How Brazil’s Xokleng Case Impacts the Future of Climate Responsibility

by Emily Gregg

Photo by Rafael Vilela. Courtesy of Conselho Indigenista Missionário (CIMI)

After a series of suspensions in Brazil’s Supreme Court, possibly the most important legal case of the past 50 years for Brazil’s indigenous community continues. Extraordinary Appeal 1,017,365—a land dispute between the Santa Catarina state on one side and the Xokleng people and the National Indian Foundation (FUNAI) on the other—could cause momentous changes to the demarcation of indigenous lands in Brazil. An outcome against the Xokleng could also exacerbate the devastation of the Amazon to the point of no return.

The issue began when the Environmental Institute of the Santa Catarina state government (IMA) filed a case in 2017 against the FUNAI and the Xokleng indigenous people disputing the Inbirama-Laklanõ territory. The IMA is seeking to claim the 37,000-hectare area that is home to just over 2,000 indigenous people.

Photo by Yarikazu Xipaya. Courtesy of Conselho Indigenista Missionário (CIMI)

The Inbirama-Laklanõ territory had been fully demarcated in 2003 by federal agencies and given protected status. This means that the land is marked exclusively for the use of indigenous people. Yet now the IMA argues that the Xokleng do not have a legal claim to the land using what’s known as the marco temporal or the “time limit thesis.” The trick restricts indigenous territory to that which was lived on at the moment of the promulgation of the constitution on 5 October 1988. The state argues that, since the Xokleng did not occupy the Inbirama-Laklanõ territory on that date, they have no legal claim to it now. 

Cases like this one are common in Brazil. There are currently more than 200 passing through the Brazilian courts. Many are endeavours to swap the lush, green rainforest for economically productive yet environmentally exploitative agricultural, mining, and energy projects. So why is this case receiving so much more attention? The Xokleng case was granted general repercussion status. That’s to say its outcome could be applied to those other cases. It could also encourage the passing of several laws currently in Congress and the Senate that seek to reduce indigenous lands or relax environmental regulations.

“Our history does not begin in 1988!”

Brasílio Pripá, a Xokleng leader, highlights that the history of indigenous land struggles against European transgression and relentless “development” projects is far older than Brazil’s current constitution. As he explains, “If we weren’t in a certain area of ​​territory in 1988, that doesn’t mean it was nobody’s land or that we weren’t there because we didn’t want to [be].” It more likely meant they had been forcibly pushed off that land.

Photo by Caio Clímaco. Courtesy of Conselho Indigenista Missionário (CIMI)

The state of Santa Catarina in southern Brazil, where the Xokleng live along with the Kaingang and the Guarani, was not much explored by the colonists for 300 years after it became Portuguese territory—it lacked the shiny jewels that lured the European magpies to the Americas. However, at the beginning of the nineteenth century, amongst a growing global distaste for slavery, the Napoleonic Wars, and the transfer of the Portuguese court to Brazil, there was a greater desire to boost national wealth through labour and production—to “develop” Brazil. And so, the 1808 Royal Decree by King João VI included a declaration of war on Xokleng Laklenõ to initiate a violent occupation of their land.

Unfortunately for King João, Brazil gained independence in 1824; unfortunately for the Xokleng, the new government continued to encroach, attack, and invade indigenous land. The state needed to secure the new republic’s sovereignty and border with Argentina. It preferred to entrust foreign immigrants with the task rather than regard indigenous inhabitants as citizens. As the century bore on, the immigration drive became systematic, and laws were created around land ownership that sold indigenous land to European settlers without recompense for the original inhabitants.

Photo by Renato Perotto. Courtesy of Conselho Indigenista Missionário (CIMI)

A conflict ensued between the settlers, who believed they had bought “virgin land” that they needed to defend against the indigenous “invaders,” and the original occupants, who used their superior knowledge of the land to attack European settlements. In 1836, the Companhias de Pedestres militias were established to protect the settlers, with orders to annihilate indigenous attackers. The physical violence was soon accompanied by racist and stigmatising discourse about civilisation; for example, the German-Brazilian chronicler Robert Bernhard described how indigenous people could not live alongside the “cultured” Europeans and would “have to perish.” For its own sake, claimed Bernhard, “Culture cannot tolerate such unproductive human beings… it will not spare the human animal embodied in the South Brazilian Indian.”

By 1891, the first constitution of Brazil abolished indigenous people’s status as an ethnic entity and equated them to women and adolescents with fewer rights. Expansion of agriculture in the territory continued as railways were constructed, cattle ranching boomed with the rise of refrigeration, and big business pushed small farmers further inland and into indigenous territory. Any “unoccupied” land became the possession of the state. Meanwhile, the Xokleng were hunted and massacred by the bugreiros, assassins hired by the state government to exterminate indigenous people. In 1914, an area of 40,000 hectares was demarcated as Xokleng territory, a fraction of where they roamed only a hundred years before.

Photo by Ubiratan Suruí. Courtesy of Conselho Indigenista Missionário (CIMI)

During the military government that ruled Brazil from 1964 to 1985, indigenous land was further reduced to make way for money-making development projects. The national economic elite, international economic interests, and those with favourable ties to the state had disproportionate access to the shaping of indigenous policy, while indigenous people were silenced, rather than consulted.

Decree 88.118, passed in 1983, is one example of the laws made to reduce indigenous land. The law increased the requirements for demarcation—thereby making it more difficult—and allowed state agencies to revise the boundaries as they saw fit. Crucially, the law also meant that anywhere where there were white settlers, towns, or farms, indigenous lands could not be demarcated. In effect, it legitimised and legalised the previous century and a half of settler encroachment.

Photo by Aktxawã Júnior. Courtesy of Conselho Indigenista Missionário (CIMI)

Another example is Decree 88.988, which the mining industry in particular played a key role in shaping. It meant that both state and private mining companies could enter and work on indigenous land. Again, “development” was the justification. The Ministry for the Interior and the Ministry for Mines and Energies deemed that “there were not enough reasons to justify non-exploration of the rich mineral reserves, fundamental to the national security and development process, just because they were located inside indigenous areas.”

In 1986, Brazil returned to democracy and in 1988 had a new constitution. The constitution was momentous and somewhat radical in terms of the guarantees and rights it granted to indigenous peoples in Brazil, in part due to the growing political pressure and support for the indigenous cause during the human rights boom of the 1970s. Crucially, it recognised their “original rights to the lands they traditionally occupy” and forbid “the removal of Indian groups from their lands,” except if it posed risk to them, if it threatened the sovereignty of the country, or if the National Congress agreed to it. It specifically noted that any resources within their lands “may only be prospected and mined with the authorisation of the National Congress” with the full participation of the relevant communities. 

Photo by Tiago Miotto. Courtesy of Conselho Indigenista Missionário (CIMI)

By 1985, the Xokleng territory had been reduced to a mere 16,000 hectares. Across Brazil, only 14% of indigenous lands were demarcated. The central argument in the Xokleng case is if those 16,000 hectares – which they physically occupied on 5 October 1988 – or if the law should recognise the lands the land the Xokleng lived on before they were pushed off by European settlers in the nineteenth century, before their population was decimated during the attacks against them in the twentieth century, and before they were forcibly displaced during the military regime. It would mean dismissing the demarcation process conducted since the constitution came into force that has expanded and defined indigenous territory. As Mr Pripá and the other protesters outside Brasilia argue, indigenous history did not start in 1988.

Environmental concerns

60% of the Amazon rainforest is in Brazil. While the rainforest has been gradually shrinking since the arrival of European colonists, the rate of its destruction has accelerated under the administration of President Jair Bolsonaro. Bolsonaro has shown abhorrent disrespect for indigenous peoples, both before his inauguration in 2019 and throughout his presidency. Just like settlers and rulers in the nineteenth and twentieth century, he has embarked on a mission of “civilisation” and “development” of indigenous communities that threatens their survival.

Photo by Leonardo Milano. Courtesy of Conselho Indigenista Missionário (CIMI)

During his election campaign, the then-candidate, whose support base consists of landowners, agriculturalists, ruralists, and evangelicals, promised that if he were to win, “there won’t be a centimetre demarcated for Indigenous reserves.” Encouraged by the president’s attitude, armed groups have invaded indigenous lands for logging, mining, and agricultural purposes. In 2020, there were more land conflicts in Brazil than ever previously recorded. Nearly half of those involved indigenous peoples.

While in power, Bolsonaro’s negligence for the environment has also become more apparent. In December last year, Brazil retracted its 2015 Paris Summit pledge to limit deforestation. In April of this year, the president pledged to double funding for environmental enforcement at an Earth Day summit before signing the federal budget for this year, which cut spending by 24% on the environment the following day.

Photo by Kamikia Kisedje. Courtesy of Conselho Indigenista Missionário (CIMI)

Brazil’s previous Environment Minister Ricardo Salles, appointed by Bolsonaro, denies climate change. He resigned in June amid accusations of links to illegal logging, corruption and money laundering and exploiting the distraction of the pandemic to advance the deregulation of the Amazon.

The attitudes within the Brazilian Government do not reflect the urgent environmental action required in Brazil. A study from the 1970s found that the Amazon made half of its own rainfall. That’s to say that water which falls near the Atlantic coast could evaporate and fall five to six times before reaching the Andes. The water evaporates from the surfaces of the forest, as well as from the transpiration of the trees and vegetation. In the central and eastern areas, evaporation from the vegetation is especially important due to fewer opportunities for rainfall formation.

Photo by Kaitito Pramre. Courtesy of Conselho Indigenista Missionário (CIMI)

The study’s findings inevitably raised the question of how much deforestation the Amazon could take before it stopped producing enough rainfall for the rest of the forest. In 2007, scientists concluded that the tipping point would be 40%. However, compounding factors of the changing climate, increasing wildfires, and CO2-fertilisation has required a re-evaluation of the tipping point figure. The new tipping point is 20-25%. The latest official figure of deforestation from 2018 was 17%.

Already, areas in the Amazon are experiencing much less rainfall. A study by the Stockholm Resilience Centre has shown that the rainfall levels in 40% of the forest are similar to those one would expect to find in a savannah climate. Unprecedented droughts and severe floods are also showing the effects of the loss of forests.

Photo by Leo Otero. Courtesy of Conselho Indigenista Missionário (CIMI)

In 2020, Brazil’s nationally defined targets would have limited deforestation to 3,925km2. In reality, more than 11,000km2 was lost, and deforestation shows no sign of slowing down. In the first five months of 2021, deforestation was 25% higher than in the same period last year, and some 2,548km2 of Amazon rainforest was lost. This is why the protection of indigenous lands like the Xokleng’s has never been more important for the environment. 

Indigenous people from communities across Brazil have united in protests, travelling for days in some cases to join a camp out in Brasilia, Brazil’s political centre. They have called their movement “#LutaPelaVida” or “Fight for Life.” That is what this case represents: a fight for the lives of the land’s inhabitants, for Brazil’s indigenous peoples and indigenous peoples everywhere and—due to the potential environmental consequences—for the life of the whole planet.

Photo by Tuane Fernandes. Courtesy of Conselho Indigenista Missionário (CIMI)

On a practical level, the loss of their lands affects indigenous communities’ ability to grow crops and catch fish or other animals for meat. The loggers, miners, and farmers who enter the territories bring diseases that have decimated indigenous populations in the past and, during the COVID-19 pandemic, have brought death and terror to indigenous communities across the region.

Across the whole Amazon Biome, indigenous territories represent 35% of the region, contributing to the 49.4% of the biome that is under protection. The protection of those lands mean that those sections of the forest are out of bounds for agricultural, mining, and logging industries. It means the survival of the forest where carbon dioxide is turned into oxygen and where water cycles are not disturbed by human interference —all of which plays a vital part in keeping the whole planet in balance.

Basta de violência [Enough violence]

Just as the Xokleng case is only one in a long history of persecution, it is also only one example of indigenous resistance. Their struggle started with raids on early European settlements. Now they are suing the Brazilian president and taking on Brasilia.

Last month, the Articulation for Indigenous People of Brazil (APIB) filed a case at the ICC accusing the President of genocide and ecocide. They accuse him of persecuting indigenous people and destroying their homelands, as well as exacerbating the COVID-19 pandemic which has killed over 1,000 indigenous people, including many leaders and teachers. It follows a case filed in January by indigenous leader Raoni Metukire, also against Bolsonaro, for crimes against humanity. The leader argues that the “destruction of the Amazonian Forest has accelerated without measure” during the Bolsonaro administration.

Photo by Raissa Azeredo. Courtesy of Conselho Indigenista Missionário (CIMI)

The Xokleng case is critical and must reverberate around the world. Not only does this case have the potential to secure or reduce the land rights for the Xokleng indigenous people, but for all indigenous peoples in Brazil and across Latin America. Throughout the region, indigenous communities are forced off their land to make way for extractive industries. In that sense, not much has really changed over the past 200 years. The priority of the elites continues to be the expansion of their coffers in the name of “national security” or “development.” Governments need to recognise the rights of the original inhabitants of these lands and see the benefit such recognition would have for us all. Indeed, the destruction of nature is making some people tremendously prosperous  right now, but money seems quite useless on an uninhabitable Earth.

Emily Gregg is a UK-based journalist and Latin America specialist. She works as the Promotional and Editorial Manager at the Latin America Bureau and was a contributing author to the Bureau’s Voices of Latin America project. She holds an MSc in History of International Relations from the London School of Economics and is currently studying a diploma in Investigative Journalism from the Universidad Diego Portales, Chile.

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