A proteção constitucional da terra indígena e a tese do marco temporal: uma análise à luz da jurisprudência do STF

Abstract

Indigenous peoples have a relationship with the land that cannot be understood by the concept of patrimonial asset, since they do not attribute to it the connotation of private property, but of “habitat”. This finding reveals the premise that if traditional lands are not protected, all other indigenous rights will be threatened, including the right to ethnic identity and the very right to the future. In this sense, the Federal Constitution of 1988, in Articles 231 and 232, guarantees the Indigenous the original right over the lands they traditionally occupy, in addition to recognizing their social organization, customs, languages, beliefs and traditions. Such devices symbolize a paradigm shift: indigenous peoples are treated as holders of their own history and culture, contributing to the pluriethnic and multicultural formation of the Brazilian people. However, the social reality in Brazil demonstrates that such rights, especially territorial ones, still lack little concreteness. For these reasons, the present research project has as its general objective the understanding of the content, scope, characteristics and the legal regime referring to the constitutional protection of indigenous peoples, mainly regarding their territorial rights, with the aim of analyzing the jurisprudence of the Federal Supreme Court on the subject. With regard to methodology, the research adopts a qualitative approach, developed through the bibliographic procedure, contemplating review of legal literature, normative interpretation and judgment analysis