The future in the hands of Brazil’s Supreme Court

Published August 29, 2023

Translated by Christopher Peterson

versão em português

On August 30, the Brazilian Supreme Court resumed the review of a case that has dragged on for years and that has focused the attention of indigenous peoples, environmentalists, and the agribusiness caucus in the Brazilian Congress. The justices will decide the fate of an area occupied by the Xokleng, Kaingang, and Guarani peoples. The area is also claimed by the Santa Catarina state government, which demands repossession of the same land. The territory in dispute is small, measuring just eight hectares, the equivalent of eight soccer fields, but the outcome will have major repercussions for all the indigenous peoples of Brazil.

This is because the Supreme Court is examining whether the so-called marco temporal (literally the “historical cutoff point” or “time frame”) can be applied to this case. The marco temporal refers to the legal theory according to which the original peoples can only demand the demarcation of lands where they were already living on October 5, 1988, the date Brazil’s prevailing Federal Constitution was enacted. If the indigenous people were not occupying the territory on that date, for whatever reason, they would automatically lose the right to claim the area for themselves. The marco temporal position was even upheld by the Supreme Court in a ruling in 2009, in a context quite different from the present case, and it has come under harsh criticism from indigenous peoples for an elementary reason: many indigenous peoples had been driven off their traditional lands before 1988, not rarely by government agents.

The disputed area was occupied by the indigenous people in the first decade of the 21^st century, thus after the historical cutoff. The case is important because the ultimate interpretation by the Supreme Court will apply to dozens of cases involving the marco temporal that are now on hold in the court, awaiting this ruling.

As of this writing, two justices have already voted against the marco temporal: Edson Fachin, the reporting judge for the case, and Alexandre de Moraes. Justice Kassio Nunes Marques, nominated by Jair Bolsonaro, has voted to uphold the cutoff. In June, Justice André Mendonça requested additional time to review the evidence, and last week he returned the case to continue the review. He had promised this to Chief Justice Rosa Weber, who had not wanted to retire from the court without casting her vote. She will only remain in office in the court until early October.

Mendonça, the so-called “terribly Evangelical” justice nominated by Bolsonaro, was the first to vote when the trial resumed. Brasílio Priprá, a Xokleng leader that has followed the case since the beginning, had the opportunity to speak with Mendonça. To win him over, he drew on the religious faith that the justice has in common with many members of the Xokleng people who belong to the Assembly of God and other Neo-Pentecostal churches. Pripá said to Mendonça that he, as a judge and pastor, has a commitment to the justice of man, but also to divine justice. Priapá left the conversation without learning how the justice was going to vote. “He didn’t give me a clue, whether yes or no,” Priprá said to piauí.Priprá is 65 years old and worked as an employee of the National Foundation of Indigenous Peoples (Funai) for fourteen years. Familiar with Brazil’s indigenous affairs policy, he has acted as an informal ambassador for his people in Brasília. In his WhatsApp profile, he uses a photograph from a Supreme Court session in 2019 in which he spoke in defense of the indigenous cause. “I’ve talked to various justices at the behest of other indigenous leaders,” he declared. The Xokleng leader also met with Justices Rosa Weber, Cármen Lúcia, Edson Fachin, and Luiz Fux and left convinced that they were aligned with the indigenous peoples’ interests. “These judges gave us a little more peace of mind.”

The Xokleng leader hopes that the Supreme Court will overturn the marco temporal and acknowledge the indigenous peoples’ right to the lands they have occupied traditionally, as provided in the Constitution. But he is not optimistic. Alexandre de Moraes’s vote left the indigenous peoples very worried: although the justice acknowledges that there is no historical cutoff point, he opens the possibility for owners of rural properties located on indigenous peoples’ lands to be compensated for vacating them, a position that indigenous peoples say is tantamount to rewarding land-grabbling. “Rather than solving a problem, it’s going to cause a terrible conflict,” said the Xokleng leader.

Priprá believes that the federal government will lack the funds to compensate the land-grabbers installed on indigenous peoples’ lands all over Brazil, leading inevitably to a surge in violence. “The way Brazilian society is armed to the teeth, there’s going to be a bloodbath of indigenous peoples,” he claimed. “You don’t need to be a legal expert or judge to realize that the marco temporal is going to cause the worst conflict in the last five hundred years.”

 

In late August, Priprá accompanied piauí on a visit to the Ibirama-La Klãnõ Indigenous Land, inhabited by members of the Xokleng, Kaingang, and Guarani peoples. The reservation is in the Santa Catarina mountains, in the Itajaí River Valley, 260 kilometers northwest of the state capital Florianópolis. There are just over two thousand inhabitants according to data from the Socioenvironmental Institute (ISA). The area measures 37 thousand hectares, slightly larger than the city of Belo Horizonte, of which eight hectares are under examination by the Supreme Court. But another case is under review, in parallel to the eight-hectare case, involving the indigenous peoples’ entire land area. They claim that the territory covers a total of 37 thousand hectares, while the state of Santa Catarina contends that it is only 14 thousand, about the size of the city of Niterói.

The Xokleng people are backed by a decree from April 3, 1926, signed by then-governor of Santa Catarina, Antônio Vicente Bulcão Vianna, demarcating the territory occupied by the indigenous people. The decree mentions 20 thousand hectares – not as much as the 37 thousand the Xokleng are claiming, but more than the 14 thousand cited by the state government. Priprá showed piauí the document, yellowed and tattered along the edges, which he keeps in a plastic envelope. “It’s the original document, not a photocopy,” he stated. “I keep it under lock and key.” The indigenous people made a point of keeping the document to have it in their hands forever in case they were challenged. “This is the original traditional land of the Xokleng people. It’s documented here.”

The decree from 1926, determining the land area at 20 thousand hectares, was never enforced to the letter. To complicate matters, when the indigenous land was finally demarcated in 1956, it was limited to the 14 thousand hectares that the state recognizes today. The area beyond this limit, that is, the remaining 23 thousand hectares, was subdivided and sold. It is occupied today by 486 non-indigenous families and private companies according to Priprá’s figures. The Xokleng leader accompanied the piauí team to a bridge over the Rio Hercílio that separates the area acknowledged by the state from that claimed by the indigenous people. “These are the 23 thousand hectares that they stole from us and that we’re demanding through the Supreme Court,” he said.

The document certifying the 37 thousand hectares was issued by a Funai working group in 1997. The report led to a ruling in 2003 signed by then-Minister of Justice Márcio Thomaz Bastos, acknowledging that the 37 thousand hectares are the area traditionally occupied by the Xokleng people in the Itajaí Valley. The ruling was challenged in the courts by the state of Santa Catarina and by companies and private individuals that had received deeds on the lands. The original ruling and the first appeal favored the deed owners, and the case ended up in the Supreme Court.

The boundary dispute involving the Ibirama-La Klãnõ Indigenous Land is just one of the more recent chapters in a long story that confined the Xokleng to an infimal portion of the territory they occupied before the Europeans came. The Xokleng were a highly mobile nomadic people that occupied a swathe of territory between the coast and the plateau, from Paraná to Rio Grande do Sul. They lived by hunting game and gathering the Araucaria pine nuts that were native to this part of the Atlantic Forest, but that are now scarce on the Ibirama-La Klãnõ Indigenous Land. With the arrival of German, Italian, and Polish immigrants in the South of Brazil in the 19^th century, the Xokleng were driven to Santa Catarina and had their territory steadily reduced. After contact with whites, in 1914, they were forced to abandon their nomadic way of life and began to grow crops.

The darkest and most shameful chapter of this story was the action by the bugreiros, an armed militia financed by the state and by private interests to exterminate the bugres (savages), as indigenous peoples were called pejoratively in the South of Brazil. Records of activity by the bugreiros in the upper Itajaí Valley date to the 1870s, as told by anthropologist Silvio Coelho dos Santos in the book Índios e Brancos no Sul do Brasil: A Dramática Experiência dos Xoklengs (Indians and Whites in the South of Brazil: The Dramatic Experience of the Xokleng People), published in 1973 and available on the ISA website.

Santos narrates the horrendous details of the violence perpetrated by the bugreiros. They worked in armed bands of eight to fifteen gunmen, raiding the indigenous peoples’ territories, usually before dawn to take the occupants by surprise. They conducted systematic massacres, often followed by ransacking and fires. “After starting their work with bullets, they finished it with knives,” according to one passage in the book. The assassins did not even spare children. At the end of the killing sprees, they sliced the ears off the cadavers to collect bounties for the murders.

The raids by the bugreiros were ordered and paid for by settlers, the agencies that managed the European immigrant settlements, and the Santa Catarina state government itself. Their activity lasted until at least 1946. “We’re not talking about 1500, but about the 1940s,” said Juliana de Paula Batista, attorney for the ISA. According to her, it is necessary to call things by their name: “The state of Santa Catarina perpetrated ethnic cleansing in this region.”

 

When the legal theory known as the marco temporal appeared in a case in 2009, the Supreme Court ruled in favor of the indigenous peoples. At the time, the court was examining the demarcation of the Raposa Serra do Sol Indigenous Land in the state of Roraima. In that case, Senator Augusto Botelho (PT-RR) petitioned to overturn the ruling that demarcated the territory. The justices rejected the senator’s argument and ruled for demarcation of the land and for the immediate removal of the non-indigenous occupants. They determined that the indigenous people had the right to the lands they occupied on the date when the 1988 Constitution was enacted. The idea of the marco temporal was voiced by Justice Carlos Alberto Menezes Direito, nominated by Lula in 2007 and who died in 2009.

With the ruling on the Raposa Serra do Sol Indigenous Land, the indigenous peoples gained the right to the lands, but they later paid an extremely high price for the victory. By setting a historical cutoff point, the Supreme Court justices opened a legal Pandora’s box: a wave of challenges to the demarcation of indigenous peoples’ lands that had not taken the 1988 Constitution’s enactment into account.

After that, the court made clear that the understanding adopted for the Raposa Serra do Sol Indigenous Land only applied to that case. The Supreme Court denied the claim by the Brazilian Confederation of Agriculture and Livestock (CNA) for the historical cutoff point to apply to all cases of demarcation of indigenous lands. “The justices always knew that it was not about a consolidated legal precedent on the issue, and that it was subject to on-going debate,” said Juliana Batista.

However, that was not enough to prevent the challenges based on the historical cutoff theory. The legal insecurity increased in July 2017, when a report by the Attorney General’s Office determined that the federal government would thenceforth adopt the marco temporal, as well as a series of conditioning factors stipulated by the Supreme Court in the Raposa Serra do Sol case. With this gesture, then-President Michel Temer pleased the agribusiness caucus at a time when he was seeking support in Congress to block charges of corruption filed by the Federal Prosecutor’s Office. The Attorney General’s report was suspended in 2020 by Justice Edson Fachin, reporting on the marco temporal case. But again, it was not enough to placate the greed for indigenous peoples’ lands.

 

Brazil’s 1988 Constitution did not set a date by which indigenous peoples needed to occupy their lands to have the right to them. In other words, the Constitution does not establish any historical cutoff point. Article 231 acknowledges their “original rights to the lands they traditionally occupy, and it is the responsibility of the federal administration to demarcate them, to protect and ensure respect for all of their possessions”. The wording defines the indigenous lands as those “inhabited permanently, used for their productive activities, indispensable for the preservation of the necessary environmental resources for their wellbeing and for their physical and cultural reproduction, according to their uses, customs, and traditions”. The Constitution guarantees indigenous peoples’ permanent possession of the lands and the exclusive usufruct of their resources and determines that the rights to the lands are not subject to statute of limitations.

When Edson Fachin announced his vote against the marco temporal in the case under review in the Supreme Court in 2021, he declared that “the Constitution’s protection of the original rights to the lands traditionally occupied by [the indigenous people] does not depend on the existence of a historical cutoff point”. He also argued that the indigenous peoples’ rights to the traditionally occupied lands are original, that is, they precede the formation of the State itself – therefore, they date back to long before the 1988 Constitution’s enactment, or for that matter to any other Constitution in Brazil’s history. Fachin’s vote further sustained that the indigenous peoples’ rights established in the 1988 Constitution are fundamental rights and therefore cannot suffer any reversal.

In the original wording of Article 231, indigenous peoples have the right to the “immemorially possessed lands where they are permanently located”. The wording that ultimately prevailed was proposed by Senator Jarbas Passarinho (PDS-PA) in an amendment that passed by a vote of 497 to 5, as reported in the O Globo newspaper. “The historical cutoff was defeated by the Constitutional Congress,” proclaimed attorney Rafael Modesto of the Missionary Indigenist Council, who is defending the Xokleng people in the Supreme Court cases. “What [agribusiness interests] are trying to do in both Congress and the Supreme Court is to revive a theory that has already been debunked.”

According to jurist Eloy Terena, executive secretary of the Ministry of Indigenous Peoples, the marco temporal theory is based on a literal and mistaken interpretation of the Constitution’s wording. Since the Constitution states that indigenous peoples have the right to “the lands they occupy traditionally”, in the present tense, this would purportedly assume the date of the 1988 Constitution’s enactment. “But all of us jurists know that this is a poor reading of the law,” Terena said to piauí. “We need an interpretation that seeks to understand the scope, meaning, and spirit of the law.”

Terena argues that the 1988 Constitution was not the first to acknowledge the indigenous peoples’ rights to their lands. “Since the Constitution of 1934, all of Brazil’s constitutions have upheld the rights of indigenous peoples to their traditional lands,” he declared. Whoever agrees with the reasoning of the marco temporal should set the cutoff date in 1934, when these rights were acknowledged for the first time. “But the fact is that the Constitution does not establish a date,” Terena concluded.

According to the executive secretary, the struggle for their territory is fundamental for indigenous peoples because it is the basis for all their other demands. “We have demands today related to health, education, and social identity rights that are denied to us. It’s racism. All these rights are closely related to claiming our territory, which takes place differently for each indigenous people,” Terena said. “For indigenous peoples, to speak of territory is to speak of guaranteeing the basis from which all the other rights stem, and that is why it is important to defeat the marco temporal.”

 

The Statute of the Indians, a law from 1973, and the 1988 Federal Constitution were important victories in the struggle for indigenous peoples’ rights. Before that, the original peoples were treated as wards of the State, and the prevailing view was that in time they would be assimilated into the national society. “Until then, the idea was one of a transient right,” as explained to piauí by indigenist André Villas-Bôas, cofounder of the ISA. “If the indigenous peoples were fated to extinction, there was no reason to demarcate their lands.”

This view began to change in the 1970s, when the Ecumenical Center for Documentation and Information (Cedio) launched a survey of Brazil’s indigenous population. “They realized that rather than dying out, the indigenous peoples were growing and recovering,” Villas-Bôas said. That was the start of a turning point with the guarantee of the original rights acknowledged by the 1988 Constitution. “The indigenous peoples began to take the perspective that they were part of the country’s future, not of the past.”

This change in the legal status of indigenous peoples’ rights explains the resistance by agribusiness to recognizing such rights. “Part of the Brazilian elite still refuses to accept that indigenous peoples have rights that override their own right to private property,” the indigenist continued. “And the elite obviously devised a way to put an end to this history, which is the marco temporal.” The position defended by agribusiness denies the right to land for indigenous peoples that had been driven off their territories violently before 1988, whether by government agents or landgrabbers.

(Curiously, no mention is ever made of a historical cutoff for absconders of public lands. On the contrary: an amnesty for such land-grabbing is declared periodically, an incentive for the grabbers to continue to encroach on public lands until the next amnesty is announced. In practice, landgrabbers that invade public land enjoy greater legal protection than indigenous peoples, the inhabitants of the lands since time immemorial.)

The Xokleng people were driven off their traditional lands, just as the Guarani Mbya in Santa Catarina and the Xukuru in Pernambuco (see article on the issue). There are countless examples. “Various situations explain why some peoples were not in the territory they are claiming, and each situation shows the perversity by which these vulnerable minorities were excluded during the country’s colonization,” Villas-Bôas said.

Isolated indigenous peoples will be especially vulnerable if the marco temporal theory prevails, since they have no way to prove that they were occupying their lands in 1988. It is not known for certain how many isolated indigenous groups exist in Brazil.

The Socioenvironmental Institute, a nongovernmental organization that defends the rights of the indigenous peoples of Brazil and produces reference data on them, has not done, nor does it intend to do, a survey of the groups that were on their lands on October 5, 1988. It would be tantamount to playing the enemy’s game. “Such an approach would validate the assumption by agribusiness that the marco temporal is an objective criterion, which is far from the truth,” said ISA attorney Juliana de Paula Batista. “The marco temporal forces indigenous peoples to prove a fact that occurred more than thirty years ago, when this proof was not required.”

According to the Articulation of Indigenous Peoples of Brazil (Apib), the marco temporal poses a threat to all the 1,393 indigenous lands in different stages of demarcation because all the territories could be subject to reassessment. The theory denies the indigenous peoples’ presence in Brazil’s territory and their contribution to the country’s history, according to Marcos Sabaru, political advisor to Apib, in a manual on the subject. The marco temporal “is a machine to shred history,” he wrote. For Sabaru, the theory turns logic upside down by framing indigenous peoples as invaders. “It’s as if the indigenous peoples were the ones that arrived in the caravels.”

Setembrino Camlem, recently elected chief-president of the Ibirama-La Klãnõ Indigenous Land with 57.5% of the votes, takes this same perspective. “I’d like to see a marco temporal for the people that came to Brazil after 1500,” the Xokleng remarked to piauí.

 

The marco temporal case in the Supreme Court is not the only source of concern for the indigenous peoples. Various rights that they enjoy today, including the right to traditionally occupied lands, are also threatened by Bill of Law 2.903 under review in the Senate (better known as Bill of Law 490, the number used during its review in the House of Representatives).

The bill in question was submitted in 2007 by Representative Homero Pereira (PSD-MT) and originally proposed that the demarcation of indigenous peoples’ lands be performed by Congress (many jurists considered the idea unconstitutional, since the 1988 Constitution determines that demarcation is the prerogative of the Executive Branch). Pereira died of cancer in 2013, so he did not witness the changes to his bill in 2018. At the time, Representative Jerônimo Goergen (PP-RS) proposed to set the historical cutoff on October 5, 1988.

This was not the only change to the bill that proposed to undermine the original peoples’ rights. The basic wording of Bill 490 that was approved by the House opened the door to mining and the construction of highways, hydroelectric dams, and other projects on indigenous lands without prior consultation with the original peoples, thus breaching an international treaty signed by Brazil and that has the force of law since it was ratified by Congress. The bill further authorizes cultivation of transgenic crops on these lands (currently banned) and allows non-indigenous people to act inside the territories. It prohibits the expansion of lands already demarcated, opens gaps for them to be challenged if they fail to meet the criteria set in the bill, and permits filing challenges in all stages of the demarcation process.

The points in Bill 490 that have drawn the most criticism from indigenous peoples include the possibility of contact with isolated peoples and the section that allows the federal government to repossess lands that have already been demarcated, “based on changes in the community’s cultural traits or other factors resulting from the passage of time”. A technical note by the legal department of the Articulation of Indigenous Peoples of Brazil stated that the bill violates various constitutional provisions and the fundamental rights of indigenous peoples. The note concludes that if Bill 490 passes, it will make the demarcation of indigenous peoples’ lands impossible.

The House of Representatives rushed a vote on Bill 490 in late May after it was brought up by Speaker Arthur Lira (PP-AL), in his attempt to preempt the Supreme Court’s review, which had been scheduled for the following week by Justice Rosa Weber. The bill passed by 283 votes to 155 and moved on to the Senate.

Senate Speaker Rodrigo Pacheco (PSD-MG) announced that the bill would not follow the fast-track review adopted by the House, but that it would follow the normal process in Senate committees before a vote on the floor. The first was the Committee on Agriculture and Land Reform, where the report in favor of the bill, drafted by Soraya Thronicke (Podemos-MS), passed easily by a vote of 13 to 3 on Wednesday, August 23. The bill will also be examined by the Committee on Constitution and Justice, but Pacheco has also been pressured to send it to the Committees on Social Affairs, the Environment, and Human Rights.

 

In late August, the leading discussion on the marco temporal shifted back to the Supreme Court, with the resumption of the review and the reading of Justice André Mendonça’s vote. If no other justice requests further time to study the evidence, the ruling on the marco temporal may be finalized before Bill 490 is voted by the Senate. The bill can be voted on and approved by the Senate even if the justices conclude that the historical cutoff is unconstitutional. In this case, it is practically certain that Bill 490 will be contested by the Supreme Court itself.

Environmentalists and jurists that are following the case closely are watching not only the justices that remain to vote on it, but also their position towards the proposals raised by Justice Alexandre de Moraes. “Moraes’ vote brings two new elements to the debate,” explained Rafael Modesto, the attorney for the Xokleng people in the Supreme Court cases. One element is the possibility of offering an indigenous people an equivalent territory to the lands whose demarcation they are demanding. According to Modesto, this would violate the traditional nature of the indigenous peoples’ lands, acknowledged by the Constitution. “The indigenous people have a cultural connection to their traditional land, where their ancestors are buried, and where their myths and ceremonies take place,” he stated. “To propose a similar area while ignoring the people’s connection to the land violates the Constitution.”

The other novelty in Moraes’ vote – and the most worrisome in Modesto’s assessment – is the possibility of an “advance compensation” for holders of deeds on indigenous peoples’ lands. According to the prevailing understanding, compensation only applies to improvements on land that has been occupied in good faith – applicable, for example, when the occupant was unaware that it was indigenous territory. Justice Moraes also proposed prior compensation for the bare land in cases where the indigenous people’s presence in that territory cannot be proven on the date of the 1988 Constitution’s enactment. Modesto contends that advance compensation creates a new stage in the demarcation, tending to make the process perennial. “By acknowledging both the indigenous people’s traditional rights and the legitimacy of land deeds, he is acknowledging two rights where only one applies, that of the indigenous people,” he declared.

Modesto further said that he is not against the idea of compensation, so long as it is proposed in different terms. “We don’t need to reinvent the wheel to provide sufficient and necessary legal conditions for compensations to take place outside of the demarcation process,” he states. For him, the only solution that would provide legal security for the indigenous peoples is that the other justices would follow the reporting justice’s understanding. “Fachin’s vote has to be confirmed in its entirety to rule out the marco temporal and guarantee the demarcations.”

 

The potential approval of the marco temporal by the Supreme Court or Congress would affect not only indigenous peoples. Since the measure could trigger challenges to indigenous peoples’ lands that have already been demarcated, it could jeopardize the plant cover in these territories and all the life there. Indigenous peoples’ lands are home to 80% of the world’s biodiversity, although they cover only 28% of the planet’s land area according to the United Nations. In Brazil, indigenous lands are the ones where native vegetation is best preserved, as shown in a survey by Mapbiomas, an initiative by NGOs, research centers, and companies that maps Brazil’s plant cover. The study showed that indigenous lands lost only 1% of their native vegetation in thirty years, while private properties lost 21%.

Jurist Eloy Terena of the Ministry of Indigenous Peoples notes that indigenous peoples’ lands are important for confronting not only the climate crisis, but also health crises. “It’s proven that the origin of pandemics relates directly to the unbridled exploration of biodiversity,” Terena says. “It is much more beneficial to demarcate indigenous lands than to turn them over to monoculture, where you reap only one benefit but cause widespread environmental devastation.”

A study released in June by the Institute for Environmental Research in Amazonia (Ipam) proposed to calculate the potential deforestation triggered by approval of the marco temporal. In the study’s most pessimistic scenario, where half of the indigenous lands in the Amazon, Cerrado, and Pantanal would be deforested, the marco temporal would destroy 55 million hectares of vegetation, nearly the size of the state of Bahia.

The scenario envisaged by the study would prevent Brazil from reaching its target of zero deforestation by 2030. Even more seriously, it could push the Amazon past the tipping point, where the forest would lose its capacity to regenerate and to produce the rains that irrigate agriculture in other regions of the country. “From the legal point of view, strengthening the indigenous territories is extremely important for guaranteeing large forest areas, which are important sources of water, thermal comfort, food, and fish for society,” as explained to piauí by geographer and environmentalist Ane Alencar, the study’s co-author. “To protect these territories also means protecting cultures thousands of years old and Brazil’s heritage at all levels.”

 

When Brasílio Priprá spoke in a Supreme Court session in 2019, he used his limited time to expound his people’s point of view. “I had five and a half minutes to tell more than five thousand years of the Xokleng people’s history,” he recalled. Priprá took advantage of his allotted time to insist that the lands are occupied traditionally by his people and are properly documented. “I also denounced the dam that changed our life so drastically.”

The dam cited by Priprá is one more traumatic chapter in the Xokleng people’s history, the most recent blow that has strained their way of life. The dam’s construction aimed to attenuate floods in the lower and middle Itajaí Valley, which were causing damage in Blumenau and other industrial cities in the region. Construction began on the North Dam in 1976, but it was not inaugurated until 1992.

Th Xokleng people were never consulted before the construction and paid a high price. The resulting reservoir flooded 900 hectares. It was not just any area: it was the only flat and arable terrain in the Ibirama-La Klãnõ Indigenous Land. The dam eliminated 95% of the indigenous people’s arable land and drove them off onto hillside areas unfit for cultivation. Decades after being forced into a sedentary way of life, the Xokleng people had nowhere else to grow food.

As if this imposition were not enough, the first five years of the dam’s construction were plagued by floods that devastated homes and crops, leaving death and destruction in their wake. Th Xokleng people were never properly compensated for the damage caused by State action and omission, and the wounds have not healed to this day. “I lost a brother, a nine-year-old son, and more people in the floods,” said Willi Ndilli, a 79-year-old Xokleng man during an interview he gave to piauí on top of the dam, next to the door to the engine room. “The dam brought sorrow for us. Our peace of mind is gone,” he continued. “When the dam fills, we have to wait for the whole river to drop, and meanwhile there’s no sugar for the children.”

Ndilli was 32 when the construction work began and misses the life that was lost forever. “Before the dam, we all lived together,” he said – today the indigenous people are scattered across nine villages. “It was a time when we lived in peace, with no worries, and we slept soundly.” He and his relatives caught fish, gathered pine nuts and fruit, and ate together. “We lived a happy life,” Ndilli said. “Later, Indians started dying one by one.”

The Xokleng elder is determined to struggle for the territory his people are demanding in the Supreme Court. “Thirty-seven thousand hectares is little, but we only want what is ours,” he declares. Asked if life would improve if they recovered the lands, he said no, since life would not go back to before. “They took everything from us, all our wealth.”

At the end of his testimony, Ndilli thanked those present for the opportunity to spread his message. “People never hear about Indians suffering. It’s good that you came.”