Time frame (marco temporal) as a threat to Indigenous and Quilombola Territorial Rights in Brazil

Abstract

Indigenous and quilombolas territorial rights are enshrined in the Brazilian Constitution. The Federal Supreme Court, in the Raposa Serra do Sol case (2008), set the date of the promulgation of the Constitution (October 5, 1988) to verify land ownership by indigenous peoples for purposes of demarcation and land titling. This condition called time frame (“marco temporal”) was used in other decisions. The consequences of this decision directly affect the demarcation and titling processes that are currently in progress. There is a threat of a trial in the Xokleng people's case that will result in general repercussion (2021). For the rights of quilombolas, the deadline criterion was exceeded in the judgement of the Direct Action of Unconstitutionality (ADI) n. 3239 (2018). This article used the deductive and comparative method, aiming at a theoretical deconstruction of the "marco temporal”, based on the assumption that original rights are related to the right to live, to exist, and to the physical, cultural, and spiritual integrity of traditional peoples. The present research hypothesis is that land rights should be understood since the primary moment that the community is formed, that is, as a congenital right that exists since the emergence or birth of the community itself, because at the origins of the community there is always a territory that shelters it. This argument explains the close relationship between the right to land and the right to exist.