[Título em português: Direitos Constitucionais Indígenas como Limites ao Controle Dialógico de Constitucionalidade? Caso Marco Temporal II perante o Supremo Tribunal Federal]. In: At the Crossroads of Public Law: Equality, Climate Emergency, and Democracy in the Digital Era: XII Annual Conference of the International Society of Public Law (ICON-S), Brasília. New York: International Society of Public Law, 2025.

Abstract: Soon after celebrating a historic victory before the Supreme Court in the Marco Temporal I case (STF, RE No. 1.017.365, 2023), which held that the date of promulgation of the Constitution could not be used as the mandatory date for the demarcation of indigenous lands, Brazilian indigenous peoples have had to fight another legal battle. This time, the challenge is the supervening statute named the Law of Marco Temporal (Federal Law No. 14.701, 2023), which was approved through an expedited regime by the National Parliament, which ignores the prior decision of the Supreme Court, and which constitutes a textbook example of abusive legalism against indigenous minorities. Through an apparent contradictory behavior, the Justice Rapporteur in STF referred several constitutional actions against the new law to “an open, dialogic judicial model of dispute resolution, through the collaborative judicial governance” (STF, ADC No. 87, 2024), without ordering any interim measure of protection. The prognostic question under analysis is: Facing an explicit situation of abusive legalism, how will the Brazilian Supreme Court apply its own precedent from Marco Temporal I in Marco Temporal II against this new statute? A comparative framework may offer viable normative inputs, such as the Canadian dialogic constitutional model, which seems more protective of the country’s First Peoples, as it peremptorily excludes the indigenous fundamental rights and freedoms from the Notwithstanding Clause (Section 33, Canadian Charter, 1982).

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