Triumph and Turmoil: The Xokleng Case and the Future of Indigenous Land Rights in Brazil
By: Kiya Amos-Flom: Staff Editor
In 2021, over 6,000 indigenous people mobilized in Brasília to support indigenous land rights, particularly regarding the Xokleng case. The case was finally decided in their favor in September 2023.
Brazil’s Supreme Court (Supremo Tribunal Federal, or “STF”) recently issued a landmark ruling directly in favor of the Xokleng people of Santa Catarina state, rejecting the state government’s argument of a marco temporal (time limit). With 9 out of 11 justices in the majority, the decision represents a strong starting point for a promising future of indigenous rights in Brazil. Yet with a legislative bill that would restrict these land rights processing through the National Congress at the same time, said future remains uncertain.
Brazil’s indigenous people have continuously fought for their rights since the Portuguese colonization era over 500 years ago. Continuing into the modern era, they have primarily engaged in legal fights for recognition, protection, and autonomy over the land. This struggle undoubtedly affects a large group of people directly—with a recent count of 1.69 million indigenous people in Brazil’s 2022 census. Moreover, as indigenous land rights are also directly connected to the preservation of the Amazon rainforest, recognition of indigenous people within Brazil’s borders affects the world as a whole.
Modern indigenous legal rights in Brazil can be traced back to the incorporation of indigenous people into Article 231 of the 1988 Constitution. Notably, the Constitution grants indigenous peoples the right to land, prohibits eviction, and restricts mining without authorization from the federal government. Brazil is also subject to several international treaties covering indigenous rights, such as the United Nations Declaration on the Rights of Indigenous Peoples (2007), the American Declaration on the Rights of Indigenous Peoples (2016), and International Labour Organization Convention 169. However, legal protections have not always protected land rights in actuality. For example, the Bolsonaro regime opened new legal pathways for private landowners to reach previously protected land, which in turn tripled illegal invasions that stripped natural resources. With legal structures capable of both protecting indigenous claims to land and stripping them away, the Brazilian government’s legal arms have always been crucial to indigenous activists.
The Xokleng people’s land dispute case, formally known as RE 1017365 within the Brazilian Supreme Federal Court (Supremo Tribunal Federal, or “STF”) system, emerged as another high-stakes legal fight for indigenous people throughout Brazil. The case began in 2009 when the state of Santa Catarina evicted the Xokleng from a portion of the Ibirama La-Klãnõ lands, in which they currently reside alongside two other indigenous groups. Following several appeals, the case eventually made it to the STF, which declared in 2019 it would have “general repercussion” status, meaning the decision will serve as a precedent for all cases involving Indigenous peoples. Finally, in September 2023, the STF rejected Santa Catarina state’s marco temporal (“time limit”) argument, which would have required Indigenous people to prove they occupied or legally contested the territory they claimed before the Brazilian Constitution came into force in 1988. If successful, this argument would have led to disastrous repercussions, as many indigenous peoples had been forcibly removed or are traditionally nomadic.
The effects of the Xokleng decision are monumental, particularly due to its nature as the new standard of review for all similar cases brought by indigenous peoples. It will also affect ongoing anti-indigenous legislative bills, such as Bill 490, which would limit the establishment of new indigenous reservations. While left-leaning President Luiz Inacio Lula da Silva (“Lula”) is likely to veto this specific bill now that it has passed both chambers of the National Congress, there are several more that the farming lobby is advocating for, including a constitutional amendment that would include the 1988 time limit directly in the text of the Constitution. This particular bill is so concerning that the Office of the High Commissioner for Human Rights (OHCHR) commented on its implications.
With the three branches of government at odds on the matter, the Brazilian legal landscape is filled with obstacles and opportunities for indigenous activists. RE 1017365 will likely immediately impact the 490 existing indigenous land claims. Lula has also laid some groundwork for new demarcation of indigenous territories by creating Brazil’s first Ministry of Indigenous Peoples, led by indigenous woman Sonia Guajajara. However, in their press release following the decision, the OHCHR cautioned that demarcation is not enough, and that an “active, systemic policy to protect Indigenous Peoples from violence” is necessary. With support from the Brazilian Supreme Court and the international community, indigenous activists in Brazil remain cautiously optimistic about further legal reforms—and fiercely passionate about protecting their land rights.
Kiya Amos-Flom is a second-year student at Columbia Law School and a staff member of the Columbia Journal of Transnational Law. She graduated from the University of Toronto in 2021.