Between August 7th and 18th , the Brazilian Supreme Federal Court (STF) will again analyze issues related to the temporal framework and the legal criteria applicable to the demarcation of indigenous lands. Although the Court has already declared the unconstitutionality of the thesis that conditioned the recognition of indigenous territorial rights on the occupation of the lands until October 5, 1988, issues that could have significant effects on the effectiveness of the rights guaranteed by the Federal Constitution remain under judgment.
The current risk, therefore, does not lie in the revival of the temporal framework thesis, but in the possibility that new legal interpretations will produce similar effects, creating obstacles capable of delaying, restricting, or hindering the realization of indigenous territorial rights. Among the issues under discussion are the possibility of compensation for bare land in certain circumstances, the continued presence of non-indigenous occupants until these compensations are paid, and the legal treatment given to land reclamations carried out by indigenous peoples in defense of their traditional territories.
It is concerning that a trial of such constitutional, social, and environmental importance is taking place in a virtual environment, despite the expressions of support from indigenous organizations and leaders for an in-person session. The effective participation of the directly affected peoples strengthens the democratic legitimacy of judicial decisions and realizes the principles of transparency, due process, and social participation, especially in processes involving fundamental collective rights.
The issues submitted to the Supreme Federal Court have the potential to directly impact the duration of land demarcation processes, amplify land conflicts, and increase legal uncertainty. Furthermore, they could affect already recognized indigenous lands, stimulating new litigation and questioning of previously consolidated territories, with direct consequences for the protection of indigenous peoples and the stability of land regularization processes.
It is fundamental to reaffirm that the Federal Constitution did not create indigenous territorial rights. It recognized pre-existing, original, and imprescriptible rights that predate the very formation of the Brazilian State. For this reason, the constitutional protection of traditionally occupied lands cannot be conditioned on temporal frameworks incompatible with the constitutional order, nor can it be emptied by interpretations that impose undue restrictions on its effectiveness.
The guarantee of indigenous territorial rights transcends the protection of specific groups. It is a prerequisite for the conservation of biodiversity, the protection of forests and water resources, addressing the climate crisis, and preserving Brazilian cultural diversity. The effectiveness of these rights is also an essential element for promoting socio-environmental justice and for realizing the constitutional project inaugurated in 1988.
Given this scenario, we understand that the decisions of the Supreme Federal Court must be guided by the constitutional regime for the protection of indigenous territorial rights, enshrined in Article 231 of the Federal Constitution, in accordance with Convention No. 169 of the International Labour Organization (ILO) and other international human rights instruments ratified by Brazil. The judgment must preserve the original nature of these rights and reject interpretations that, indirectly, reinstate limitations incompatible with the Constitution and with the international commitments undertaken by the Brazilian State.
More than resolving land disputes, this trial will define the scope of constitutional protection afforded to indigenous peoples and the consistency of the Brazilian State with its own legal order. Legal certainty will not be achieved by creating new conditions for the exercise of already recognized fundamental rights, but by respecting the Federal Constitution, the consolidated jurisprudence of the Supreme Federal Court, and the national and international commitments undertaken by Brazil.
The Supreme Federal Court's decision will not only define the future of indigenous land demarcations. It will reaffirm the Brazilian State's commitment to the Constitution, human rights, democracy, and the protection of the country's socio-environmental heritage. It is not enough to reject the temporal framework; it is necessary to prevent its effects from being reintroduced through other means.