A tese do marco temporal e a violação do direito territorial indígena: discussão jurídica das decisões em ações possessórias no âmbito do TRF1

Abstract

The general objective of this paper was to analyze the extent to which the temporal framework thesis violates the territorial right of permanence of indigenous peoples, considering the jurisprudence of the Federal Regional Court of the 1st Region, in possessory claims, between 2009 and 2020. The work is based on the study of indigenous territorial rights, based on Brazilian legislation and international understandings, aiming to understand what the right of permanence, provided for in art. 231, §5, CF. In continuity, the dissertation analyzes the thesis of the time frame as a precedent established in the judgment of Petition 3.388, known as Raposa Serra do Sol Case, and going through the judgments carried out by the STF involving the thesis, until the current discussion, with the case of the Xokleng people. Finally, the jurisprudence of the Federal Regional Court, in possessory actions, during the period 2009-2020, is investigated, aiming to identify how the time frame thesis is applied to violate the territorial right of permanence of indigenous peoples. Thus, from a qualitative-quantitative approach, through literature and document review, as well as an empirical study of TRF1 jurisprudence, it was concluded that the Federal Court does not use the time frame as an argument to determine the removal of indigenous peoples. in possessory actions. As conclusions, it was found the temporal framework thesis is not used by TRF1 as a justification for determing the repossession in disfavor of indigenous people. However, the result obtained from the analysis of jurisprudence indicate the attachment of de Federal Court to a civilist perspective, to the detriment of indigenous constitucional possession.