Supreme Court forms majority against cutoff for Indigenous land claims

The majority was secured with the vote of Justice Alexandre de Moraes, who sided with the rapporteur, Justice Gilmar Mendes. He was also joined, with some specific reservations, by justices Flávio Dino, Cristiano Zanin, Luiz Fux and Dias Toffoli. Still to vote are Justices Cármen Lúcia, Kassio Nunes Marques, André Mendonça and Edson Fachin.

The case is being heard in the court’s virtual plenary and is scheduled to conclude at 11:59 p.m. on Thursday (18). Justices may still change their votes, request that the case be moved to an in-person session, or ask for more time to review the matter.

Casting the final vote so far, Moraes reiterated the position he took in the 2023 ruling, when he was one of nine justices who voted to overturn the time-limit doctrine. At the time, he said the date of the Constitution’s enactment should be seen as an “x-ray plate” of territorial occupation to strike a balance between the rights of Indigenous peoples and private property.

Moraes also agreed with Mendes’s argument that Congress cannot enact legislation contrary to the Supreme Court’s interpretation, but only regulate demarcation procedures. Like Dino, Moraes said this understanding could not be changed even through the approval of a proposed constitutional amendment (PEC).

“The fundamental nature of the right at issue, which elevates the matter to the status of an entrenchment clause, part of the Constitution’s rigid and immutable core, would prevent any attempt to alter this understanding through a constitutional amendment, since adopting the time limit would amount to distorting Article 231 of the Constitution and violating the principle prohibiting social regression,” Moraes said.

The ruling comes after the Senate last week approved a PEC seeking to reinstate the so-called temporal doctrine. The proposal had been shelved pending a decision by the Supreme Court, but was rushed through as a reaction to a decision by Justice Mendes that tightened rules for the impeachment of Supreme Court justices. The amendment still needs to be approved by the Chamber of Deputies, which is not expected to happen this year.

Toffoli also sided with the court’s most senior justice, but added reservations to ensure that good-faith improvements made by non-Indigenous occupants can be compensated until the demarcation process is concluded. He also said existing rules governing the role of anthropologists, experts, and other specialists in demarcation proceedings are sufficient.

In addition, he voted to reject compensation claims based on administrative documents without valid legal titles and, regarding state omission, stressed that conciliation is possible at any stage of the dispute and that review is part of the demarcation process.

Mendes’s vote opened the trial on Monday (15). He said the time-limit doctrine represents “a situation that is difficult to prove for Indigenous communities that were historically dehumanized through state or private practices of forced removal, killings and persecution.”

He also acknowledged a historical failure by the Brazilian state to conclude demarcation processes and set a 10-year deadline for the federal government to complete pending procedures.

Mendes further voted to allow Indigenous territories to be used for economic purposes, provided that the benefits accrue to the entire community and land possession is preserved.

Finally, he found unconstitutional the ban on expanding the boundaries of already demarcated Indigenous lands, arguing that the Constitution guarantees the correction of administrative acts with “serious and irremediable” errors.

In 2023, the Supreme Court struck down the time-limit doctrine by a 9-2 vote. In response, Congress passed a bill validating the doctrine. As a result, different parties and organizations took the matter to the Supreme Court, some seeking to uphold the law and others calling for it to be overturned.

The cases were assigned to Mendes, who set up a conciliation panel among the parties to seek consensus. In June 2025, the commission presented an agreement signed by the federal government, Congress, Indigenous peoples, and farmers, after 23 hearings held by the group.