- Presented in February by Supreme Court Justice Gilmar Mendes, a draft bill violates Indigenous people’s constitutional rights by stripping their veto power against impactful activities on their ancestral lands and adding further obstacles to an already long land demarcation process.
- Critics say the Supreme Federal Court’s act is “unprecedented” in Brazil’s history by an institution that’s entitled to protect Indigenous and minorities’ rights — as dictated by the Constitution.
- The move comes months after the same court decided those Indigenous rights couldn’t be stripped by a legislative bill, with the support of Mendes.
- Critics say the bill “brings together the main threats to Indigenous peoples” and “directly contradicts the Brazilian Constitution, the decisions of the Supreme Court itself and international human rights law.”
Indigenous rights in Brazil have been at stake for decades: land invasions, increasing violence and congressional bills against territorial rights enshrined by the 1988 Federal Constitution. But now the latest threat has come from the Supreme Court through a draft bill to open up Indigenous territories to mining and other economic activities, an “unprecedented” move in Brazil’s history by an institution that’s entitled to protect the rights of minorities — and the Constitution, Indigenous rights’ advocates said.
“There is no similar precedent in the Supreme Court’s history,” said Maurício Guetta, deputy coordinator for policy and law at the Instituto Socioambiental (ISA), a nonprofit that advocates for Indigenous and environmental rights. “It’s not up to the Supreme Court to initiate bills on a subject like this.”
As set by the Federal Constitution, “the Supreme Federal Court [STF] is primarily responsible for guarding the Constitution,” including judging laws that violate it. Presented in February by Justice Gilmar Mendes, the draft bill violates Indigenous people’s constitutional rights by stripping their veto power against impactful activities in their ancestral lands, such as mining operations, hydroelectric power plants, and the construction of roads as well as adding further obstacles to an already long land demarcation process, advocates said.
Aiming to change article 231 of the Constitution, the draft bill “brings together the main threats to Indigenous peoples,” said Luis Ventura, executive secretary of the Missionary Council for Indigenous Peoples, an advocacy group affiliated with the Catholic Church.
The draft bill allows any citizen to access all information related to the demarcation process of Indigenous lands, except confidential personal data. It also sets compensation before “the eviction of the non-Indigenous owners” for the value of the bare land and improvements in case non-Indigenous uninterrupted possession is proven prior to Oct.5, 1988. In case of interrupted possession, non-Indigenous people will be paid partial compensation. If the non-Indigenous settler disagrees with the compensation, the person is guaranteed the right to remain on the land until they agree to compensatory measures.
Although the draft bill preserves the Indigenous peoples’ exclusive usufruct of their ancestral lands, it allows the federal government to carry out activities of “relevant public interest” when “there is no technical and locational alternative,” including infrastructure works for public transportation services, energy, telecommunications and the exploitation of strategic mineral resources, among others.
“What will the impact of this be? It will practically make the demarcation of Indigenous lands unfeasible because it will paralyze, it will freeze it by granting anyone who feels that they are against the demarcation of an Indigenous territory the possibility of participating from the very first moment of the studies,” Ventura told Mongabay in a phone interview. According to him, the bill also restricts the exclusive use of Indigenous peoples in their territories, a fundamental right set by article 231 of the Constitution.
Another threat, Ventura added, is the compensation guidelines set by the bill, which consider the possibility of non-Indigenous occupants to remain in possession of the territories — even if it’s a fully demarcated territory — until they receive the amounts they deem pertinent. “It’s a law that violates the fundamental rights of Indigenous peoples.”
The United Nations called it a setback. “It directly contradicts the Brazilian Constitution, the decisions of the Supreme Federal Court itself and international human rights law,” the U.N. special rapporteur on the human right to a clean environment, the U.N. special rapporteur on climate change and the U.N. special rapporteur on toxics and human rights said in a statement.
In an email, the Supreme Federal Court said it won’t comment.
Brazil is a signatory of the Convention 169, an international treaty adopted by the International Labour Organization (ILO) recognizing the right of Indigenous people to be consulted on projects affecting their lands, resources and way of life. Although Mendes’ draft bill didn’t exclude prior consultation for economic activities inside Indigenous lands, it’s ineffective without the Indigenous people’s veto power, critics said.
Guetta explained that, in Brazil, any person, including a Supreme Court justice, can individually send proposals to Congress, which can be taken up by a member of Parliament who wants to present a bill based on the proposed idea. “The difference is the political strength of each person.” It would be “quite unusual” and there is no record in the country’s history, Guetta added, of a bill “unilaterally” presented by a justice as an individual suggestion.
“It is up to the Supreme Court to judge actions that may be filed, for example, against laws passed by Congress. So it’s absolutely contradictory for the Supreme Court to present a bill to Congress that it may have to judge after the approval of a possible law,” Guetta said. “What would it look like for the Supreme Court to judge a project that it initiated itself?”
In this scenario, he said the STF’s function of judging the constitutionality of laws could be undermined, which would be “greatly absurd,” especially considering the rights of vulnerable minorities. “We’re not dealing with the rights of groups with political clout in Congress, who have economic power.”
Controversial aftermath
Mendes’ draft bill is the aftermath of another contentious process led by the STF, critics said. In September 2023, the STF voted against 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 when Brazil’s Constitution was enacted on Oct. 5, 1988, even if they could prove it was 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.
Right after the STF decision, the Congress passed a new law establishing the time frame thesis, regardless of the justices’ decision. The law was challenged in the Supreme Court once again.
In April 2024, justice Gilmar Mendes suspended the trial of all lawsuits related to the thesis and created a “conciliation chamber” amid “apparent conflict between possible interpretations” arising from the time frame trial, which could “generate a situation of serious legal uncertainty.”
When the STF voted against the time frame thesis in September 2023, some justices proposed a middle ground, such as permitting mineral exploration and agribusiness within Indigenous lands with prior approval from traditional peoples, which raised concerns from Indigenous rights groups. At the time, Dinamam Tuxá, a regional coordinator at the Articulation of Indigenous Peoples of Brazil labeled the court’s decision as “a partial victory.”
Led by Mendes, who owns a ranch in the Amazon and has been investigated for illegal deforestation and use of pesticides, the conciliation chamber has faced strong opposition from Indigenous representatives from the beginning. “We always expressed that the conciliation chamber was not an adequate, competent or legitimate instrument to talk about fundamental human rights,” Ventura said.
According to him, its maintenance for eight months had “a very serious impact on Indigenous territories” as it “paralyzed the government itself,” which was unable to continue with the administrative demarcation procedures. Violence related to land Indigenous peoples’ claims soared, he added, and even Indigenous territories demarcated by the federal government were nulled.
Another controversial point related to the bill is that it could be framed as “a violation of the principle of collegiality” for court decisions as “in thesis” it should have gone through the STF’s plenary, according to Guetta.
“I have serious doubts to whether the other justices of the court agree with this kind of atypical procedure, to say the least,” Guetta told Mongabay. “It’s obvious that all of this will have to be decided by the Supreme Court’s plenary, with the 11 justices. And then we’ll really have the Supreme Court’s position on this, if it’s going to submit a bill that has the potential to make the demarcation of new Indigenous lands unfeasible and to open up existing Indigenous lands to exploitation for economic activities.”
Amid all these controversies, the conciliation works were suspended for 30 days in late February. Indigenous rights groups call for its termination as soon as possible, urging the STF to declare unconstitutional the law 14.701/2023 and finalize the trial related to the time frame thesis.
“In 2024, the country experienced a moment of very serious legal uncertainty with regard to Indigenous rights because on one hand, you had a Supreme Court decision saying one thing; on the other hand, you had a congressional law in force, saying quite the opposite, and on the other hand, you had a conciliation commission that didn’t suspend the law,” Ventura said. “The final atmosphere was one of legal uncertainty and the first time this had happened in the 36 years of the 1988 Federal Constitution. For the first time, there was a law that meant that Article 231 was not fully in force.”
In September 2024, the Brazilian Confederation of Agriculture and Livestock (CNA) said the chamber of conciliation was a positive opportunity to show the rural producer’s vision in the debates. At the time, the CNA urged a consensus not only respecting the needs of Indigenous communities, but also the rural producers’ rights. “The farmer didn’t take anyone’s land. These lands were acquired, bought with titles. And showing this to the Supreme Court is very important,” CNA president Marcelo Bertoni said at the time.
For ISA’s Guetta, the conciliation chamber is “impertinent and unconstitutional” and has proved to be a total failure. “It is not up to the Supreme Court to negotiate the rights of any group, especially the Indigenous peoples,” the lawyer said. “The Supreme Court has a function that is very important in democracy, which is the counter-majoritarian function. This means that even if the majority of the population wants to do away with Indigenous rights, they are a permanent clause. And the Supreme Court has the function of protecting these rights of vulnerable minorities.”
The conciliation chamber will resume its work on March 26. He urges the population to be aware of how big the issues at stake are in relation to the environment and climate change. “When we’re dealing with Indigenous lands, we’re actually dealing with whether or not we can face the climate emergency. Indigenous lands represent an enormity in terms of carbon stock, in terms of protecting native vegetation, especially in the Amazon,” he said.
“It’s very important that people understand exactly what is at stake with the possibility of opening up Indigenous lands for economic exploitation, generating deforestation and emissions of gases that cause climate change.”
Banner image: Indigenous people rally against the time frame (marco temporal) law on March 13, 2025, in front of the Brazilian Supreme Court in Brasília. Image courtesy of Tiago Miotto/CIMI.
Communities fend off attacks as officials study Brazil’s anti-Indigenous land rights bill
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.
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