Os fundamentos do direito originário às terras tradicionalmente ocupadas pelos índios à luz da força normativa da Constituição Federal de 1988

Abstract

The Brazilian Supreme Federal Court (STF), in the judgment of Petition 3388 (“Raposa Serra do Sol” case), formulated the theory of indigenous fact to regulate the demarcation of indigenous lands, establishing, in addition to the criterion of traditional occupation, the indigenous presence in the claimed land starting from the date of the Federal Constitution’s promulgation (October 5, 1988), except for the situations of reluctant embezzlement duly proven. Such a theory was proposed as a substitute for the congenital right to land, an institute commonly referred to as the foundation of the original right to land, based on indigenous identity, which would be the congenital title legitimizing possession. The doctrine also points to territorialisation as the most recent ground of the right to land. Thus, through a bibliographic and documentary research of an exploratory purpose, we sought to investigate the basis of the right to land. In other words, this work aims to demonstrate which theory, among the proposals, is consistent with the meaning of article 231 of the Brazilian Constitution. First, the aforementioned foundations (indigenous fact, indigenic fact and territorialisation) were presented and then analyzed in the light of the Federal Constitution of 1988 and the Normative Force Theory of the Constitution of Konrad Hesse. The development of the research demonstrated the unconstitutionality of the theory of the indigenous fact, since the temporal frame, at the heart of this theory, is not foreseen in the constitutional text, nor can it be deduced from it. In addition, the application of the timeframe disregards the history of embezzlement experienced by Brazilian indigenous peoples. On the other hand, territorialisation and congenital right to land have been complementary to each other and compatible with the Constitution. At the end of the study, the repercussion of the theory of the indigenous fact on “quilombola” (rural settlement based upon African ancestry and resistance to historical oppression) territorial rights was also discussed, considering the trend of application of the timeframe to the demarcations of “quilombola” territories. Thus, the Brazilian Supreme Federal Court must undertake a overhaul in its understanding in order that the normative force of the Federal Constitution of 1988 be preserved and that the rights of the Indians (and of the minorities, more widely) be respected.