Democracy Denied, Demarcation Deferred: On the Political and Environmental Perils of the Marco Temporal
By Tracy Devine Guzmán*
Indigenous peoples in Brazil comprise 0.83% of the overall national population and inhabit officially designated Indigenous Lands (ILs) encompassing 13.9% of the country’s national territory. The discrepancy between this relatively small number of people—1,694,836, according to the 2022 Census—and a massive land area, has been the root of political disputes and related social and environmental violence across the country for decades. Since before the institution of the national Constitution in 1988, anti-Indigenous officials and discourses have pitted Indigenous well-being against that of the nation by invoking an amorphous assemblage of economic, political, social, and national security interests to which Native peoples and their rights present a purported threat. In 2025, the most urgent version of this discourse is the marco temporal, or so-called “timeframe thesis”—a law Brazil’s Supreme Court deemed unconstitutional in September 2023, only to be reinstituted three months later by a Congressional majority large enough to override President Lula’s veto. This article argues that despite significant backing for the legislation by the general Brazilian populace, the marco temporal presents great peril not only to the lives and livelihoods of Indigenous Peoples, but also to the integrity of Brazil’s democracy and the environmental future of the country, the region, and the world.
While limited Indigenous land rights appeared in the Brazilian Constitutions of 1934 and 1967, they took on their current form as “original rights” following the 1987 post-dictatorship Constitutional Assembly, during which Indigenous scholars and activists played a key role in shaping their own legal existence. The 1988 Constitution established Indigenous peoples’ rights over the lands that they “traditionally occupy,” as well as the Union’s responsibility “to demarcate [those] lands, protect them, and ensure respect for all [Indigenous Peoples’] property [thereon]." It specified further that Indigenous lands are “inalienable” and “nontransferable,” and that Indigenous rights over those lands are “imprescriptible.” Finally, Article 67 of the Transitional Constitutional Provisions Act established that the Union should “complete the demarcation of Indigenous Lands within five years of the Constitution’s promulgation”—an obligation that was not fulfilled, and instead, has been met with mounting opposition and hostility.
In contradiction to the language of the Constitution, the marco temporal maintains that Indigenous Peoples have no right to lands other than those they occupied, or to which they documented a legal claim, as of October 5, 1988—the day the Constitution was promulgated. As many legal scholars have established, however, these conditions are problematic because they ignore many important factors. First, many Indigenous Communities were removed from their lands prior to 1988, particularly as a result of the modernization and infrastructure campaigns of the 1964-85 dictatorship. Second, Indigenous Peoples were not empowered to represent themselves in court prior to 1988 because of their legal status as “tutees” of the state [tutelados do estado]. Third, Indigenous Peoples living in voluntary isolation often have little or no contact with Brazil’s judicial system and therefore lack documentation to substantiate land claims formally. Compounding these circumstances is the fact that even legally established boundaries of Indigenous Lands are in many cases disputed or unguarded, leaving them vulnerable to takeover through both brute force and elaborate criminal ventures. The marco temporal thus creates a impossible legal situation for Indigenous Peoples, undermining their ability to assert legitimate occupation or permanent possession of traditional lands, and weakening their capacity to navigate the long and labyrinthine legal processes necessary to demarcate those lands officially. Moreover, it is well documented that formally demarcated status is a necessary but insufficient condition to protect Indigenous Lands from violent intrusion or unlawful usurpation by entities representing extractive or neocolonial interests, such as artisanal mining, cattle ranching, and soybean farming.
In August 2024, the legal impasse over the designation and demarcation of Indigenous Lands led Supreme Court Justice Gilmar Mendes to convene a “conciliation commission” of interested parties to consider a negotiated outcome through which specified concessions to key extractive interests might be exchanged for tabling the marco temporal altogether. Indigenous leaders from civil society balked at the proposal, arguing that their constitutional rights were not negotiable, and accusing the state’s key Indigenous representatives—Minister of Indigenous Affairs, Sonia Guajajara, and President of the FUNAI, Joenia Wapichana—of maintaining an uncomfortable silence that failed to uphold the movement’s broader interests. In light of these ongoing challenges to constitutionality and democratic governance, the marco temporal legal conundrum has thus created new rifts within Brazil’s delicate Indigenous movement while placing the country’s constitutional rule and ecological outlook in jeopardy. These issues now coalesce around programming for the upcoming COP30, to be held in the Amazonian state of Pará. Indigenous Peoples have lobbied to play a central role as co-leaders of the event, underscoring their protagonism with the notion that “a resposta somos nós” (the answer is us).
Indigenous land use, of course, has never been a monolith. Researchers have probed the conservationist commitments of Native communities for decades, often calling into question the extractivist practices operated or facilitated by Indigenous peoples on their own lands, whether sustainably and with legal permissions, or otherwise. Complicating this scenario further, and much to the dismay of Indigenous leaders, communities, and advocates, Justice Gilmar Mendes’s fraught “conciliation” enterprise includes proposals to authorize some of the most environmentally devastating forms of extractivism, reviving contentious legislative proposals once championed by Presidents Michel Temer and Jair Bolsonaro, who sought and ultimately failed to open Indigenous Lands legally to mining and hydrocarbon exploration. Opponents of those efforts, past and present, are backed by a diverse community of Indigenous, national, and international scientists who provide abundant evidence that Indigenous Peoples are overwhelmingly responsible custodians of their lands, also taking into account the complex sociopolitical and cultural contexts in which diverse forms of extractivism take place.
This ample body of work corroborates the 2020 finding by Wayne Walker and eighteen international scholars that Indigenous peoples play a crucial role in international Amazonian conservation, as their protected lands suffer significantly less deforestation and degradation than non-Indigenous areas. For example, the MapBiomas project found that between 1985 and 2023, Indigenous Lands nationwide lost less than 1% of forested areas while privately owned lands lost nearly 28% over the same period. Satellite data indicate that Brazilian Indigenous Peoples integrating Indigenous and non-Indigenous science to protect their lands present a substantive impediment to rainforest destruction while bolstering carbon storage and protecting biodiversity, thus mitigating climate change. A 2025 community-based study of forest loss in southwestern Amazonia by a group of Indigenous and non-Indigenous researchers found a correlations between low levels of deforestation and the presence of traditional governance and leadership structures; Native languages and schooling; and land-based economies inclusive of more-than-human beings.
With more surface freshwater than any other country in the region (or the world), Brazil is also critically poised to safeguard fragile rivers, springs, and aquifers, many of which reside in or pass through Indigenous areas, and have been compromised by massive overfishing, catastrophic mining contamination, or the disastrous impacts of hydropower. While the marco temporal does not address water systems directly, both the legislation and Mendes’ conciliation proposal have potential to impact Indigenous stewardship of freshwater resources and create a devastating impact on river-dependent communities who recognize waters as sacred beings and living ancestors rather than an expendable resource. As Ailton Krenak explained his community’s decision to remain in their homes after a consortium of mining interests killed the Doce River in 2015 with tons of toxic sludge from a failed tailings dam in Mariana (Minas Gerais): “The river is an extension of our family. We’re going to stay here to watch over it.” Krenak’s simple observation highlights the fundamental incommensurability between traditional Indigenous engagements with the natural world that we “people of the ecology” (Davi Kopenawa’s term) have come to call “the environment,” and the expedient commodification of that world by proponents of rapacious extractivism whose primordial, tragic aim is to make it more “useful.”
The ongoing debates over the marco temporal and the conciliation proposal that preserves its most anti-Indigenous facets in new packaging have thus become a metonym for the state of democratic rule and environmentalism in Brazil, both of which will continue to be tested during the governance of a comparatively progressive but hamstrung Lula administration, and a deeply anti-Indigenous National Congress. Trusting 0.83% of the population to save democracy and the planet is a big ask for a national society that has often proven antagonistic or indifferent to Indigenous interests. But perhaps non-Indigenous peoples in Brazil (and beyond) will come to recognize that supporting Native land rights is not a zero-sum proposition that comes only at their expense, but rather, an informed, patient investment in a shared political and ecological future. Demarcation is not only a legal obligation but also an essential climate strategy—one that demands constitutional fidelity and sustained ecopolitical will.
*Tracy Devine Guzmán is associate professor of Latin American Studies at the University of Miami.
This article was written for issue 167 of the WBO newsletter, dated May 23, 2025. To subscribe and receive free weekly news and analysis like this, simply enter your email in the field provided.
