A posse das terras tradicionalmente ocupadas pelos índios como um instituto diverso da posse civil e sua qualificação como um direito constitucional fundamental / Possession of traditionally occupied londs by indigenous people as a fundamental constitutional rigth diverse from civil possession rights

AUTOR(ES)
DATA DE PUBLICAÇÃO

2010

RESUMO

This paper includes a study on the fundamental rights of indigenous peoples on the lands they traditionally occupy, as the Constitution of the Federative Republic of Brazil enacted in 1988. Previously, a study was conducted on the legal definitions of indigenous peoples and indigenous communities in Brazilian law and on the constitutional development of indigenous territory rights in Brazil, since the Imperial Constitution of 1824, in order to facilitate understanding of land possession. It has been verified that the rights of indigenous peoples on the lands they traditionally occupy are recognized by the Constitution of the Federative Republic of Brazil of 1988 as originary rights, therefore predating the emergence of the Brazilian State. Possession of traditionally occupied lands is thus permanently secured to the indigenous peoples, notwithstanding land property rights of the Brazilian Federal Union. The grant of indigenous land possession is done not out of the elements that determine the existence of a civilian ownership, but according to the traditional way of life of the indigenous community that occupies the land, ie, according to their uses, customs and traditions. It is argued that the constitutional right of indigenous peoples to the lands they traditionally occupy can be perceived as a fundamental right, although it has not been foreseen in the 5 art. of the Brazilian Constitution. However, this right complies with the 5 art. 2 of the Brazilian Constitution, which recognizes the fundamentality of precepts found in international treaties on human rights to which Brazil is a signatory, as well as those resulting from principles and the constitutional system. From there, it is perceivable that the characteristics of fundamental rights are present in the right of indigenous peoples to their lands, creating legal consequences of great importance to the pursuit of the effectiveness of such a right. Lastly, an emblematic trial of the recent history of indigenous rights is presented, where the Brazilian Supreme Court confirms its understanding of the issue and exposes some of the theories advocated in this work. Keywords: Indigenous possession. Civil possession. Brazilian Federal Constitution. Fundamental right. Effectiveness.

ASSUNTO(S)

posse indÍgena - dissertaÇÕes constituiÇÃo - brasil - 1988 - dissertaÇÕes direitos fundamentais - dissertaÇÕes direito constitucional

ACESSO AO ARTIGO

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