A TESE MARCO TEMPORAL E O DIREITO FUNDAMENTAL AO TERRITÓRIO INDÍGENA

UMA VISÃO A PARTIR DO CONSTITUCIONALISMO GARANTISTA

Abstract

The time frame of the occupation is one of the great instruments of the legal struggle to limit the right to indigenous territory in Brazil, being the thesis developed from an important judgment that resulted in the demarcation of the Raposa Serra do Sol Indigenous Land. The article discusses the nature of the right to territory, defining it as a fundamental right and, based on guaranty constitutionalism, drawing a clear distinction between attributes of fundamental rights and property rights. Based on this distinction, it is concluded that the temporal framework thesis confuses different legal categories, transcends the contours expressed in the constitutional text and thus proves to be incoherent and unconstitutional.