NEGOCIANDO O INEGOCIÁVEL

A FARSA DA CONCILIAÇÃO E A INDENIZAÇÃO POR TERRA NUA NA DEMARCAÇÃO DE TERRAS INDÍGENAS NO BRASIL

Abstract

The article critically examines two controversies within the legal regime governing Indigenous lands in Brazil following the Constitution of 1988: the “temporal framework” thesis (marco temporal) and the proposal of compensation for bare land in demarcation processes. The study evaluates the compatibility of these interpretations with the constitutional recognition of the original rights of Indigenous peoples over the lands they traditionally occupy. The methodology is qualitative, grounded in doctrinal legal analysis of constitutional provisions, decisions of the Supreme Federal Court, with particular emphasis on General Repercussion Theme 1.031, and specialized scholarly literature. The research also incorporates contributions from international human rights law, especially norms concerning Indigenous territorial protection. The article argues that the temporal framework thesis is unconstitutional insofar as it subordinates original rights, of a congenital and imprescriptible nature, to a temporal criterion not provided for in the constitutional text, disregarding historical processes of expulsion and forced displacement. It further contends that compensation for bare land, although framed as a conciliatory solution, likewise contradicts §6 of Article 231 of the Constitution, as it admits compensation for legally null acts of occupation of Indigenous lands. It concludes that both theses function as mechanisms for relativizing Indigenous territorial rights, reproducing dynamics of coloniality within the Brazilian state. The article maintains that full implementation of the constitutional framework requires rejecting such interpretations and ensuring the effective demarcation of Indigenous lands, free from conditions or compensatory measures incompatible with the prevailing constitutional order.