By Junior Wapichana, Fernanda Wapichana and Luciane Macuxi.
On August 11, Advocacy Day, it is common to talk about the importance of the profession, justice and the rule of law. For indigenous lawyers, however, the date also represents an opportunity to reflect on a performance that goes beyond the traditional limits of the profession: the defense of the fundamental rights of indigenous peoples, especially the right to territory.
Indigenous advocacy occupies a space that is still recent in the history of Brazilian law. For a long time, indigenous peoples have been the object of studies, decisions, and public policies, but they have rarely been present as subjects in legal and institutional decision-making spaces. The presence of indigenous lawyers in these spaces represents, therefore, an important change.
For the indigenous legal profession in Roraima, the month of August has a special meaning. In 2008, during the trial of the Raposa Serra do Sol Indigenous Land, Joenia Wapichana made an oral argument before the Federal Supreme Court. She was the first indigenous woman to make an oral argument in the Court.
In that judgment, Joenia defended the continued demarcation of the Raposa Serra do Sol Indigenous Land, presenting legal arguments related to the Federal Constitution, indigenous territorial rights, and the protection of cultural diversity.
The judgment of PET 3,388 has become one of the main precedents of the Supreme Court on indigenous matters. By recognizing the constitutionality of the continuous demarcation of Raposa Serra do Sol, the Court reaffirmed the constitutional protection granted to indigenous peoples and traditionally occupied territory.
The judgment also began to be used later in different debates on indigenous territorial rights, including in discussions related to the so-called time frame.
After the judgment of the Raposa Serra do Sol Indigenous Land, other lawsuits began to define the contours of indigenous rights in the Federal Supreme Court. Among them is RE 1,017,365, related to the Xokleng people and Topic 1,031 of general repercussion, in addition to the lawsuits that discuss Law No. 14,701/2023, currently under trial in the STF this August.
Although the Federal Supreme Court has already declared the unconstitutionality of the time frame thesis, the legal dispute is not yet over. In practice, its effects continue to be present in the debates on demarcation, possession, compensation, removal of occupants, and protection of indigenous territories. The ongoing judgment of the motions is, therefore, fundamental to define how these rights will be effectively applied.
It is important to remember that article 231 of the Federal Constitution recognizes indigenous peoples their social organization, customs, languages, beliefs, and traditions, in addition to the original rights over the lands they traditionally occupy. The constitutional provision also establishes that it is up to the Union to demarcate these lands, protect and ensure respect for all their assets.
The Federal Constitution, therefore, did not create indigenous territorial rights. Article 231 recognized rights that are original, prior to the very formation of the Brazilian State. It is a constitutional recognition of a historical and traditional relationship between indigenous peoples and their territories, and not the granting of a new right by the State.
This understanding is essential to dispel any interpretation that conditions the existence of these rights to a date or circumstance created later by the State itself. Indigenous territorial rights derive from the very condition of indigenous peoples and their traditional relationship with their territories.
This aspect is fundamental to understand the debate on the time frame.
The time frame thesis seeks to establish that only indigenous peoples who were in physical possession of their lands on October 5, 1988, or who proved a situation of possessory conflict on that date, could have their territorial rights recognized.
The legal problem is that this interpretation disregards the historical reality of indigenous peoples themselves.
The physical absence of a people in a given territory on October 5, 1988 does not necessarily mean the absence of traditional occupation. Many peoples were expelled, displaced, or prevented from returning to their lands due to historical processes of violence, invasion, and occupation.
Therefore, the consequence of a historical violation cannot be transformed into a requirement to deny a constitutional right.
In addition to Article 231, the Constitution establishes, in Article 232, that indigenous peoples, their communities and organizations are legitimate parties to file a lawsuit in defense of their rights and interests.
This constitutional provision is especially important for indigenous advocacy. It is not just about allowing indigenous people to have access to the Judiciary. It is about recognizing indigenous peoples as subjects of rights, with legitimacy to participate directly in the defense of their own interests.
Our work is technical. We study processes, the Constitution, legislation, jurisprudence, international treaties and judicial decisions. We participate in hearings, argue orally, produce statements and follow administrative and judicial processes.
But indigenous advocacy also has its own dimension.
When we defend an indigenous territory, we are faced with a right that has a collective, cultural, and constitutional dimension. Land does not represent only a material or economic good. Therefore, the defense of indigenous territorial rights cannot be reduced to an exclusively possessory or patrimonial discussion. It is a constitutional issue.
We are in Brasilia, following the trials, dialoguing with institutions and presenting legal arguments. But we are also in the territories, accompanying the communities and understanding how these decisions can directly affect the lives of indigenous peoples.
This is perhaps one of the most important characteristics of indigenous advocacy: knowing the Law without losing sight of the reality on which the Law will be applied.
There is, of course, an emotional dimension. It is difficult to look only technically at a process when the object of discussion involves the territory of our peoples, the history of our ancestors and the future of our children.
But emotion is no substitute for legal argument. It reminds us why we are there.
Our role is to transform this reality into legal arguments capable of demonstrating to the Judiciary that indigenous rights have constitutional protection and that their interpretation must respect the Constitution, international human rights treaties and the historical reality of indigenous peoples.
For this reason, indigenous advocacy is also a form of institutional resistance. Resisting, in this case, does not mean rejecting the Law. On the contrary: it means occupying the Law, knowing its instruments and using them to guarantee the effectiveness of the Constitution.
From Joenia Wapichana's oral argument in the Raposa Serra do Sol trial to the current debates in the Federal Supreme Court, there is the same trajectory: the struggle for indigenous rights to stop being only recognized in the constitutional text and to be effectively respected.
On this Advocacy Day, celebrating indigenous advocacy is to recognize this trajectory of resistance.