Attacking the territorial rights of indigenous peoples is taking a step closer to the end of the world. It seems alarming at first glance, but it is a catastrophic scenario that is approaching, according to reports from the United Nations Intergovernmental Panel on Climate Change. Indigenous lands, which are the largest areas of climate security in Brazil, face a legal theory known as the “temporal framework,” which holds that Indigenous peoples only have the right to constitutionally guaranteed territories if they had settled there on the date of the promulgation of the Federal Constitution of 1988. This thesis is trying to be incorporated into the Brazilian legal system by the three branches of government.
In the executive branch, Opinion 001/2017, made the application of “framework” mandatory throughout the federal public administration. In the legislative branch, Law 14.701/23 is trying to enshrine the “temporal framework” in established law. In the judiciary, through the judgment of the case of Extraordinary Appeal 1,017,365, which had its effect extended to all similar cases through the recognition of its general repercussion, and which refuted the thesis of the temporal framework, in favor of Indigenous territorial rights; and more recently through the reopened discussion in the joint judgment of Direct Action of Unconstitutionality (ADI) 7582, 7583, 7586, Declaratory Action of Constitutionality (ADC) 87, and Direct Action of Unconstitutionality by Omission (ADO) 86.
Opinion 001/2017 has not yet been revoked and remains in force. Law 14,701/23 was created by Bill 2,903/23, approved in September 2023 by the National Congress. The judgment on general repercussions in the Brazilian Supreme Court, which was also issued in September, made the thesis of the temporal framework unconstitutional, and therefore incompatible with the Brazilian legal system. In October, President Lula vetoed the thesis of the Temporal Framework in Bill 2.903/23, regarding the Federal Constitution of 1988 and its interpretation by the Supreme Court. In December 2023, the National Congress overturned the presidential veto, insisting on making legal what had already been declared unconstitutional.
The temporal framework thesis is an aberration that has very little legal basis. Carolina Santana demonstrates in her doctoral research how the temporal framework is yet another link in a chain of arguments designed to diminish indigenous rights. Its objective is to establish an arbitrary timeframe in which an Indigenous people should be on their lands to be entitled to them, establishing the date of October 5, 1988, the same date as the promulgation of the current Brazilian Federal Constitution. In her dissertation, Santana analyzed the proceedings of the National Constituent Assembly of 1987-88, interviewed Supreme Court justices and delegated, and reviewed judicial cases involving the annulment of land demarcations. When cross-referencing the data, it becomes clear that the thesis of the temporal framework did not reflect the will of the Constituent Assembly members.
As Indigenous peoples are guardians of the forests and, therefore, of the climate, this means legal uncertainty that will end a constitutionally guaranteed right for hundreds of Indigenous lands that will have direct effects on the climate crisis. Although the temporal framework thesis is unconstitutional in its proposal, since Art. 231 of the Federal Constitution determines that indigenous territorial rights are original and therefore existed even before the formation of the Brazilian State, it has been used in many judicial cases to request and explains the annulment of court cases about the demarcation of Indigenous lands.
Because this thesis puts the human rights of Indigenous peoples and property rights in dispute — whether legally acquired or defrauded through land grabbing — there have been court decisions that have support it and others that have refuted it. For this reason, the Brazilian Supreme Court took up a specific case, whose ruling was extended to all similar cases. This is Extraordinary Appeal 1,017,365/SC, in which there is a conflict between the Xokleng Indigenous people of the Ibirama-Laklãnõ Indigenous Land and a public foundation in the state of Santa Catarina. In September 2023, this judgment was concluded refuting the temporal framework thesis and affirming the constitutional rights of Indigenous peoples. The debate was reopened, when it should not have been, due to the joint judgment of ADIs 7582, 7583, 7586, ADC 87 and ADO 86.
Indigenous lands and Conservation Units are the main pockets of climate security that we have in the world. Defining the unconstitutionality of the temporal framework is necessary not only out of respect for Brazilian constitutionalism and the constituent will of the National Constituent Assembly of 1987-88, but also for humanitarian reasons. In ruling on RE 1.017.365, the Brazilian Supreme Court has ruled on the largest climate dispute on the planet, considering the impact it will have on the demarcation of Indigenous lands. The Brazilian Constitutional Court had in its hands the case that will define not only respect for the fundamental rights of Indigenous peoples protected by the constituent will, but also whether we are one step away from holding up the sky a little longer, as Davi Yanomami says, or approaching the end of the world as we know it. Our generation is witnessing the effects of the climate crisis, as we see year after year in the forest fires in California, the heat waves in Europe, or the drought of the Amazon rivers. It is now once again up to the Brazilian Supreme Court to assert its constitutional authority and decide whether we are closer to climate collapse or whether Brazil will continue to play its global leadership role in socio-environmental protection.
*Lucas Cravo holds a PhD in Law from the University of Brasília. He is currently a visiting scholar at New York University, as a fellow of the Fulbright Commission Brazil Doctoral Dissertation Research Award program. He holds a master’s degree in law from the University of Brasília with a period of technical visit at Flinders University, as a fellow of the CAPES Academic Excellence Program. He holds a degree in Law from the Fluminense Federal University, with a period of academic mobility at the University of Coimbra. He is a partner at Cravo & Santana – Advocacia, a public interest law firm that works in defense of socio-environmental rights.
This article was written by Lucas for issue 160 of the WBO newsletter, dated April 4, 2025. The Brazil Office Alliance is a specialized network dedicated to reflecting on Brazil and supporting actions that strengthen the role of civil society and institutions committed to promoting and defending democracy, human rights, freedoms, and sustainable socio-economic and environmental development in the country. The WBO acts independently and in a non-partisan manner, respecting diversity, human dignity, inclusive dialogue, and with a commitment to evidence-based ideas, activities and policies.