INDIGENOUS PEOPLES, LAND DEMARCATION AND THE TEMPORAL FRAMEWORK FROM A CONSTITUTIONAL PERSPECTIVE

Abstract

The 1988 Constitution of the Federative Republic of Brazil represented a significant advance in the protection of indigenous peoples' rights by recognizing their original rights to the lands they traditionally occupy and ensuring the preservation of their cultures, identities, and ways of life. In this context, the debate regarding the demarcation of indigenous lands has gained prominence in the national legal and political scenario, especially in relation to the so-called temporal framework thesis, according to which only lands occupied by indigenous peoples at the time of the promulgation of the 1988 Constitution would be recognized as indigenous territories. This study aims to analyze, from a constitutional perspective, the territorial rights of indigenous peoples, the procedure for the demarcation of indigenous lands in Brazil, and the legal, social, and cultural impacts arising from the temporal framework thesis. The methodology adopted is based on bibliographic and documentary review, including the analysis of the Federal Constitution, infra-constitutional legislation, and case law of the Supreme Federal Court, particularly the judgment of Extraordinary Appeal No. 1.017.365/SC, as well as doctrinal works and scientific articles available in academic databases such as Google Scholar and SciELO. The research indicates that the temporal framework thesis conflicts with the original rights constitutionally guaranteed to indigenous peoples, as it disregards historical processes of expulsion, violence, and forced displacement experienced by these communities. It is concluded that constitutional interpretation must prioritize the protection of fundamental rights, human dignity, and ethnic-cultural pluralism, ensuring the effectiveness of indigenous territorial protection as an essential element for the preservation of Brazil's sociocultural diversity.