In victory for indigenous peoples, Supreme Court rejects ‘time frame’ thesis
Majority on the Court understand that demarcation of indigenous lands is a constitutional right that should not observe the time frame of the 1988 Constitution
Fotos da Marcha indígena em Brasília, contra a aprovação do Marco Temporal no STF em junho de 2023. Foram 3 dias de marcha e os povos originários caminharam em frente aos ministérios, congresso e, no dia da votação, em frente ao STF. Foto: Gabriel Guerra/Conectas
In a historic ruling, the Supreme Court overturned on Thursday, September 21, the ‘time frame’ thesis by a majority of votes, representing a victory for the indigenous peoples of Brazil. Nine of the 11 justices considered the idea of a time frame for the demarcation of indigenous lands to be unconstitutional.
Defended by the rural lobby, the thesis limits the recognition of indigenous lands to only those that were occupied or claimed by native peoples on October 5, 1988, the date of promulgation of the Brazilian Constitution. This thesis has now been ruled unconstitutional by the majority of the justices on the Supreme Court.
The rapporteur of the case, Justice Edson Fachin, was the first to vote, back in 2021. He stated in his vote that the time frame thesis disregards the classification of indigenous rights as fundamental rights, i.e. an entrenched clause that cannot be suppressed by amendments to the Constitution.
According to Fachin, the constitutional protection of “ancestral rights over the lands they traditionally occupy” does not depend on the existence of a time frame or the determination of stubborn dispossession through physical conflict or a legal dispute existing on the date of promulgation of the Constitution.
“The Supreme Court ensured the application of constitutional values and the defense of the rights of indigenous peoples. Rejecting the time frame guarantees recognition of the right to land and the State’s obligations to demarcate and protect it,” said Gabriel Sampaio, director of litigation and advocacy at Conectas. Conectas participated in the judgment as an amicus curiae and argued that the time frame thesis ignores historical violations suffered by indigenous peoples, including forced displacements.
Xokleng tribe case
The Supreme Court judged Special Appeal No. 1,017,365, a case disputing a land repossession claim filed by the Santa Catarina State Environment Institute against the National Indian Foundation (FUNAI) and indigenous peoples from the Xokleng tribe. The case made it to the Court in 2016. In the judgment, the justices decided that legal cases involving demarcations of indigenous lands should not follow the time frame thesis.
The judgment was concluded in a week marked by a symbolic coincidence: Friday, September 22, was the 109-year remembrance of the forced contact with the Xokleng tribe. According to CIMI (Indigenous Missionary Council), it was on this date, in 1914, that the tribal leaders Kovi Pathé and Vomblé Kuzu left a Xokleng encampment to meet with officials sent by the Indian Protection Service (SPI), which had been founded just four years earlier by Marshal Cândido Rondon.
In a decision on April 11, 2019, a full bench of the Supreme Court unanimously recognized the ‘general repercussion’ of the judgment. This means that the ruling in this case will serve as a precedent for all cases involving indigenous lands at all levels of the Judiciary.
There are many land demarcation cases and ownership disputes involving indigenous lands that are currently in the courts. There are also many legislative measures that attempt to remove or dilute the constitutional rights of indigenous peoples. These include Bill No. 2903 pending in the Senate that proposes to transform the time frame thesis into law. By accepting the ‘general repercussion’ status, the Supreme Court also recognizes that there is a need for clarification on the matter.