Demarcação de terras indígenas e o STF: uma análise para além do marco temporal de ocupação fixado na PET 3388/RR

Abstract

This paper aims to investigate how the Federal Supreme Court (STF) interpreted the provisions of article 231 of the 1988 Federal Constitution (CF/88), which guarantees Indians original rights over the land they traditionally occupy, as well as to identify which tools can be used to advance the decisions that have so far dealt with the matter. Initially, the research was based on understanding the issues that figured as reasons to decide in Petition 3388/RR, as a temporal landmark of occupation, reluctant fuss and the respective conditions. Since, in this decision, the STF defined that the demarcation of indigenous lands in Brazil would be based on those in which the Indians were occupying on October 5, 1988, the date on which the CF/88 was promulgated, it was concluded that this criterion did not meet the specific requirements of several cases that would later reach the Judiciary. The research methodology used was the bibliographic and documentary, aiming to improve the ideas by gathering information on the theme in focus and approaching them critically. It is pointed out that, in the judgment of Extraordinary Appeal 1.017.365/SC, in progress in the STF, the Brazilian Constitutional Court should seek to render a decision that is concerned with democratic legitimacy, especially when facing the exercise of constitutional jurisdiction in character against the majority, in view of the claim referring to the interests of indigenous minorities. To this end, it is suggested that, ten years after the establishment of the criticized thesis of the temporal framework of occupation, the STF should advance and seek the participation and influence, in the process of Extraordinary Appeal 1.017.365/SC, of the indigenous communities involved, as well as the decisions of the STF itself that have already evolved in the subject, such as ADI 3239 of traditional quilombola peoples, and also the decisions of the Inter-American Court of Human Rights, in dialogue with the semantics of the concept of indigenous collective property, which values immaterial, cultural and ancestral issues.