Interview: the impacts of the Supreme Court ruling on the protection of indigenous lands

Luiz Eloy Terena, legal advisor to APIB, explains the importance of the first lawsuit filed by an indigenous organization being accepted by the highest court in the country

Early August was marked by a historic victory by indigenous peoples in the Brazilian Judiciary. A full session of the Supreme Court upheld an injunction granted by Justice Luis Roberto Barroso that requires the federal government to adopt urgent measures to contain the spread of the pandemic in indigenous territories.

Drafted by APIB (Association of Indigenous Peoples of Brazil) in conjunction with the political parties PSB, PCdoB, PSOL, PT, REDE and PDT, the ADPF (Allegation of Violation of a Fundamental Precept) Case No. 709 asks the Judiciary to order the government to adopt measures to guarantee the protection of indigenous peoples in the context of the serious epidemiological crisis. The simple fact that APIB, an indigenous organization, was recognized by the Supreme Court as legitimate to present this case is, in itself, a significant achievement.

In an interview to Conectas, Luiz Eloy Terena, legal adviser to APIB, explains the impact of the Supreme Court’s decision and talks about the importance of this case for indigenous populations and about the new challenges they now face to get the Bolsonaro government to comply with the court ruling and implement the measures. Read the interview below:

Conectas – What is the impact of the Supreme Court ruling for indigenous peoples?

Luiz Eloy Terena – There are two dimensions. The first impact is procedural, recognizing APIB’s legitimacy to act within the scope of what we call constitutional jurisdiction, meaning APIB’s legitimacy to file the ADPF case directly with the Supreme Court was recognized. This represents a landmark in Brazilian constitutional law and also in the history of the Brazilian indigenous movement.

Another aspect concerns the content of the ruling. The Supreme Court did not actually grant everything we asked for, but it did come close. In particular by determining the preparation of a plan to bar entry into 31 indigenous lands where there are uncontacted or recently contacted peoples. It ordered the preparation of a plan to combat the virus among indigenous peoples in general and determined that the Brazilian government cater to all indigenous peoples irrespective of whether their land has been demarcated. This was very important for us because it addressed the denialism of the cultural identity of indigenous peoples and even, to a certain extent, the racism of the Brazilian government, which understands that only needs to cater to indigenous peoples living in demarcated areas. In other words, the government does not demarcate indigenous lands and still denies indigenous peoples these and other social rights, such as health care, access to drinking water and education.

Conectas – APIB was recognized as a legitimate organization for filing this type of case in the Supreme Court. What does this represent?

Luiz Eloy Terena – It represents a break with a legal obstacle that existed before. For a long time, indigenous peoples were not considered rights-holders, they could not speak for themselves, they could not access the Judiciary on their own behalf; they always needed to depend on someone else. So, this is very significant in terms of overcoming indigenous guardianship, overcoming coloniality of law and also reasserting that indigenous peoples are rights-holders. This is fundamental.

Conectas – What expectations are there that the government of President Jair Bolsonaro will comply with the ruling?

Luiz Eloy Terena – This is another challenge that we are dealing with at the moment. It has not been easy because not only does the Bolsonaro government have a very different position from that of indigenous peoples; it is, in fact, an anti-indigenous government. But we are noticing that in this context, both in the situation room and in the working group that is preparing the plan to combat the virus, and even from a technical point of view, these people find it very difficult to understand the specifics of indigenous peoples and, to a certain extent, understand how this depends much more on scientific improvement than on an ideological position. So, this is the difficulty we have been noticing. Because even the technical staff in the Bolsonaro government: they are to some extent denialists and they have difficulty basing the plans to combat the virus on health recommendations, the recommendations of health sector experts, so it has been a major challenge. It has not been easy.

Conectas – One important request in the case, which concerns the expulsion of trespassers from seven indigenous lands, resulted in disagreements among the justices. How important is it for the Supreme Court to reach an understanding on this matter?

Luiz Eloy Terena – This was a very negative aspect of the Supreme Court’s ruling. Although the justices recognized that trespassing exists on these indigenous lands and they also recognized that it is serious, they did not address the problem.

Justice Barroso even mentioned a “political cost”. We know that a political cost exists because a ruling like this affects political and economic interests. From mining and logging that obviously has the involvement of local politicians, the representatives of the country’s agrarian elite. So, the question I ask is this: if the Supreme Court, which is the highest court in the country, does not have the courage to address this situation, who can we, indigenous peoples, turn to? I don’t know. I really don’t know. We turn to the Supreme Court because we know that this is, in fact, a political and economic situation that has been going on for a long time and that is a very serious violation of the rights of indigenous peoples. There is even a decision from the Inter-American Commission on Human Rights determining the expulsion of these trespassers and now we know that the Supreme Court too is not tackling this problem. But we see it as an issue that is still pending analysis in the Supreme Court and that could be addressed at a later date. So we, as lawyers of the indigenous movement, will continue working and monitoring these situations of violations and we do not rule out that the Supreme Court may once again hear this specific matter of trespassers.

Justice Alexandre de Moraes argued that he was concerned about the children and families, but we are not dealing here with good-faith squatters. These lands have been demarcated since the 1990s. The people who are there are prospectors, criminals, trespassers. They are not families or squatting in good faith. There are no children there. What they are is criminals. In other words, the Supreme Court is still indebted to indigenous peoples with regard to the expulsion of trespassers who are illegally on these federal lands.