"An ordinary task to any constitutional court"?: overinterpretation and the time of occupation criterion (marco temporal) in the Raposa Serra do Sol indigenous land

Abstract

This paper investigates the connections between the phenomenon of overinterpretation in Law and the time of occupation criterion, called marco temporal thesis, using the Law and Literature methodology. The category of overinterpretation hereby considered comes from the literary theory by Italian semioticist Umberto Eco. In this paper, overinterpretation theory is applied to Law, from its interlocution with Literature. This very category was mentioned in the Report n.001/2017, by the Brazilian Federal Attorney General’s Office, on the marco temporal thesis, which gave rise to the judgement analysis of Petition 3388/RR, by the Brazilian Federal Supreme Court, also known as the case of Raposa Serra do Sol Indigenous Land, when the abovementioned thesis was established. Then follows the analysis on the approximations between overinterpretation and the institutional safeguards provided for in the sentence, which go beyond the original case; as well as the hyperfictional aspect of the marco temporal thesis, which, by adopting a restrictive interpretation of indigenous territorial rights, denies the colonial process and the State’s own efforts to carry out forced removals of indigenous peoples. It also ignores the historicity and traditional occupation of the Brazilian territory by the indigenous peoples, which crosses textual limits and contradicts the Constitution itself.