In September 2023, a landmark victory for indigenous land rights in Brazil was achieved when the Supreme Federal Court (Supremo Tribunal Federal, STF) ruled the marco temporal thesis unconstitutional. This ruling was celebrated as a significant step forward in protecting indigenous territories and affirming their constitutional rights.
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However, this progress was short-lived as the enactment of Law 14,701/2023 in December 2023 effectively reinstated the marco temporal thesis, imposing stringent restrictions on land demarcation processes.
In response to the new law, several legal challenges were filed, arguing that it contradicted the STF’s prior decision. However, instead of declaring the law unconstitutional or re-examining it in light of the previous ruling, STF Minister Gilmar Mendes issued a decision to suspend these legal actions and address the matter first through mediation and conciliation. The first conciliation hearing took place earlier this month (August 5).
This note reviews the evolution of the marco temporal thesis in the context of Law 14,701/2023 and the subsequent developments, shedding light on the controversy surrounding the current approach taken by the STF.
Historical and Legal Background of the Marco Temporal
The marco temporal, or “temporal framework,” is a legal thesis in Brazil that sets a historical cutoff date for recognizing and validating indigenous land claims. According to the thesis, indigenous land rights should be restricted to territories that were physically occupied or claimed by indigenous peoples on October 5, 1988, the date the Brazilian Constitution was promulgated.
Conflicting Perspectives on the Marco Temporal
Advocates of the marco temporal thesis argue that it provides clarity and stability in land disputes by establishing a fixed historical reference point for recognizing indigenous claims. This view is often supported by ruralists, agribusiness interests, and certain political actors who contend that a clear temporal boundary prevents indefinite expansion of indigenous territories and provides a structured approach to land demarcation. They argue that this method facilitates the resolution of persistent land disputes and promotes legal certainty in Brazil, which has a complex history of land ownership conflicts
In contrast, critics argue that the marco temporal unfairly restricts indigenous rights and disregards historical injustices that predate 1988. Throughout Brazil’s colonial and post-colonial history, indigenous lands were frequently invaded, expropriated, or otherwise compromised for agricultural, mining and urban development purposes. This history of displacement and suppression has resulted in profound socioeconomic challenges and the loss of cultural heritage for many indigenous communities.
The Brazilian Constitution of 1988 represented a significant milestone in recognizing and safeguarding indigenous rights. Article 231 of the Constitution acknowledges indigenous peoples´ original rights to the lands they traditionally occupy and mandates the federal government to demarcate, protect and respect these lands. This provision is a cornerstone of Brazil’s legal framework for indigenous rights, reflecting a commitment to addressing historical injustices and preserving indigenous cultures.
The Evolution of the Marco Temporal Concept
The marco temporal thesis was first articulated by the STF in 2009 in the Raposa Serra do Sol case. This landmark decision involved a dispute over the demarcation of the Raposa Serra do Sol territory in Roraima, Brazil. The STF ruled that Article 231 of the Federal Constitution applied only to lands occupied or claimed by indigenous peoples as of October 5, 1988. The court’s decision included nineteen conditions designed to provide legal certainty and stability for the land demarcation process.1
Following this decision, a debate emerged about whether the conditions set in the Raposa Serra do Sol case should be applied to all cases or remain specific to that case. Finally, in 2013, the STF clarified that the conditions were specific to Raposa Serra do Sol do not automatically extend to other proceedings in which similar matters are discussed.2
Despite this clarification, in 2017, an opinion of the Attorney General’s Office ordered that the judgment of the Supreme Federal Court and conditions set by it regarding the Raposa Serra do Sol indigenous land must be followed in all indigenous land demarcation processes by the federal government.3 This opinion effectively extended the marco temporal principle to other cases, leading to further uncertainty in the land demarcation process and intensifying conflicts over land rights.
The marco temporal thesis re-emerged in 2019 when the STF began deliberations on Extraordinary Appeal 1,017,365/SC, which involved a land dispute claimed by the Xoclengues people in the Sassafrás Biological Reserve, Santa Catarina, Brazil. This case, discussed under theme 1031, was recognised as having “general repercussion,” meaning its outcome would set a precedent for the judiciary and for at least 226 similar cases that were suspended awaiting the definition. The trial commenced in August 2021 and had 11 sessions before it was suspended in September of the same year by Minister Alexandre de Moraes for further review.
STF Decision on Marco Temporal: September 2023
The trial before the STF eventually resumed and on September 27, 2023, the STF granted the extraordinary appeal, rejecting the marco temporal thesis by a majority of 9 to 2 votes.4 The court declared that the marco temporal concept was unconstitutional and rejected the notion of a restrictive temporal boundary for recognizing indigenous land claims.
According to the Court, ´´[t]he constitutional text recognises the existence of the indigenous peoples’ original territorial rights, which preexist it, therefore, the administrative demarcation procedure does not constitute the indigenous land, but merely declares that the area is occupied by the community’s way of life.´´
Consequently, the Court ruled that ´´[t]he constitutional protection of ´original rights to the lands they traditionally occupy´ is independent of the existence of a time frame on October 5, 1988 and the configuration of the persistent dispossession as a physical conflict or persistent legal controversy on the date of the promulgation of the Constitution´´.
The STF’s decision was a significant victory for indigenous rights advocates, addressing long-standing grievances and reaffirming the constitutional commitment to respecting indigenous lands and cultures.
Law 14,701/2023: Reinstating the Marco Temporal
Despite the STF’s clear ruling, Congress passed Law 14,701/2023 on October 23, 2023, which effectively adopted the marco temporal principle and imposed additional restrictions on land demarcation and the expansion of existing territories.
The concerns that the law’s approach might undermine the unique aspects of indigenous traditional land possession—essential for their cultural, physical, and environmental well-being as defined by the Brazilian constitution and the STF—prompted President Lula to partially veto the law, removing certain provisions. Nevertheless, Congress overruled most of these vetoes and enacted the law on December 27, 2023.
The legislation heightens concerns about the erosion of indigenous rights and is believed to worsen the vulnerability of indigenous communities by legitimizing criminal activities such as illegal mining, logging, land grabbing, and drug trafficking. As such, the new law is regarded not only as a breach of Brazilian constitutional principles but also as a violation of international standards. This includes the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which guarantees indigenous peoples’ rights to own, use, and manage their traditional lands without temporal constraints, and ILO Convention No. 169, ratified by Brazil, which establishes standards for protecting indigenous rights, including land rights and participation in decisions affecting their territories.
Legal Actions and Minister Mendes’ Controversial Decision
On December 28, 2023, several legal actions were filed challenging Law 14,701/2023. These included Declaratory Actions of Constitutionality (ADC 87)5 by political parties supporting the law and Direct Actions of Unconstitutionality (ADI 7582, ADI 7583, ADI 7586)6 by indigenous groups and political parties opposed to it. These requests sought to invalidate various provisions of the law and called for urgent protective measures to suspend its implementation.
Another action is the Direct Action of Omission (ADO 86)7, filed by the Progressive party, based on the claim of an alleged regulatory omission related to § 6 of Article 231 of the Constitution regarding the exception for “relevant public interest of the Union” to the rule stated in the constitutional provision. The request asks the Supreme Federal Court´s intervention to address this gap and balance constitutional interests.
On April 22, 2024, Minister Gilmar Mendes issued a unilateral decision to suspend the legal actions and pursue mediation and reconciliation instead.8 Although Mendes preliminarily found that several provisions of the law seemed inconsistent with the STF’s prior ruling from September 2023, he chose not to directly address the law’s unconstitutionality or resolve the legal challenges through traditional adjudication. Instead, he controversially decided to refer the matter to a special commission he established for mediation.
According to Minister Mendes, this approach aims to seek a consensual solution that respects constitutional principles while addressing the evolving legislative and political landscape. The commission, made up of 24 representatives from the Union, National Congress, state and municipal governments, civil society and the indigenous population, will conduct several hearings. It will compile all arguments, noting areas of consensus and disagreement, and submit them for review by the 11 Supreme Court justices, who will ultimately make a judgment on the merits of the five actions.9
In addition to opting for mediation, Mendes decided to let the law remain in effect amidst ongoing legal disputes, rather than suspending it until the challenges to the law are resolved. This decision has further intensified the controversy as it affects the rights of indigenous communities and the enforcement of constitutional protections.
Criticism of the Mediation Approach
Mendes’ choice to use conciliation and mediation for addressing constitutional issues is unconventional. While these methods are standard for resolving civil disputes, their application to constitutional and legislative matters, especially those involving fundamental rights, is considered problematic by many.
Civil society organizations, indigenous leaders, and the National Council of Human Rights (CNDH) have quickly voiced concerns that the mediation process might weaken the safeguards established by previous judicial decisions. The CNDH has expressed “particular concern” about the attempt to mediate and reconcile interests involving constitutional rights, stressing that human rights, including those of indigenous peoples, are non-negotiable and must be upheld without compromise.10
The international community has also weighed in. In July 2024, UN Special Rapporteur on Indigenous Peoples, José Francisco Calí Tzay, issued a statement condemning the marco temporal thesis and its endorsement by Brazil’s Congress through Law 14,701/2023. He emphasised that the thesis would violate international human rights standards that recognise indigenous peoples’ rights to their lands based on traditional use and possession, without temporal restrictions. Tzay also noted the environmental impact, pointing out that activities permitted by the law, such as mining and deforestation, could severely compromise Brazil’s climate goals and biodiversity.11
Summary of the Current Developments
The ongoing debate over the marco temporal and Law 14.701/2023 highlights the conflict between legal interpretations, indigenous rights and political pressures in Brazil. The STF’s choice to pursue conciliation instead of outright invalidating the law has understandably sparked controversy.
The first conciliation hearing occurred on August 5, setting the stage for future sessions. Additional hearings are scheduled for August 28, September 9, and September 23. These meetings will address the Supreme Court’s jurisprudence, international human rights conventions and potential amendments to the Temporal Framework Law, drawing on previous debates and STF interpretations.
As the process unfolds, the full impact of these decisions will become clearer. However, it is evident that resolving this issue will have significant consequences for the protection of indigenous territories, the integrity of Brazil’s legal framework and the country’s commitment to human rights and environmental sustainability.
Notas:
1 Petition 3388 / RR – RORAIMA, STF, Judgement of March 19, 2009.
2 Petition 3388 / RR – RORAIMA, STF, Decision on Motion for Clarification, October 23, 2013.
3 Opinion No. 001/2017/GAB/CGU/AGU, Process: 00400.002203/2016-01, July 19, 2017.
4 Extraordinary Appeal 1017365 / SC – SANTA CATARINA, STF, Judgement of September 27, 2023.
5 Declaratory Action of Constitutionality (Ação Declaratória de Constitucionalidade) – ADC 87 – was filed by the Progressive Party (Partido Progressistas), the Republicans (Republicanos), and the Liberal Party (Partido Liberal). The action seeks to affirm the constitutionality of Law 14.701/2023 in its entirety, particularly concerning the provisions vetoed by the President.
6 Direct Action (Ação Direta) – ADI 7.582 – was filed by the Articulation of Indigenous Peoples of Brazil (APIB) and the Socialism and Liberty Party and Sustainability Network. ADI 7.583 was filed by the Workers’ Party (Partido dos Trabalhadores), the Communist Party of Brazil (Partido Comunista do Brasil), and the Green Party (Partido Verde), and ADI 7.586 was filed by the Democratic Labor Party (Partido Democrático Trabalhista).
7 Direct Action of Omission (Ação Direta de Omissão) ADO 86, filed by the Progressive Party (Partido Progressistas).
8 Joint Decision ADC 87, ADI 7.582, ADI 7.583, ADI 7.586, and ADO 86, Minister Gilmar Mendes, April 22, 2024.
9 Entenda as audiências de conciliação do STF sobre a lei do Marco Temporal, Supreme Federal Court website.
10 National Council of Human Rights (CNDH) Public Note No 8/2024, May 10, 2024.
11 Statement of the UN Special Rapporteur on the rights of Indigenous Peoples, José Francisco Calí Tzay, July 11, 2024.
Author: Natalie Rosen
Image: Antônio Cruz/Agência Brasil
