Brazil Supreme Court strikes down Indigenous land time-limit doctrine for second time

Judicial and congressional clash

In early 2024, Mendes created a special commission within the Supreme Court to discuss the application of Law 14,701 and possible adjustments to the legal framework governing Indigenous land demarcation.

The commission included representatives from the executive branch, Congress and state and municipal governments. Of its 24 members, only six represented Indigenous organizations. Citing the lack of parity and the idea that constitutional rights should not be subject to negotiation, the country’s main Indigenous umbrella organization withdrew from the group.

Even after Indigenous groups left, the commission continued its work throughout 2024 and produced a proposal for legislative changes to the demarcation system, which was later incorporated into the rapporteur’s vote, with a recommendation that it be sent to Congress.

For Juliana Cesario Alvim Gomes, a constitutional law professor at the State University of Rio de Janeiro, the case highlights a specific type of institutional conflict, distinct from other recent clashes between the Supreme Court and Congress.

Unlike disputes involving investigations of lawmakers or judicial intervention in political processes, she said, the marco temporal case directly concerns the protection of fundamental rights of a minority already recognized by the court in 2023.

In that context, she said, Congress’ legislative response through Law 14,701 intensified the conflict by contradicting a judicial ruling on constitutional rights, while the court’s handling of the case — including suspending demarcations and opening rounds of conciliation — prolonged uncertainty and hindered the enforcement of those rights.

She added that concessions introduced in the rapporteur’s vote and the decision to keep the issue open created confusion over which interpretation ultimately prevails.

That confusion centers on two aspects of the vote that, despite rejecting the marco temporal doctrine, drew criticism from legal scholars, Indigenous organizations and two dissenting justices on the court.

The first involves expanding compensation for non-Indigenous occupants, including payment for the so-called “bare land,” a mechanism not expressly provided for in the Constitution. Under that approach, individuals occupying land claimed by Indigenous peoples who assert good faith and a valid title could be compensated so the land returns to Indigenous control.

The second point is the creation of a right of retention — allowing occupants to remain on the land until compensation is fully paid — and the possibility of compensating Indigenous communities when demarcation is deemed unfeasible.

Renata Corrêa Vieira, an Indigenous rights lawyer at the Instituto Socioambiental, said Mendes’ vote introduced new barriers to completing demarcations.

“In Brazil’s land history, many titles are fraudulent, the product of land grabbing and killings,” she said. “And with the right of retention, Indigenous peoples will not return to their land unless the federal government has a massive budget for compensation, which it does not.”

Vieira added that compensation also violates original rights by severing ancestral ties. “Indigenous peoples do not relate to land the way non-Indigenous people do,” she said. “They have origin stories, and there is an entire cosmology tied to that specific territory that cannot be replaced.”

The dispute is far from over. Alongside the Supreme Court case, the Senate on Dec. 9 approved a proposed constitutional amendment that would write the marco temporal doctrine directly into the Constitution. The proposal must still be considered by the lower house.

Rodrigo Brandão Viveiros Pessanha, a constitutional law professor at the State University of Rio de Janeiro, said there is “a real and concrete possibility that this conflict will escalate.”

“In a way, Congress is doubling down, and the issue will inevitably return to the Supreme Court,” he said.

He said the most stable solution would require an agreement among the executive, legislative and judicial branches on criteria for Indigenous land demarcation.

“But that is a very difficult agreement, because the positions are antagonistic and the agribusiness sector — which favors the marco temporal doctrine — is far more represented than Indigenous peoples,” he said. “This is an emblematic case of why the Supreme Court, in exercising constitutional review, must protect minorities that are underrepresented in Congress and depend on constitutional protection, particularly from the court.”

Courthouse News reporter Marília Marasciulo is based in Brazil.