Lula appoints left-wing indigenous jurists to revise the Indian Statute

A group of indigenous jurists was created by the Ministry of Indigenous Peoples (MPI) to propose changes to the Indian Statute. Although the creation ordinances point out that the group was appointed only to analyze the legislation from the perspective of these specialists, the folder points out, on its official website, that the group will “propose a new legal framework for the relationship with the original peoples”.

The group is against the temporal framework – which establishes that indigenous peoples can only claim lands they occupied in 1988 and have no right to inhabited areas after that. They also want to promote the thesis that indigenous people who already live in urban areas and are integrated into civil society should have the same rights as non-integrated indigenous people who live in forests.

The initiative generated controversy. Despite the consensus on the need to improve the legislation, formulated in 1973, indigenous people and parliamentarians fear that the ideological bias of the group’s components could interfere with the proposals presented. The seven indigenous jurists appointed, in an ordinance signed by the Minister of Indigenous Peoples, Sonia Guajajara, are directly linked to the Articulação dos Povos Indígenas do Brasil (Apib) or to regional organizations that are members of it, such as the Coordination of Indigenous Organizations of the Brazilian Amazon ( Coiab).

The nominees are Luiz Eloy Terena, as coordinator; Samara Pataxó, as rapporteur; Maurício Serpa France Terena; Ademar Fernandes Barbosa Júnior Pankararu; Andressa Carvalho Santos Pataxó; Ivo Aureliano Makuxi and Maria Judite da Silva Guajajara.

The ordinance creating the group provides for 180 days to complete the work. More than 100 days have passed since the publication of the ordinance, the MPI informed, through its office, that only two meetings took place. On both occasions, indigenous jurists would have worked on “structuring and defining the schedule of activities”. Asked about the direction given to the conclusions and about the presentation of legislative proposals to amend the Statute, the folder only informed that “the other information will be disclosed on the Ministry of Indigenous Peoples’ page as soon as the document preparation phase is completed”.

Revision of the Indian Statute is necessary, say parliamentarian and indigenous lawyer

In force for almost 50 years, Law nº 6.001, which provides for the Statute of the Indian, brings in its first article the intention of “regulating the legal status of indigenous or forestry and indigenous communities, with the purpose of preserving their culture and integrate them, progressively and harmoniously, into the national communion”.

Senator Plínio Valério (PSDB-AM) believes that the initiative is important, but he also sees it with concern. “Measures to improve the Indian Statute are welcome and salutary, but the debate must be held in Parliament. By legislators elected by the population to represent them”, highlighted the Amazonian senator.

Indigenous lawyer Ubiratan Maia also agrees with the need to revise the Statute of the Indigenous People and highlights the changes that have occurred over the years that the legislation has been in force as the main reason for the changes. “Today, indigenous people need legislation that can support them, especially in terms of free enterprise. Involving, for example, the issue of production. It is necessary to provide legal certainty so that the indigenous people can produce soy, corn, wheat, raise animals on a large scale”, said the lawyer.

At this point, Valério reinforces Maia’s position. “It is important to remember that the Federal Constitution, in Articles 176 and 231, already establishes that indigenous communities have the right to create cooperatives to exploit the riches of their lands. The Indian Statute also provides that these peoples must enjoy the natural wealth and all the utilities of their lands, but, unfortunately, they are prevented from exercising these rights”, said the senator.

Indigenous lawyer says that review of the Indian Statute is already being carried out

The Ministry of Indigenous Peoples has not made it clear how the material prepared by the indigenous jurists will be forwarded, however, the only way to change legislation in force is through another law, which needs to be approved by the National Congress.

For lawyer Ubiratan Maia, the review is “practically done”. He points to the bill (PL) on the time frame, approved in the Chamber of Deputies and now being discussed in the Senate, as the revision that encompasses the necessary changes to the Statute of the Indian. The PL of the time frame alters, among other laws, the one establishing the Indian Statute. “The PL has to be approved to give legal security to rural landowners and also to indigenous people who wish to work and produce on their lands, which are constitutionally usufruct of indigenous people. So, for me, it is this proposal that must be approved by the National Congress, because they are effectively the ones who were elected to be the representatives of the people”, highlighted the indigenous person.

The initiative of the Ministry of Indigenous Peoples to revise the legislation is the main point of concern for Senator Plínio Valério, who is president of the Parliamentary Commission of Inquiry (CPI) of Non-Governmental Organizations (NGOs). “It is especially worrying in the context in which the National Congress is discussing the Temporal Framework and the Federal Senate is advancing with the CPI on NGOs. We have [na CPI das ONGs] exposed the reality and questionable practices of some organizations that call themselves defenders of indigenous peoples, but that, in fact, end up perpetuating misery and lack of opportunities for these communities, raising funds and getting rich in their name”, said the senator .

Jurist says magistrates fail to apply regime more favorable to indigenous people

In an interview with EBC Radio Agency , Apib’s legal coordinator and one of the members of the working group, Maurício Terena, said that the Indian Statute is not fully aligned with the 1988 Federal Constitution. integrated into society, is an outdated idea. “Brazilian magistrates decide that they are not going to apply a more favorable regime to an indigenous person because he is already integrated into civil society and, therefore, is no longer indigenous. whether in the city, whether speaking Portuguese or not – we haven’t stopped being indigenous”, said Terena

The indigenous lawyer also spoke about the intention to strengthen the protection of indigenous territories in the Statute of the Indigenous People. “We understand that we are beings intrinsically connected with the traditional territory. So, it is not possible to talk about our bodies separated from the territorial logic. Therefore, it will also be important for us to bring the issue of land within the Statute”. The statement corroborates the defense for the demarcation of lands through the search for the overthrow of the thesis of the temporal framework, which determines the date of October 5, 1988 for the determination of areas that would be indigenous or not.

Who are the appointed indigenous jurists?

In addition to the connection with Apib, most of the indigenous jurists appointed to revise the Statute of the Indian have in their history actions related to the overthrow of the temporal framework thesis and to agendas linked to the left. “These indigenous people belong to a political current, linked to NGOs and the interests of the federal government, which has its own ideology. So, this is a working group that was formed to, in fact, not contemplate the other interests of indigenous people who want, for example, to plant and raise animals”, said Maia when commenting on the formation of the working group.

For him, those appointed to compose the working group do not represent all Brazilian indigenous peoples. “Indigenous peoples are diverse, not only in their ethnicities, but also in their positions, in their views of the world. So, it is humanly impossible to achieve this representativeness”, said Maia.

Eloy Terena – was born in a Terena village in Aquidauana (MS) and is the current executive secretary of the Ministry of Indigenous Peoples. He is known for having acted in the legal coordination of Apib. Eloy Terena gained notoriety in 2020 by being the first self-declared indigenous lawyer to win a constitutional jurisdiction action in the Federal Supreme Court. Through the action, former president Jair Bolsonaro (PL) was forced to adopt specific protective measures against covid-19 for indigenous peoples.

Samara Pataxó – was born in the Coroa Vermelha village, of the Pataxó people, in Porto Seguro, Bahia. Samara holds a Bachelor’s Degree in Law from the Federal University of Bahia (UFBA), a Master’s Degree in Law and a PhD from the University of Brasília (UnB). On her social networks, the indigenous lawyer published a photo with the other members of the working group. “Dealing with this legislation provokes us to break with the tutelary and integrationist past of the State’s relationship with indigenous peoples (which still haunts us) and allows us to think about the present and the future, in which we are protagonists of our history, subjects of rights, citizens,” said the indigenous woman in the caption. In 2022, Samara was hired to work with the General Secretariat of the Presidency of the Superior Electoral Court (TSE). The invitation was made by the then president of the TSE, Minister Edson Fachin. She serves as chief advisor for Inclusion and Diversity at the TSE. The minister met the indigenous woman during an oral argument at the STF, in which she took a stand against the time frame.

Mauricio Terena – from the Terena people, holds a degree in Law from the Dom Bosco Catholic University and is a doctoral student in Social Anthropology at USP. Maurício Terena took over Apib’s legal coordination, replacing Eloy Terena, and since then has worked with the STF for the overthrow of the time frame.

Ademar Barbosa Junior – of the Pankararu people, he is a legal adviser to the Articulação dos Povos Indígenas do Nordeste, Minas Gerais and Espírito Santo (Apoinme).

Andressa Pataxó – Bachelor of Laws from the Federal University of Bahia, is a legal advisor at Apib.

Ivo Aureliano Makuxi – of the Makuxi people, he is a legal adviser to the Indigenous Council of Roraima (CIR), post-graduating in Public Law with an emphasis on Constitutional Law at the Instituto Verbo Jurídico.

Maria Judite Guajajara (or Kari Guajajara) – holds a degree in Law from the Federal University of Maranhão, a master’s degree from the University of Brasília, is a legal advisor at Coiab and is a member of the Network of Indigenous Lawyers in Brazil. The indigenous woman was also Deputy Secretary of State for Women in Maranhão.