The Demarcation of Indigenous Lands in the context of the “Time Frame Thesis”
By Eloísa Machado de Almeida*
Between advances and setbacks in recent years, the demarcation of indigenous lands has faced major challenges at the national level due to the “time frame” (marco temporal) thesis. In this context, international bodies have been essential in reminding Brazil of its commitments to Indigenous peoples.
The 1988 Brazilian Constitution recognized Indigenous peoples' original rights to the lands they traditionally occupy and imposed on the federal government the duty to demarcate and protect them. Although the Constitution provided for a five-year deadline for the completion of all indigenous land demarcation processes, thirty-seven years have passed, and hundreds of Indigenous lands await demarcation.
Since the 1988 Constitution, there have been advances and setbacks in the demarcation of Indigenous lands with governments demarcating some lands. However, between 2016 and 2022, the period that includes the governments of Presidents Michel Temer and Jair Bolsonaro, no Indigenous lands were demarcated.
The same movement of advances and setbacks can be seen in the Brazilian judiciary, with periods in which the interpretation of the demarcation of Indigenous lands advanced and retreated. The issue of the time frame thesis exemplifies this movement well.
The time frame thesis states that the original rights to the lands would only be recognized to the Indigenous peoples who were occupying them on the date of the promulgation of the Constitution on October 5, 1988. Although this thesis is legally quite fragile, it is at the heart of the disputes that affect the demarcation of indigenous lands in the Brazilian judiciary.
This argument regarding the time frame thesis appeared for the first time in the judgment that the Brazilian constitutional court, the Supreme Federal Court, made in 2009 on the demarcation of the Raposa Serra do Sol Indigenous land, in Roraima. The decision's mention that the Constitution had worked with “the date of its own promulgation (October 5, 1988) – as an irreplaceable reference for occupation data” [1] that stimulated a wave of litigation challenging lands already demarcated and in the process of demarcation.
One of these cases reached the Brazilian Supreme Court again in 2016, using the time frame thesis to question the traditional territory of the Xokleng people in Santa Catarina. Judged in 2023 and conferring binding effects on the entire judiciary, the court decided that “constitutional protection of original rights over the lands that they traditionally occupy is independent of the existence of the time frame of October 5, 1988”. [2]
Less than a month after the Supreme Court ruled on the case, the Congress approved Law 14,701/2023, directly contradicting the court's decision and providing for a time frame for the demarcation of Indigenous lands.
The law was challenged in the Supreme Court and, despite the recent ruling on the matter, instead of a decision, a forced conciliation was ordered, in which Indigenous peoples are a minority. Within the scope of this conciliation, a bill is being developed that significantly reduces constitutional protection for Indigenous rights.
Although the issue of the time frame has strong constitutional and, therefore, national implications, the dispute over the rules for demarcating indigenous lands was taken to international bodies--the Inter-American system, the global system, and the international criminal jurisdiction--for reasons that included non-compliance with international rules of free, prior and informed consent; the possibility of increased violence against indigenous peoples and their territories due to the legal uncertainty of demarcations; and the climate impact that it may cause.
Within the global system, the UN Special Rapporteurs on the Human Right to a Clean, Healthy and Sustainable Environment, Climate Change, and Toxics and Human Rights expressed “deep concern” about the course of a negotiated agreement in the Supreme Federal Court, urging “Brazilian authorities to suspend these regressive measures, which ultimately prioritize the economic and political interests of a few to the detriment of environmental protection and human rights for the benefit of all.” [3]
In the inter-American system, the inadequacy of the time frame thesis to international standards was the subject of press releases stating that “the application of this thesis contradicts universal and inter-American human rights standards, putting at risk the very existence of Indigenous and tribal peoples in the country.” [4]
The Inter-American Human Rights Court (IACHR) and the UN have jointly condemned violence against indigenous peoples, stating that the “wave of violence is aggravated by the slow progress in the demarcation of Indigenous lands and by the continued legal uncertainty” [5] due to the persistence of the time frame thesis. Cases of violence and threats against Indigenous peoples in Brazil have been the subject of injunctions and provisional measures in recent years, that affect the Munduruku, Ye`kwana, Yanomami, Pataxó Hã-Hã-Hãe and Tapeba.
In communications sent to the Office of the Prosecutor of the International Criminal Court, the time frame thesis is described as a central strategy to weaken Indigenous territories, which is necessary for the implementation of an anti-Indigenous policy that could lead to the extermination of Indigenous peoples in Brazil.
In the current scenario, in which there appears to be an alignment between the legislative and judicial branches in actions that seek to weaken Indigenous rights, international bodies become even more necessary to remind Brazil of its commitments to Indigenous peoples.
[1] STF, Pleno, Pet. 3388, relator Carlos Britto, j. 19.03.2009.
[2] STF, Pleno, RE 1017365, relator Edson Fachin, j. 27.09.2023.
[3] CIDH, comunicado de imprensa 103/2023.
[4] CIDH, comunicado de imprensa 252/2024.
[5] Declaration of the UN Special Rapporteurs on the Human Right to a Clean, Healthy and Sustainable Environment, on Climate Change and on Toxics, and Human Rights in relation to possible setbacks to indigenous and environmental rights in Brazil of 25 February 2025.
*Eloísa Machado de Almeida has a master's and doctorate degress, is a human rights lawyer, and a professor at Fundação Getúlio Vargas Law School in São Paulo.
This article was written for issue 162 of the WBO newsletter, dated April 18, 2025. To subscribe and receive free weekly news and analysis like this, simply enter your email in the field provided.
