The Supreme Federal Court (Stf) declared unconstitutional, by a 9-1 vote, the temporal framework for indigenous land demarcation on Thursday (18), invalidating the thesis that indigenous peoples only have rights to areas occupied until 1988. The ruling, reported by Minister Gilmar Mendes, reinforces the protection of fundamental rights and sets deadlines for completing pending processes. The judgment responds to a law passed by Congress in reaction to a 2023 precedent.
The Supreme Federal Court (Stf) concluded on Thursday (December 18, 2025) the trial that once again overturned the temporal framework for indigenous land demarcation, with a 9-1 score. The rapporteur, Minister Gilmar Mendes, voted to invalidate the thesis limiting indigenous rights to territories occupied or disputed on October 5, 1988, the date of the Federal Constitution's promulgation. He argued that the norm is disproportionate, imposes impossible proof for communities without formal documentation, and does not ensure legal security by applying it retroactively.
The sole dissenting vote came from Minister André Mendonça, who followed Mendes for the most part but defended maintaining the temporal criterion for recognizing the traditional occupation, considering 1988 as an irreplaceable reference. The other ministers, including Luiz Fux, Alexandre de Moraes, Flávio Dino, Cristiano Zanin, Dias Toffoli, and Kassio Nunes Marques (with reservations), followed the rapporteur. Edson Fachin and Cármen Lúcia diverged on points like indemnities and relocations of peoples, emphasizing that indigenous lands are priority due to cultural ties.
This is the second time the Stf has rejected the temporal framework: in September 2023, it declared it unconstitutional by 9-2, under Fachin's rapporteurship. In reaction, Congress passed a law instituting the thesis, judicially challenged, and the Senate approved a constitutional amendment proposal, still pending in the Chamber. Indigenous entities criticize the measure for ignoring nomadic peoples and historical expulsions, while agribusiness defends limits on demarcation expansion and security for owners.
The decision has general repercussion and sets a 180-day deadline for the Union to complete pending processes. Mendes validated economic activities on indigenous lands, such as tourism, as long as they benefit the community and preserve possession, allowing contracts with non-indigenous under self-determination. Flávio Dino suggested sending a bill proposal to Congress based on a special Stf commission. Fachin highlighted the court's counter-majoritarian role in protecting vulnerable minorities: “This Supreme acted in the legitimate field of its counter-majoritarian function, in the concretization of the best exegesis regarding the protection of fundamental rights of a minority, in this case, indigenous peoples, historically vulnerable.”
