It is the next juridical twist, in the continuing story of the demarcation of Raposa Serra do Sol, as indigenous territory, an area at the very North of Brazil, bordering Venezuela. May 14, six indigenous communities submitted a request to the Federal Supreme Court (STF) to be included as interested party in the process that asked the Court to judge the demarcation of Raposa Serra do Sol to be invalid.

 

So, what’s the value of this initiative? A step-by-step approach may clarify this, as even people involved in the Raposa-case get confused by the various procedures going on:

 

1)     The demarcation and homologation process of the area at stake ended in 2005, when president Lula signed the law designating Raposa Serra do Sol as indigenous. As a result, all non-indigenous would have to leave the area.

 

2)     A total of 33 processes were taken to court contesting the legality of the demarcation process. Some of them by individuals, others by senators representing the state of Roraima. The most important one is portaria 3.388 submitted by Mozarildo Cavalcanti and Augusto Botelho, two senators representing the state of Roraima. They claim the presidential demarcation decree to be invalid, because it would be based invalid anthropological reports of the FUNAI.

 

3)     These 33 cases have been awaiting judgement, somewhere in the drawers of the desks of the STF. (As many cases linger in the archives of the Supreme Court; the processes about the demarcation of the indigenous Pataxó Hã-Hã-Hãe area has been going without decision for more then twenty five years). During this delay, most non-indigenous left the area accepting the compensations offered by the Federal Government. Only six powerful rice farmers refused to leave the area.

 

4)     In March 2008, three years after the formal demarcation, the federal government staged the operation Upatakon III to finally remove the non-indigenous. If necessary by force, as armed resistance was expected. This, in fact was the third try. However, end of March, just before the police would move in, the government of Roraima appealed to the Supreme Court, with an ´Ação Cautelar´, requesting that no action would be taken, until those 33 processes would be judged. This request is called an ´Ação Cautelar´. The Court accepted the argumentation and, April 7, ordered a halt to the operation.

 

5)     This decision provoked a lot of turmoil in the area. It spurred demonstrations, block roads, burned bridges, a land occupation by impatient indigenous and a violent shooting by masked guards of that fazenda to evict them, leaving ten indigenous persons wounded. Meanwhile, all over Brazil a virtual war is raging on the opinion pages of the newsletters and on the internet. A high ranking military general commented publicly how unfortunate the demarcation is in his opinion. Playing the good-old tune of the national security (the Segurança Nacional) he stated that the demarcation would actually threaten the Brazilian sovereignty. His comments provoked a scandal as they questioned a decision taken by the president himself, his very boss.

 

6)     To diminish the unrest, the federal court announced it would put the process on the agenda in May. It is not yet clear if any decision on the first process would immediately validate or invalidate the other 32 in line. Any way, two weeks ago, the schedule got delayed because the government of Roraima requested to be accepted as a party in the process. If accepted, the judges will have to study the arguments presented.

 

7)     This is where the indigenous petition comes in, filing the same request. It is actually worth noting that so far the indigenous communities weren’t even a party, even though they are directly affected by the process. After all, it’s their right to land that is at stake. This, actually, is exactly why they argue that the very case must be considered invalid. According to law, all parties involved should have been informed about the case, which obviously never has been done.

 

8)     The next step is the publication of the vote of the promoter of the case, federal judge Carlos Ayres Britto, expected before the end of May. Then the president of the STF, judge Gilmar Mendes will put the case on the agenda. He has commented that the court will evaluate the case in June.

 

 

Dangerous precedent

If the Federal Court decides in favour of the plaintiffs, a precedent is created for all indigenous areas, demarcated or not. It would be the first time that the demarcation of an area is contested after the publication of the presidential decree. A precedent that would certainly open up a box of Pandora of numerous processes and claims contesting the validity of any of the previous presidential decrees. It would put at risk, or at least delay for years, the demarcation of many of the indigenous areas.

 

The arguments

In their claim, the indigenous communities argue that the complete area, as demarcated, is indeed indigenous. So that, by force of the Constitution, the area is theirs. Moreover, they contest that the demarcation would pose a threat to the national security, a fear that was recently evoked by people, including military officers, contrary to the actual outline of the demarcation. The formation of an indigenous area, the indigenous underline, does not inhibit the actuation of the federal state. And, they argue, the non-indigenous do have to leave the area, because the co-existence with the farmers has never been peaceful. In theory, the indigenous may consent to the presence of non-indigenous in their area. However, since the last two decades more then twenty indigenous people were killed in the ongoing land conflict the non-indigenous are not welcome.

 

‘If the Supreme Court is the guardian of the Constitution in which the indigenous questions are based, we hope that the judges will take a decision based in the supreme law of our country. I hope that the political arguments will not be imposed over the rights of the indigenous people’, says Joênia Carvalho Wapichana, lawyer of the six communities.