Following intense outcry nationwide and abroad, Brazil’s Supreme Federal Court has recently removed the proposal to open up Indigenous territories to mining and economic activities from a controversial bill that critics say violates the Constitution. However, other contentious points remain, including compensation for non-Indigenous settlers, which advocates say could make the land demarcation process unfeasible.

Presented in February by Justice Gilmar Mendes, the draft bill would allow the federal government to carry out activities of “relevant public interest” on Indigenous lands when there was “no technical and locational alternative” for the exploitation of strategic mineral resources, infrastructure works for public transportation services, energy and telecommunications, among others.

Indigenous leaders, advocates and the United Nations immediately labeled it a setback and an “unprecedented” move in the history of the Supreme Court, an institution that’s entitled to protect Indigenous and minority rights, as dictated by the Constitution. The Supreme Court said it wouldn’t answer Mongabay’s requests for comments. On March 27, Mendes’ judge assistant, Diego Veras, announced changes in the draft, adding that Mendes would debate the mining issue in a separate procedure.

The removal of the mining issue from the proposed bill is what really had to happen, said Luis Ventura, executive secretary of the Missionary Council for Indigenous Peoples, an advocacy group affiliated with the Catholic Church. “Mining in Indigenous territories goes against the grain, clearly attacking the rights of Indigenous peoples to life, to territory, to their own forms of organization and to the exclusive use of the natural resources of their territories,” Ventura told Mongabay by phone.

Aiming to change article 231 of the Constitution that enshrined Indigenous land rights, the draft bill kept controversial points that added further obstacles to an already long land demarcation process, critics say. One of them is the possibility of non-Indigenous occupants remaining in possession of the area — even if it’s a fully demarcated Indigenous territory — until they receive compensation they deem pertinent for both the bare land and improvements.

The draft is the outcome of a years-long legal battle centered in the highly controversial time frame thesis, known as marco temporal in Portuguese. The proposal aimed to nullify any Indigenous land demarcation claims to areas that weren’t physically occupied before the Constitution, even if they could prove the areas were the home of their ancestors. The thesis ignored forced displacements during the country’s military dictatorship (1964-85) and their effects up to 1988 as well as the nomadic lifestyles of some Indigenous communities.

In September 2023, the Supreme Court voted against the time frame thesis but Congress passed a new law establishing it, regardless of the justices’ decision, taking the debate to the Supreme Court once again.

In April 2024, Justice Mendes — who voted with the Supreme Court’s 9-2 majority to block the time frame thesis — halted the trial of all lawsuits related to the issue and created a “conciliation chamber” aiming to settle the conflict, a decision that Indigenous representatives and advocates of Indigenous rights strongly criticized.

“There is no possibility of reconciling fundamental rights. Therefore, even with the withdrawal of mining, maintaining the conciliation chamber is a serious mistake,” Ventura said. For him, the only solution to resolve this conflict is having the Supreme Court’s plenary declaring the marco temporal law unconstitutional.

Legal deadlock

Also on March 27, the Federal Attorney General’s Office (AGU) presented a draft presidential decree excluding mining activities on Indigenous territories but allowing tourism activities led by Indigenous communities; it also would allow the communities to carry out economic activities in cooperation with or contracting with non-Indigenous people since the results of the activities would generate benefits for the community and Indigenous people’s land rights would be maintained. “Indigenous lands may not be leased or subject to any legal act or legal business that restricts direct possession by the Indigenous community,” according to the draft.

The draft decree sets that compensation for necessary improvements and bare land would only be applicable if the non-Indigenous’ resettlement is unfeasible and under the existence of a valid property title. In both situations, uninterrupted occupation before Oct. 5, 1988, would have to be proven. “It is forbidden, in any of the cases of compensation the acceptance of situations or documents that constitute illegal appropriation of public land,” the document said. Otherwise compensation would be due for just the useful and necessary improvements built in good faith in the area, it added.

In a statement sent to Mendes, the AGU said the draft decree derives from “a careful analysis from both a technical and legal point of view” after consultation with specialized areas of the ministries involved, considering the feasibility of the suggested measures, as well as the social, administrative and financial impacts of the proposed legislative changes. The AGU said it opted to present a presidential decree “in order to make the implementation of the rules more flexible and effective” and preserve the president’s authority on these issues.

Although there was no consensus in the government itself, the AGU’s draft decree consolidates just the consensual points, said Marcos Kaingang, national secretary for Indigenous territorial rights at the Ministry of Indigenous Peoples.

According to him, regulating land demarcation by a law would be very restrictive and paralyze the process. “If the Congress is the one who approves the [federal government] budget at the end of the year, they’re going to say how much there will be [allocated] for [land demarcation]. That’s a point that worries us,” Kaingang told Mongabay in a video interview.

That’s why the government proposed a presidential decree to ensure Indigenous territories will continue to be demarcated, he added. “We’ve been trying to put forward middle ground proposals that both serve the Indigenous peoples and preserve the process we have today, but also give a nod in the sense that we’re willing to engage in a dialogue and take on board some points of [marco temporal] law 14.701.”

Both the draft bill and the draft decree would keep Indigenous peoples’ rights to land in areas traditionally occupied without the temporal milestone, which triggered opposition from the agribusiness sector. “The time frame is nonnegotiable. If we need to vote again, we will reiterate these votes and ensure our understanding over the issue,” federal deputy Pedro Lupion, who leads the agricultural caucus, said in a meeting right after Mendes’ draft bill. “We have already taken a position. We start from the principle of not negotiating invaded areas.”

On March 26, the Brazilian Confederation of Agriculture and Livestock sent its 2025 priority legislative agenda, which includes the approval of a constitutional amendment to implement the time frame thesis to bring “predictability in demarcations and legal certainty for rural producers who have due [land] titles and possession in good faith to produce with peace of mind, in addition to reducing land conflicts in the countryside.”

According to Kaingang, there are still outstanding points to be refined and a transitional compensation plan was presented to make a case-by-case assessment of what the best model would be. As the land demarcation process is paralyzed amid this legal deadlock, he said the government is making all efforts for the resumption of the demarcation process as soon as possible. The last meeting of the conciliation chamber happened on April 2, but there was no consensus — the parties are considering extending the deadline of the chamber, created nine months ago.

“The way Mendes’ and AGU’s proposals were presented means that the rights of Indigenous peoples to their territories will only be guaranteed if there are agreements and arrangements with the non-Indigenous occupants in terms of economic compensation,” Ventura said. “Therefore, the right ends up being conditioned. And when a right is conditioned, it ceases to be a right. The right must be fully guaranteed.”

The fight against the time frame thesis will be at the center of the biggest annual gathering of Indigenous groups in the country. Called the Free Land Encampment, the event will take place in Brazil’s capital, Brasília, from April 7-11, with the motto “in defense of the Constitution and life.”

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Karla Mendes is a staff investigative and feature reporter for Mongabay in Brazil and a member of the Pulitzer Center’s Rainforest Investigations Network.She is the first Brazilian and Latin American ever elected to the board of the Society of Environmental Journalists (SEJ); she was also nominated Diversity, Equity and Inclusion (DEI) Chair. Read her stories published on Mongabay here. Find her on 𝕏, Instagram, LinkedIn, Threads and Bluesky.

‘Unprecedented’ Supreme Court bill threatens Indigenous rights in Brazil

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