A CONSTITUCIONALIDADE DA DEMARCAÇÃO DOS TERRITÓRIOS INDÍGENAS BRASILEIROS: UMA ANÁLISE SOB AS LUZES DA CONSTITUIÇÃO FEDERAL DE 1988 E DOS PRECEDENTES JUDICIAIS BRASILEIROS

Abstract

It is well known that the actions of the Brazilian Judicial Branch as well as the constitutional and infraconstitutional norms are not properly effective in the protection and integration of indigenous peoples and the demarcation of their lands. In this sense, such norms require specific regulation of specific actions regarding the demarcation of indigenous lands, while the right to ownership of these lands is older than the Brazilian normative body itself. The decisions of the Brazilian superior courts are no longer desirable with respect to the security of their determinations in actions involving property, the Union, private individuals and indigenous peoples, whereas the part that suffers the most is precisely that which should be more protected by the Brazilian Judicial Branch. The recognition of indigenous lands through the approval of Law 6,011 / 73, commonly known as the Indian Statute, as well as article 231 of the Federal Constitution of 1988, includes in its wording the recognition of a series of rights to indigenous peoples, in return with the rights of landlords of farmers who seek the firmament of their property rights, but in the social and legal balance the realization of indigenous rights is in second place, evidencing not only a dispute over property, but also a dispute of political, social interests and economics, highlighting the divergence between the constitutionally guaranteed demarcation rights and agribusiness export earnings.