Os limites da tese do marco temporal no direito dos povos indígenas

Abstract

This monograph intends to analyze the limitations of the time frame thesis on the rights of indigenous peoples in Brazil, considering the questions of how the rights of these peoples are treated by the Federal Constitution, as well as by infraconstitutional laws and international regulations, such as the Declaration of Nations units on the rights of indigenous peoples. The temporal framework is a legal thesis in which indigenous peoples have the right to occupy only the lands they occupied or were already disputing on October 5, 1988, the date of promulgation of the Constitution, whose discussion began in 2009, based on an opinion of the Attorney General's Office on the demarcation of the Raposa-Serra do Sol reserve, in Roraima, when this criterion was used, and amid disagreements, the temporal framework law was approved at the end of 2023, but is still under analysis by the STF through a conciliation process between the actors involved. This work was prepared using the bibliographic research method, with the consultation of books, scientific articles, monographs, procedural documents and case law, and the deductive reasoning method used. The theme was chosen due to the importance of the implications of the temporal framework thesis for indigenous peoples, considering that it can interfere in the social development of this population, as well as the relevance of the divergent points regarding its constitutionality. Thus, it is observed that the issue of establishing the temporal framework encompasses complex aspects, and despite the approval of the law, its effects have increased conflicts and the issue of judicialization of the demarcation of indigenous lands in the country, involving a series of legal, social and cultural implications. Therefore, it is concluded that a broad discussion is necessary between all actors involved, better analysis of studies on the indigenous territorial issue, evaluation of public policies, in order to seek fair measures that meet the demands of those who occupy indigenous lands and those who have historical and constitutionally supported law, and by national and international legal norms.