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How Long Does a Victory Last? What Happens After the Marco Temporal Ruling in Brazil?

By Edson Krenak (Krenak, CS Staff)

Indigenous Peoples in Brazil celebrated a significant legal victory on September 21, 2023, after years of arduous struggle and a pervasive sense of insecurity for our land rights. The highest court in Brazil ruled against the proposed Marco Temporal (temporal framework) thesis, marking a crucial milestone in Indigenous Peoples’ ongoing fight for justice and a significant contribution to the protection of Indigenous Peoples' rights and environmental defense.

The proposed Marco Temporal interpretation of the Constitution would have limited the rights of Indigenous Peoples to the lands they physically occupied on the date of the 1988 Federal Constitution. In its ruling, the Constitutional Court has shown vigilance in its paramount duty to protect the fundamental rights of Indigenous Peoples in Brazil.

The ruling comes in the context of the climate crisis and the universal right to a healthy and protected environment. In the ruling on Extraordinary Appeal No. 1,017,365, the Court, by an overwhelming majority of nine to two, rejected the Marco Temporal as fundamentally incompatible with the constitutional guarantee of the land rights of Brazil's Indigenous Peoples. 

Cultural Survival and Indigenous Peoples in Brazil have consistently condemned the Marco Temporal interpretation as a colonial and genocidal threat to Indigenous lives and the lives of countless species within our territories. Our territories, and the Indigenous Peoples who safeguard them, are critical to maintaining approximately 80 percent of the world's remaining biodiversity.

The ruling generated a swift and strong reaction from political parties linked to industrial agribusiness, mining, and extreme right-wing factions. On September 27, a week after the Supreme Court ruling, the Senate approved a bill by a vote of 43 to 21 that established the Marco Temporal for Indigenous lands. The text, which had previously passed through the House of Representatives, will now proceed to the consideration of President Lula, who has already affirmed his intention to veto the bill.

The Senate had already commenced voting for the Marco Temporal on the same day that the Supreme Court would rule on it, ultimately approving it in defiance of the Court. The Court declared the interpretation unconstitutional, while also deciding that the State must indemnify bona fide occupants who lose their land due to a demarcation. A majority in the Senate and Congress appear to be following the agenda of former President Bolsanaro and the military, which is anti-Indigenous and pro-deforestation, promoting industrial extraction in forests, rivers, and biomes across the country.

The Marco Temporal establishes that Indigenous Peoples can only claim areas they were occupying as of October 5, 1988, the date of the Constitution's proclamation—disregarding centuries of forced displacement, persecution, and land theft. Indigenous Peoples assert that the Marco Temporal should be set at 1500, not 1988. Our presence on these lands predates the arrival of Europeans or any other State society driven by a colonial and extractivist mindset.

Whether in the Supreme Federal Court or in Congress, the Marco Temporal as currently proposed has the potential to jeopardize the lengthy process of up to 287 territories currently in the process of demarcation, according to data from FUNAI, the State agency responsible for Indigenous affairs. 

The 1988 Federal Constitution of Brazil acknowledges the entitlement of Indigenous Peoples to their ancestral territories, specifying that the Union is tasked with the identification, delimitation, demarcation, and approval of all Indigenous lands within the nation. The Magna Carta places the responsibility on the Union to demarcate these lands and ensure the safeguarding and enforcement of respect for all their assets.

Meanwhile, as governments and legislators engage in discussions on laws and policies, the Amazon forest is experiencing the hottest spring ever recorded. The levels of drought and heat are so extreme that Indigenous and local communities are discovering dozens of dead animals and fish—even the emblematic Amazon pink river dolphin, with more than 100 counted dead along the river banks. The root causes of this devastation lie in events both far away—industrialization, extensive fossil fuel use, extractivism—and in the local impacts of deforestation and soil and river degradation in the buffer areas surrounding the forest.

In this context, there are several concerns regarding four aspects that are being considered by the government: 

1. Mining on Indigenous Lands 

Proposed legislation and theories should refrain from addressing the highly contentious and intricate matter of mining activities within Indigenous territories without engaging Indigenous Peoples in the discourse. As we transition to a fossil fuel-free world in the new “green” economy, there is a noticeable surge in the demand for new and increased supplies of raw materials, particularly transition minerals like lithium, cobalt, and nickel. Projections indicate a staggering 400 percent rise in demand in the coming years. Alarmingly, the majority of this intensified extractive industry expansion directly affects Indigenous communities.

There are profound concerns if any legislative proposals in this direction are introduced into the legislative process without providing Indigenous Peoples with the opportunity to voice their perspectives on this matter. Such an approach would constitute a grave infringement on due process, specifically violating the right to Free, Prior and Informed Consent, in addition to contravening international agreements and the nation's ratified laws.

Historically, mining operations on Indigenous lands have brought about calamities, diseases, violence, and infringements upon the rights of Indigenous Peoples. These activities have inflicted irreversible damage on various ecosystems around the world, including those within Brazil. Hence, Cultural Survival strongly implores the National Congress and Brazilian society to legislate on this matter only with the active and meaningful participation of Indigenous communities.

Associacao dos Povos Indígenas do Brasil (APIB), the largest umbrella Indigenous organization in Brazil, issued a statement: ”Mining on Indigenous lands, an activity that intends to authorize all sorts of economic exploitation of traditional territories, poses a high level of harm to the guarantee and maintenance of the rights of Indigenous Peoples, as well as directly threatening their physical, religious, and cultural survival. Recent history shows us that the existence of enterprises for the extraction of water, hydrocarbons, and mineral resources, in practice, results in the destruction of Indigenous territories, contamination of populations by biological and chemical agents such as mercury, the fraying of the social fabric of these communities, and the weakening or even impossibility of their food sovereignty. This also subjects women and children to physical and sexual violence."

2. Compensation to Perpetrators 

The question of compensating those currently occupying Indigenous lands who may have inadvertently received government land titles that overlap with Indigenous territories is a complex issue. It raises concerns about fairness, especially when there's no clear evidence of when this overlap happened or if Indigenous people were violently removed from the land. Essentially, it boils down to whether individuals who may not have realized they were on Indigenous territory should be compensated based on the land's value. This becomes even more critical when considering who might have violated Indigenous rights and been responsible for violent actions against them. We hope that Brazilian society does not and will not compensate those who violated Indigenous Peoples’ rights. 

We therefore propose that:

  • Any compensation scheme remain entirely divorced from the demarcation process, ensuring that disbursement occurs only after the full exercise of territorial rights by affected Indigenous communities. Indigenous rights and land protection first. 
  • This compensation must be evaluated on a case by case basis through appropriate administrative or legal channels, with Indigenous and other civil society organizations fully involved. 
  • In the complex issue of compensating individuals inadvertently occupying Indigenous lands where government titles overlap with Indigenous territories, we suggest that the responsibility should fall on the governmental body that committed the unlawful act, whether at the local, regional, or federal level. This approach ensures that those who caused the overlap or who violated Indigenous rights are held accountable and take the necessary steps to rectify the situation. It also aligns with the constitutional framework outlined in Article 231, paragraph 6 of the 1988 Constitution, emphasizing the importance of respecting these constitutional provisions.
  • All actions must prioritize the protection of Indigenous communities throughout the compensation process. Indigenous communities should not be pressured or made to feel uncomfortable during this process. They should not be coerced into participating in monetary valuation or influencing any aspect of the compensation process. Our aim is to safeguard Indigenous rights and lands, preventing any business transactions with non-Indigenous individuals that could compromise these essential aspects of Indigenous life.


3. Displacement 

The notion of exchanging Indigenous lands for alternative areas, as proposed by certain politicians and also by some judges in the Supreme Court, diverges from the Federal Constitution and should be unequivocally dismissed. Merely recognizing the exceptional nature of such exchanges or making them contingent upon approval from both Indigenous communities and FUNAI is insufficient. This approach opens the door to severe consequences, particularly in times of crisis and external pressures, where communities might be compelled to surrender their ancestral lands in exchange for territories devoid of the same spiritual significance. The Brazilian Constitution explicitly excludes such a possibility, and the Supreme Federal Court, Congress, and Brazilian society should firmly oppose it. 

For many communities, especially Indigenous Peoples, land serves as a cornerstone of identity and culture. In addition to its economic and spiritual value, the land is home to traditional medicine and food systems. As observed globally, forced displacement not only disrupts community structures and traditions, but also results in the loss of sacred and cultural sites, undermining their overall integrity. These intangible losses can prove irreplaceable. An example from Peru highlights this destruction where a mining company resettled an Indigenous community in notably generous terms, providing amenities like paved streets, indoor plumbing, and electricity. However, within three years, residents expressed dissatisfaction due to the lack of meaningful employment and the erosion of their cultural traditions. This led to a surge in alcoholism rates, and, tragically, four residents took their own lives within a year. Such examples underscore the irreversible consequences of displacing Indigenous communities and the paramount importance of safeguarding their ancestral lands.

4. Indigenous Stewardship and Climate Change 

When the UN Special Rapporteur on the Rights of Indigenous Peoples, José Francisco Calí Tzay, was informed of the Senate's stance on the bill related to Indigenous rights, he expressed profound apprehension. Highlighting the broader implications of safeguarding these rights, he said that upholding the rights of Indigenous communities benefits not just Indigenous Peoples, but all of humanity. The Amazon is a vital ecosystem that we must collectively protect, and the Senate decision of such nature poses a significant setback.

Indigenous youth activist Txai Surui explains, "The demarcation of indigenous lands should be a common interest for all Brazilian people because it concerns our biomes, the planet's climate, biodiversity, and the economy, all of which are already affected by the climate crisis. Ensuring our territories secures the life of the forest, the animals, and everyone. Demarcation is part of the solution to addressing the climate emergency. We are the very earth, we are beings of nature. We are the guardians of forests and rivers and their sources. Our territories are the primary stewards of forest conservation."

Indigenous Peoples worldwide play a crucial role in combating climate change by protecting biodiversity and employing sustainable land management practices for centuries. We did not cause the climate crisis, but we can be part of the solution. Our stewardship includes protecting diverse ecosystems like forests, wetlands, and grasslands, which act as vital carbon sinks. Sustainable farming, agroforestry, and traditional, low impact activities such as hunting and fishing help maintain healthy ecosystems while reducing carbon emissions from industrial agriculture and resource extraction. As guardians and keepers of the Earth, we work to prevent deforestation and illegal logging, which are vital for carbon sequestration and biodiversity.

Therefore, we urge the Brazilian government to continue protecting and demarcating Indigenous lands, recognizing Indigenous land rights, respecting their Traditional Knowledge, and ensuring legal safeguards against land encroachment and resource extraction. We insist that implementing international agreements like the United Nations Declaration on the Rights of Indigenous Peoples, ILO Convention 169, and relevant local laws that affirm Indigenous land rights is crucial to justice.

Policymakers should establish a fast, effective, consultative process for demarcating Indigenous lands with active participation from Indigenous communities. They should also allocate resources for monitoring and enforcement against illegal land seizures and deforestation, promoting the sustainable management of these territories. These policies should be accompanied by a comprehensive set of mechanisms aimed at safeguarding the rights and territories of Indigenous peoples. Failing to secure protection alongside demarcation would only perpetuate an issue that has plagued Brazil for decades.

If Brazil succeeds in completing its constitutional obligation to demarcate all Indigenous lands that are currently on hold, the emerging public policies resulting from land demarcation must address the violence within these territories stemming from non-Indigenous actors, socioeconomic inequality, and inadequate legal frameworks, which together create social, economic, and legal insecurity. 

The recent Supreme Court ruling was a solid victory for Indigenous Peoples. Now we must ask, how long does a victory last? The answer hinges on whether we have the time to rescue countless species, forests, rivers, and communities that bear no responsibility for the climate crisis, yet endure the brunt of its dire consequences. The defeat of the Marco Temporal theory represents the possibility of their survival. Indigenous triumph in Brazil must endure, not merely as an isolated victory, but as a testament to our effectiveness in combating climate disasters and preserving ecosystems. This endurance lies in our commitment to safeguarding our rights as the guardians of nature.


Top photo: Pink river dolphin stranded on the shore of Lake Tefé. Extreme heat killed more than 100 pink dolphins in three days in the Amazon. Photo by André Zumak/Instituto Mamirauá.