Supreme Court legitimates illegal municipalities: Decision violates indigenous rights

CIMI Newsletter, no. 236, 14 November 1996

One of the worst judicial decisions against indigenous peoples came from the highest level of the Brazilian Judiciary Branch, against which no appeal is possible. On the 7th of November, the Supreme Federal Court unanimously decided to reject the Unconstitutionality Suit filed against the creation of the municipalities of Uiramuta~ and Pacaraima, whose administrative headquarters are located inside the Raposa/Serra do Sol and Sao Marcos indigenous areas, in the state of Roraima. The main problem of this ruling is that, in analyzing the issue, the Justice in charge of the case, Mauricio Correa, said that the areas are not indigenous because their demarcation has not been concluded and they have not been registered so far. The decision restricts the concept of land areas traditionally occupied by indigenous peoples provided for in article 231 of the Brazilian Constitution and contradicts article 25 of Law 6001 (Statute of Indigenous Peoples), according to which indigenous rights do not depend on the demarcation of an area.

This decision may influence future rulings against demarcations of indigenous areas. It indicates that the judicial defense of these areas could only have been successful if they had been demarcated, homologated and registered. In his vote, Justice Correa said that the indigenous areas in question are being subjected to the adversary system provided for in Decree 1,775/96. The reference to that provision is worrying, as the Supreme Federal Court conditioned its decision to an administrative act of the government based on a controversial decree, against which an Indirect Unconstitutionality Suit was filed in March of this year to be judged by the same Supreme Court. Antiindigenous groups of Roraima are celebrating the ruling of the Court, as a request for a Provisional Remedy filed by CIR (Indigenous Council of Roraima) against the same municipalities is yet to be judged by the Supreme Court. The legitimation of these cities may lead to the reduction of the Raposa/Serra do Sol and Sao Marcos areas.