Terras indígenas e a tese do marco temporal: uma análise sócio-jurídica acerca do julgamento do RE 1017365/SC pelo Supremo Tribunal Federal

Abstract

The present work is justified by the importance of the issue of indigenous people's rights to the lands they traditionally occupy and by the RE 1017365/SC trial by the Supreme Federal Court (STF), in which the general repercussion of this constitutional issue was recognized. Its research problem is the question of which thesis should prevail in the process of recognition and realization of indigenous territorial rights: the original rights thesis (indigenato) or the temporal march of occupation thesis (indigenous fact). The objective, therefore, is to contextualize the factors intrinsic to this fundamental discussion and, in a descriptive and critical analysis of the RE 1017365/SC trial, to give an opinion on what would be the best interpretation of the Constitution for that case and, considering the binding effect of the decision, for the rights of traditional peoples to indigenous lands. To achieve it, it was sought to make an anthropological contextualization on the subject, an analysis of the historical and current normative conjecture concerning the theme, a complete report on the judicialization of the litigation involving the Xokleng People and, finally, a critical analysis of the opposing theses, clarifying the reasons why one should be used and why the other should be rejected. Therefore, it was concluded that the best interpretation of art. 231 of the Constitution, in line with the vote of the Rapporteur of RE 1017365/STF, Minister Edson Fachin, is the reaffirmation of the original rights of indigenous peoples to indigenous lands.