Brazil’s highest court is currently deliberating the fate of Indigenous land rights in a case that pits ancestral claims against recent legislative efforts to restrict them. The Supreme Court began reviewing the constitutionality of a 2023 law-and a proposed constitutional amendment-that establishes a cutoff date for Indigenous communities to claim ownership of their customary lands, a provision already challenged in earlier rulings [[1]]. The outcome will have important implications for environmental protection in the Amazon rainforest and the rights of Brazil’s Indigenous population, estimated at over 1.69 million people [[2]].
Brazil’s Supreme Court is weighing the constitutionality of a law defining land rights for Indigenous communities, a case with significant implications for land ownership and environmental protections in the country.
On Monday, Justice Gilmar Mendes voted the “time-frame” law unconstitutional, arguing it unfairly restricts Indigenous claims to ancestral lands. He was joined in his decision by Justice Flávio Dino.
The Supreme Court is currently reviewing four actions challenging the law, which was approved by Congress in 2023. Voting is taking place in a virtual plenary session, with justices having until 11:59 p.m. on Thursday, February 18, to submit their votes.
Mendes argued that the law’s provision defining traditionally Indigenous lands as those occupied “as of the promulgation of the Constitution” conflicts with previous Supreme Court rulings from 2023 and jurisprudence from the Inter-American Court of Human Rights.
In 2023, prior to the law’s passage, the Supreme Court had already ruled that Indigenous communities should have land rights secured regardless of a specific time frame for occupation.
Mendes stated the law is disproportionate and creates legal uncertainty by retroactively imposing a standard that requires Indigenous communities to provide virtually impossible proof of traditional land use. He emphasized the law particularly impacts communities lacking formal documentation.
“Our society cannot continue to grapple with open wounds from centuries past that still require solutions today, demanding a public, republican, and humane spirit from all Brazilian citizens – Indigenous and non-Indigenous – and especially from all branches of government to understand that we must choose other minimal safeguards to guide the debate on conflict in the countryside,” Mendes said.
Dino concurred, recalling that the Supreme Court previously held a majority rejecting the time-frame thesis. “This decision – as proposed by Minister Gilmar Mendes – should be reaffirmed, as it represents a binding interpretation of the Constitution. In other words, all norms seeking to enshrine the Time Frame, including through Proposed Constitutional Amendments (PECs), are unconstitutional in light of the Constituent Power,” Dino wrote.
Mendes also pointed to an unconstitutional omission by the state, advocating that the federal government complete ongoing land demarcation processes within ten years. He noted the Constitution initially allotted five years for this process following its promulgation, a deadline that has not been met.
Mendes also deemed unconstitutional the prohibition of expanding already demarcated Indigenous lands, arguing the Constitution guarantees the review of administrative acts.
The justice also voted to approve the proposal developed by the special conciliation commission established within the Supreme Court. After 23 hearings involving Indigenous representatives and rural landowners, the text proposes greater participation from states and municipalities in land demarcations, as well as increased transparency in the processes conducted by FUNAI, Brazil’s National Indigenous Foundation. Mendes believes this proposal should be sent to Congress.
Standoff in Congress
While the Supreme Court considers these actions challenging the 2023 law, the Senate last week approved a proposed constitutional amendment (PEC) that would enshrine the time-frame provision, setting the cutoff date for land claims to October 5, 1988, the date the current Constitution was promulgated.
The amendment now heads to the Chamber of Deputies for review and, if approved, will be promulgated without requiring the approval of President Luiz Inácio Lula da Silva.
Senate President Davi Alcolumbre’s strategy of pursuing the time-frame through a constitutional amendment aims to make it more difficult for the Supreme Court to overturn.
Unlike a regular law (such as the 2023 law currently under review and potentially invalidated if Justice Mendes’s vote prevails), a constitutional amendment can only be overturned if it violates the “petrified clauses,” which protect fundamental rights and guarantees, among other principles.
If the PEC is approved and promulgated, the Supreme Court would likely be called upon again to rule on its constitutionality, and could potentially reach a different conclusion than it will this week.
