Brazil's top court backs special protection for indigenous communities, but won't set timeline for exit of outsiders

A member of the Yanomami community gets medical attention on July 1, 2020 in Roraima, Brazil.

(CNN)Brazil's Supreme Court on Wednesday handed a partial victory to the nation's embattled indigenous communities, who are struggling against an insidious new enemy: the Covid-19 virus.

The court affirmed an earlier court decision that required the federal government to implement safety measures to contain the spread of the coronavirus, which has swept through the many remote communities with deadly effect.
"It was a great victory," said Dinaman Tuxa, executive-coordinator of APIB, an indigenous group that brought the lawsuit against the government along with six political parties, describing the ruling as a historic reparation for injustices against indigenous people even before the pandemic.
"If it wasn't for [the court], this demand would be still in the drawers of the Executive and the Legislative," he said.
    But the indigenous groups' main demand was rejected: A deadline for all outsiders -- including miners, developers and the military -- to leave their lands.

    Hard-hit communities

    Brazil's indigenous communities have been hammered by Covid-19. By early August, more than 22,000 indigenous people had been diagnosed with the coronavirus, and least 631 had died from it, according to APIB. But due to limited testing, the real toll could be higher.
    In a tragic coincidence, a prominent indigenous leader Chief Aritana Yawalapiti of the Upper Xingu territory died of the virus on the day of the ruling, according to his nephew Kaiulu Yawalapiti. "My heart is in pieces, bleeding," Yawalapiti told CNN.
    The chief, 71, was admitted to ICU on July 22 after suffering from severe breathing problems. His son, Tapi Yawalapiti, told CNN that same day that the Upper Xingu lacked medical supplies, testing kits, and medical assistance to fight the Covid-19 pandemic.
    "Covid-19 spreads very fast, the whole community is sick, children, the young, the elderly. We are being neglected by the Brazilian government, they are not helping us enough and it seems that they want to decimate us," he said.
    Dinaman Tuxa of APIB said Yawalapiti's death meant much more than the loss of a singular life. "Those elderly are the keepers of knowledge, languages, traditions, festivities, rituals," he said. "We are losing much more than people, we are losing our culture, our nation."
    Some 800,000 indigenous people live in villages throughout Brazil. As the pandemic has spread, many of the communities have echoed Yawalapiti's complaint about government neglect.
    As the coronavirus spread through Brazil this year, the country's health ministry and local governments did install indigenous wards in hospitals throughout the Amazon. In conjunction with the defense ministry, they also sent medical equipment, supplies and personnel to military hospitals in remote areas such as São Gabriel da Cachoeira, Tabatinga, and Javari Valley.
    But some key initiatives to protect indigenous Brazilians have been stymied at the very highest levels of government.
    On July 8, President Jair Bolsonaro vetoed parts of an emergency bill that would have assured access to drinking water, free distribution of hygiene products and the distribution of cleaning and disinfection materials to indigenous communities, citing the cost. He also vetoed a proposal ensuring mandatory emergency funds for indigenous people's healthcare and has argued that legislating mandatory expenditures does not "account for the respective budgetary and financial impact, which would be unconstitutional."
    The vetoes fit into a larger pattern for the pro-business, right-wing leader, who has a historically antagonistic relationship with indigenous Brazilians. Many rights activists have protested the increase of illegal mining and logging on their lands which followed Bolsonaro's rise to power.
    The judge who wrote the July 8 ruling that was affirmed Wednesday by the Supreme Court cited Bolsonaro's remarks in his decision. "It is also worth noting that there has been a large government resistance to the realization of rights indigenous peoples' rights," Justice Luis Roberto Barroso wrote, citing media reports quoting Bolsonaro's support for development, including "indigenous reserves make the Amazon unfeasible."
    Indigenous people in Brazil often live in communities which are far from hospitals, in areas which often lack basic infrastructure. Those who move to towns or cities can end up in precarious living conditions with few public services, increasing their vulnerability to health issues.
    A study conducted in May and June reported that indigenous people are five times more likely to contract the coronavirus compared with the country's white population.
    The study by Pelotas Federal University found that indigenous Brazilians' vulnerability remains higher than that of white Brazilians, even within the same socioeconomic status and with the same number of residents in the home.
    "The interpretation of these analyses suggests that indigenous subjects were at substantially higher risk than other ethnic groups," the study said.
    Overall, Brazil is second only to the United States in terms of coronavirus cases, according to the Johns Hopkins University tracker. As of Saturday morning, it had reported nearly 3 million cases with fatalities inching toward 100,000 people.

    No deadline for outsiders

    The new safety measures mandated by the Supreme Court include the protection of isolated and recently contacted communities, the establishment of a crisis committee involving indigenous groups and the supply of health assistance to territories that were not yet recognized by the government.
    In response, Brazil's Ministry for Women, Family and Human Rights has told CNN that it's already complying with the Supreme Court decision by creating a working group on July 22 to develop a plan to combat Covid-19.
    But the court's reluctance to set a timeline for the departure of outsiders was a setback for the litigants.
    Amid the pandemic, health risks to the indigenous communities have been exacerbated by the presence of outsiders, according to their leaders.
    APIB sought the removal of outsiders from territories of Yanomami, Karipuna, Uru-Eu- Wau-Wau, Kayapó, Araribóia Indigenous Lands, Munduruku and Trincheira Bacajá. "Those 7 territories are suffering life-threatening situations," said Eloy Terena, legal advisor to APIB.
    "It is estimated that more than 20,000 illegal miners are currently inside the Yanomami land," said Dario Kopenawa, a leader with the Hutukara association, which represents the community in the Amazonian territory, home to 27,000 people and known for its rich gold deposits.
    That number was disputed by Brazilian Vice President Hamilton Mourao, who is leading the government's campaign to combat illegal mining and logging and who said, via Twitter, the number was closer to 3,500 illegal miners.
    More recently, military missions to distribute medical supplies have alarmed indigenous leaders, who say aid should come through the health ministry, which already has outposts in indigenous lands and where health workers understand indigenous concerns.
    "We are very upset with the way it was done," Júnior Hekurari, President of the District Council of Indigenous Health (Condisi) Yanomami e Ye'kuanajust told CNN.
    The first military mission to the Yanomani, between June 29 and July 5, involved nearly 50 people onboard, including over 20 medical staff and 18 journalists. "They were supposed to only bring supplies and medicines, not a full committee with dozens of people," Hekurasi said.
    The Defense Ministry said that all the personnel on the mission -- aimed at providing medical assistance and supplies -- had been tested for Covid-19.
    Two other military missions -- to different indigenous communities -- took place in the past few weeks, and the Army said it followed protocols by ensuring everybody taking part had quarantined for 14 days before taking part.
    On Wednesday, the Supreme Court's majority said that while the presence of outsiders was illegal, it refused to set a deadline. Instead, it ordered Brazil's government to establish an "action protocol" for their departure.
    "This shows the strength of the agribusiness, the miners and the politicians," said APIB's Terena. "We were very concerned, because if the Supreme Court didn't want to confront those people, who would then?"
    The justices however did acknowledge the fragility of the indigenous lands. Their decision highlighted that Brazil's indigenous people -- for historical, cultural, and social reasons -- are more vulnerable to infectious dis