| 18-08-2017

Brazil Supreme Court backs indigenous peoples

In an extraordinary session held this week, the Supreme Court recognized indigenous peoples' rights to the ancestral territories, disregarding the controversial “Marco temporal” theory.

The large State of Mato Grosso argued that lands in the Xingu National Park and in the Nambikwára and Parecis reserves had been unjustly transferred to the indigenous population and demanded compensation. Despite fears the contested “Marco Temporal” theory* could be used against the rights and interests of indigenous peoples, the Supreme Federal Court (STF) dismissed the claims last Wednesday.

The decision represented a great breakthrough for Brazilian indigenous communities, particularly after an opinion of the Federal Attorney General's Office on the matter was endorsed by President Michel Temer, in July. This opinion obliges all federal government bodies to adopt the restrictive interpretation of the “Marco temporal” theory for any case of demarcation, which requires indigenous peoples to prove that they were occupying the territories in question in 1988. This measure could paralyze 700 processes in progress.

Victory for all Brazilian indigenous peoples

The STF move constitutes not only a victory for indigenous communities in the areas-who, according to FUNAI’s anthropologists have been living in those lands for eight centuries, but also for all Brazilian indigenous peoples, including the Guarani and Kaiowá. One needs to recall that the Guarani and Kaiowá indigenous territory of Guayraroka in Mato Grosso do Sul was revoked by the STF when applying the controversial theory.

The decision is in line with the recommendations of UN Special Rapporteur on the rights of indigenous peoples, Victoria Tauli-Corpuz, who last September pointed out that the STF must "ensure that future judgements on the rights of indigenous peoples are fully consistent with national and international human rights standards”. She also urged "the elimination of the barriers that prevent indigenous peoples from realizing their right to justice. By the same token, the STF ruling corresponds with the 2016 European Parliament’s resolution, which underlined Brazil’s responsibility to maintain and apply in full, the provisions of the national constitution.

A key message to the legislative and executive

Such a positive verdict for indigenous peoples occurs in a context of increasing land grabbing and deforestation, harassment and violence, and against a backdrop of political turmoil that is seriously hitting social policies.

In the view of the legal advisor of Brazil’s Indigenous People Articulation (APIB), Luiz Eloy Terena, the STF reaffirmed, once again, that lands traditionally occupied by indigenous peoples are an inherited right. "For the indigenous people this is an important moment, it is an important decision. STF Judge Barroso made it clear that the ‘Marco Temporal’ theory is not binding and does not apply to Brazil’s indigenous lands. This is an important precedent and constitutes a message by the STF to the legislative and executive that the rights of indigenous peoples is fundamental and should not be mitigated in the name of political and economic interests”. 


  • “Marco temporal” theory*: This theory was discussed in the context of the 2009 judgment of Petition 3.388/RR on the demarcation of the indigenous land named Raposa Serra do Sol. The rapporteur was Minister Carlos Britto. In the final judgment, the STF established that the indigenous peoples had the right to the whole territory concerned. One of the arguments used in the judgement was that these lands were being occupied by these indigenous peoples at the time when the Federal Constitution—in which indigenous peoples’ original rights are recognized—was promulgated, i.e. October 5, 1988. Some STF members have stressed that non-occupied lands in 1988 do not lose their traditional status as a result of actions undertaken by non-indigenous persons. However, other courts and some STF members have interpreted the theory in a restrictive manner, claiming that in order to have the right to their lands guaranteed, indigenous peoples should prove that they were occupying those territories in 1988. This fails to consider the violent process that removed several indigenous communities from their lands, as well as the historical and structural injustice they faced.
  • For more information, please consult FIAN Brazil and APIB campaign “    Seu Direito É Nossa Pauta”.