A (in) constitucionalidade da tese do marco temporal das terras indígenas: da segurança jurídica à interpretação constitucional

Abstract

The Federal Constitution of 1988 gave a series of rights to native peoples, with emphasis on the right to the lands they traditionally occupied. This expression, however, has given rise to divergences concerning its adequate interpretation. This is because, on the one hand, an objective-temporal exegesis is sustained, limiting the scope of the right to lands that were occupied on the date of the promulgation of the Constitution, for reasons of juridical security - the so-called temporal milestone. On the other hand, it is argued that the adequate hermeneutics of the expression would dispense with this aspect of temporality. Thus, with this discussion as a guide, the present study aims to unveil the limits and possibilities of the temporal milestone of indigenous lands thesis in the light of the constitutional text of 1988. For this purpose, three chapters are developed, each with two subchapters. The first chapter sets out the main historical overviews of native peoples, demonstrating that they have gone through systematic episodes of violence and forced displacement from their territories, in addition to presenting the evolution of Brazilian constitutionalism with respect to the protection of indigenous rights. Next, the second chapter aims to analyze the origin of the temporal milestone in jurisprudence, which occurred with the Raposa Serra do Sol case (Pet. 3.388/RR), judged by the STF in 2009. Finally, the last chapter turns to the analysis of the central issue of the work, based on the confrontation of different perspectives on the matter, using as paradigm the votes cast during the judgment of RE n° 1.017.365/SC, in which the Federal Supreme Court was asked to revisit the matter. Thus, the three already rendered votes are analyzed, making the pertinent observations and counterpoints. To this end, the dialectical approach is used, since the object of the research is examined from the confrontation between the positions on the appropriateness of the thesis of the temporal limitation. Furthermore, the method of historical procedure is used to analyze the historicity of the native peoples in Brazil, as well as the method of monographic procedure, adopting the case study of the decision in which the thesis of the temporal milestone was accepted. Also used the indirect documentation research technique by means of bibliographical research.The conclusion is that the temporal milestone thesis is unconstitutional. Firstly, because, since indigenous rights are fundamental rights, any restriction should find its basis in the constitutional text itself, which is not the case. Furthermore, the arguments used for the defense of the thesis generally represent false dichotomies. Thus, the proper hermeneutic of the constitutional provision demands the observance of the principle of maximum effectiveness of constitutional rules, the prohibition of retrogression and the prohibition of deficient protection, in order to fulfill the objectives of the Constitution. However, it is advocated that the abolition of the temporal milestone be concomitant with the possibility of compensation, in certain cases, to possessors of good faith, in view of the imposition of liability to the Union, for leniency in proceeding with the demarcation of the land, thus reconciling the interests in dispute, without sacrificing inordinately any of these.