unfamiliar with the general matter under a new conciliation, whether suggesting that the Funai would have any role for indigenous peoples’ representation, whether by stating that the conciliation would’ve had the same path even without the presence of indigenous representation.
4. There was also no clarity on the limits of what could undergo conciliation, which led one to believe that the rights for which the fundamental nature was stated by by the Supreme Court itself in the decision of RE 1,017,365 could be negotiated and undergo setbacks.
5. The collective sentiment, both for indigenous representatives and entities that have worked on the subject for years, was one of being appalled and humiliated, given the offense employed when dealing with a constitutional issue.
6. The decision made today, involving Apib’s departure as a movement of national representation that gathers organization from all Brazilian regions, is validated by the signatory entities for two very basic reasons. The first is that the very idea of conciliation as a way to settle conflicts independently seems to suppose that all parties agreed to this way to solve a dispute. When one of the parties refuses it, the subject necessarily reverts back to the judging entity for a decision. Otherwise, the refusing party will have its access to justice denied. The APIB, and not another indigenous entity, one must note, is one of the plaintiffs in ADI 7,582. And the second reason is the very core position of indigenous peoples in issues that directly concern them, pursuant to the ILO Convention 169. It is unconceivable for their territorial rights to be discussed without indigenous peoples being in attendance.
7. The undersigned entities reaffirm their trust in the Federal Supreme Court, which has properly understood the meaning of article 231 of the Federal Constitution, in the judgment of RE 1,017,365.

 Brasília, August 28, 2024

Associação Juízes para a Democracia – AJD (Association of Judges for Democracy)

Associação Brasileira de Antropologia – ABA (Brazilian Anthropology Association)

Alternativa Terrazul

Comissão Guarani Yvyrupa – CGY (Guarani Yvyrupa Commission)

Centro de Trabalho Indigenista – CTI (Indigenist Work Center)

Conselho Indigenista Missionário – Cimi (Indigenist Missionary Council)

Conectas Direitos Humanos

Comissão Arns 

Instituto Alana

Instituto Socioambiental – ISA

Xokleng People of the Ibirama La-Klãnõ Indigenous Land

WWF-Brazil