On Friday Brazil’s Supreme Court voted on a case which has been a Sword of Damocles hanging over the heads of Brazil’s indigenous peoples. The result was a 9 to 2 ruling against the concept of a ‘Marco Temporal’ – a date-based limit on indigenous claims to territories they occupied.

It has taken more than two tortuous years for the Supreme Court to throw out this patently absurd case, which had been rumbling through the lower courts for over ten years.

The case rested on the idea that only those lands which were physically occupied by indigenous communities on the date that the 1988 Constitution came into force would qualify for demarcation as Indigenous Territories (ITs). Even a superficial reading of the Constitution makes it quite clear that this was not the intention of the Constitution, nor was it feasible within the wording of the clauses relating to the rights of indigenous peoples. If this were to be upheld by the Supreme Court it would have prevented the demarcation of any further ITs and would have put many existing ITs at risk.

In Brazil justice flows very slowly, and sometimes throws up confusing results. But this time reason prevailed, bringing huge relief – and a lot of partying – in indigenous territories throughout the country.

Brazil’s Indigenous Peoples owe much of this victory of reason over greed to actions taken 35 years ago, when Brazil’s post-dictatorship 1988 Constitution was drafted. The political climate at the time was sympathetic to the recognition of indigenous rights, and indigenous activists of the time were invited to input their ideas to the Constitutional Commission. Foremost among the indigenous negotiators was Bep’kororoti Payakan, known as Paulinho by the non-indigenous. Sadly, he was a victim of Covid. He was highly intelligent and spoke good Portuguese – very rare at the time. He was very actively involved, with the powerful support of Chief Raoni Metuktire, in negotiating the exact terms of the 1988 Constitution, as part of a coherent indigenous effort to have their rights enshrined in the Constitution. Their success in that process established the essential foundations on which this case was decided, so we owe them a huge debt of gratitude for their work. They must not be forgotten.