Brazil’s Supreme Court has delivered a long-awaited ruling upholding Brazilian Indigenous peoples’ claims to their traditional land. It did so by rejecting what’s called the ‘Temporal Framework’ principle, which only allowed for the demarcation and titling of lands physically occupied by the Indigenous groups who claimed them by 5 October 1988, when the current constitution was adopted. This excluded the numerous Indigenous communities who’d been violently expelled from their ancestral lands before then, including under the long military dictatorship between 1964 and 1985.

The case was brought in relation to a land dispute in the state of Santa Catarina, but the ruling applies to hundreds of similar situations throughout Brazil.

This was also good news for the climate. Brazil is home to 60 per cent of the Amazon rainforest, a key climate stabiliser due to the enormous amount of carbon it stores and the water it releases into the atmosphere. Most of Brazil’s roughly 800 Indigenous territories – more than 300 of which are yet to be officially demarcated – are in the Amazon region. And there are no better guardians of the rainforest than Indigenous peoples: when they fend off deforestation, they protect their livelihoods and ways of life. The best-preserved areas of the Amazon are those legally recognised and protected as Indigenous lands.

But there’s been a sting in the tale: politicians backed by the powerful agribusiness lobby have passed legislation to enshrine the Temporal Framework, blatantly ignoring the court ruling.

A tug of war

The positive Supreme Court ruling was by no means certain, and it only came after a long struggle. Hundreds of Indigenous mobilisations over several years called for the rejection of the Temporal Framework.

The ruling came in response to an extraordinary appeal by the National Foundation of Indigenous Peoples (FUNAI) against an agribusiness-backed attempt to deny the claims of the Xokleng Indigenous people of Santa Catarina.

Powerful agribusiness interests presented the Temporal Framework as the proper way of regulating article 231 of the constitution in a way that provides the legal security rural producers need to continue to operate. Article 231 recognises Indigenous peoples’ ‘social organisation, customs, languages, beliefs and traditions, and the original rights over the lands they traditionally occupy, with the Union being responsible for demarcating them, protecting and respecting all their property’.

Indigenous rights groups denounced the Temporal Framework as a clear attempt to make theft of Indigenous lands legal. Regional and international human rights mechanisms sided with them: the Inter-American Commission on Human Rights and the United Nations (UN) Special Rapporteur on the rights of Indigenous Peoples warned that the framework contradicted universal and Inter-American human rights standards.

In their 21 September decision, nine of the Supreme Court’s 11 members ruled the Temporal Framework to be unconstitutional. The two judges who backed it, Kassio Nunes Marques and André Mendonça, had been appointed by former far-right president Jair Bolsonaro, and Mendonça was also Bolsonaro’s justice minister. With a track record of agribusiness-friendly decisions, they were also the only two Supreme Court judges who refused to consider the 8 January 2023 attack on federal government headquarters by disgruntled Bolsonaro supporters as a coup attempt.

While the Supreme Court held its hearings and deliberations, political change took hold. Bolsonaro, in power from 2019 to 2022, had vowed ‘not to cede one centimetre more of land’ to Indigenous peoples. The process of land demarcation remained stalled for years, even though the paperwork was ready for dozens of Indigenous communities to receive land titles and protection from predatory incursions by miners, loggers and farmers.

But this has changed. In April 2023, President Lula signed decrees recognising six new Indigenous territories. Indigenous peoples were authorised to occupy the land and granted exclusive access to its resources and authority to expel invaders.

In announcing the six reserves, Lula said his government would demarcate as many Indigenous lands as possible – to realise Indigenous rights and to help fulfil Brazil’s climate commitments. He promised to approve all pending cases before the end of his term in 2026, a promise that goes hand in hand with the commitment to achieve zero deforestation by 2030. The recognition of two additional reserves in September came alongside news that deforestation in the Brazilian Amazon had fallen by 66 per cent in August compared to the same month in 2022.

Agribusiness fights back

But the agribusiness lobby didn’t simply accept its fate. The powerful ruralist congressional caucus introduced a bill to enshrine the Temporal Framework principle into law, which the Chamber of Deputies quickly passed on 30 May. The vote was accompanied by protests, with Indigenous groups blocking a major highway. They faced the police with their ceremonial bows and arrows and were dispersed with water cannon and teargas.

Soon after, the Senate made radical amendments to the bill on ministries sent by Lula, diluting the powers of the ministries of Indigenous peoples and the environment. Civil society took to the streets and social media to support the government’s environmental policies.

The Temporal Framework bill continued its course through Congress even after the Supreme Court’s decision. On 27 September, with 43 votes for and 21 against, the Senate approved it as a matter of ‘urgency’, rejecting the substance of the Supreme Court ruling and claiming that in issuing it the court had ‘usurped’ legislative powers.

The Articulation of Indigenous Peoples of Brazil’s (APIB) assessment is that, as well as upholding the Temporal Framework, the bill seeks to relax the no-contact policy towards voluntarily isolated Indigenous peoples and open the door to commodity production and infrastructure construction in Indigenous lands, among other serious violations of Indigenous rights. For these reasons, Indigenous groups call it the ‘Indigenous Genocide Bill’.

The struggle goes on

As the 20 October deadline for President Lula to either sign or veto the bill approached, a campaign led by Indigenous congresswoman Célia Xakriabá collected almost a million signatures backing her call for a total veto. Along with other civil society groups, APIB sent an urgent appeal to the UN requesting support to urge Lula to veto the bill.

On 19 October the Federal Public Prosecutor’s Office said Lula should veto the bill on the basis that it’s unconstitutional. On the same day, however, senior government sources stated that there wouldn’t be a total veto, but a ‘very large’ partial one. And indeed, the next day it was announced that Lula had partially vetoed the bill. According to a government spokesperson, all the clauses that constituted attacks on Indigenous rights and went against the Constitution were vetoed, while the ones that remained would serve to improve the land demarcation process, making it more transparent.

Even if the part of the bill that wasn’t vetoed doesn’t undermine the Supreme Court ruling, the issue is far from settled. The veto now needs to be analysed at a congressional session on a date yet to be determined. The powerful agribusiness lobby won’t back down easily. As reported by APIB, many politicians own land overlapping Indigenous territories, and many more had their campaigns funded by farmers who occupy Indigenous lands.

While further moves by the right-leaning Congress can’t be ruled out, the Supreme Court ruling also has some problems. The most blatant concerns the acknowledgment that there must be ‘fair compensation’ for non-Indigenous people occupying Indigenous lands they acquired ‘in good faith’ before the state considered them to be Indigenous territory. Indigenous groups contend that, while there might be a very small number of such cases, in a context of increasing violence against Indigenous communities, the compensation proposal would reward and further incentivise illegal invasions.

But beneath the surface of political squabbles, deeper changes are taking place that point to a movement that is growing stronger and better equipped to defend Indigenous peoples’ rights.

The 2022 census, the results of which were released in August 2023, showed a 90-per-cent increase, from 896,917 to 1.69 million, in the number of Brazilians identifying as Indigenous compared to the census 12 years before. There was no demographic boom behind these numbers – just longstanding work by the Indigenous movement to increase visibility and respect for Indigenous identities. People who’d long ignored and denied their heritage to protect themselves from racism are now reclaiming their Indigenous identities, sometimes even identifying as part of ethnic groups officially considered extinct. Not even the violent anti-Indigenous stance of the Bolsonaro administration could reverse this ongoing process.

Today the Brazilian Indigenous movement is stronger than ever. President Lula owes his election to positioning himself as an alternative to his anti-rights, climate-denying predecessor. He now has the opportunity to reaffirm his commitment to respecting Indigenous peoples’ human rights while tackling the climate crisis.