A titularidade das terra indígenas no Brasil: análise do paradoxo entre a Constituição Federal 1988 e o Direito Internacional dos Direitos Humanos

• Ano de defesa: 2015
• Autor(a) principal: Nogueira, Marcela Iossi
• Orientador(a): Dantas, Fernando Antônio de Carvalho
• Tipo de documento: Dissertação
• Tipo de acesso: Acesso aberto
• Idioma: por
• Instituição de defesa: Universidade Federal de Goiás
• Programa de Pós-Graduação: Programa de Pós-graduação em Direito Agrário (FD)
• Departamento: Faculdade de Direito - FD (RG)
• País: Brasil
• Palavras-chave em Português: Constitucionalismo plural; Constituição Federal; Convenção 169; Terras indígenas
• Palavras-chave em Inglês: Plural constitutionalism; Constitution; 169 convention; Indigenous lands
• Área do conhecimento CNPq: DIREITO PUBLICO::DIREITO CONSTITUCIONAL
• Link de acesso: http://repositorio.bc.ufg.br/tede/handle/tede/5083

The thesis proposed here aims to analyze the paradox between the forecast in the 1988 Constitution, which establishes the ownership of indigenous lands as the Union, and the 169 Convention of the International Labour Organization thath establishing the lands traditionally occupied like indigenous peoples property. The pluarl constitutionalism will be the starting point of this study – proposes the reinterpretation of the national state based on equality of cultural relations, as well as recognition and respect to the peculiarities of different peoples and their traditions. So there are two fundamental questions, a) There is an antinomy between the standards mentioned, and which consists in this antinomy? b) What is the cause of this antinomy? The 169 Convention covers as one of its guarantees the right to reparation for theft of property of the tribal people, be they intellectual, material, cultural or even religious. The mentioned law was ratified in national plan in July 2002 and published in July 2003, and before it is born is the issue we intend to address because, when the time of ratification of the Convention, member states undertake to perform suitability of their national legislation and practices to the terms and provisions thereof. By ratifying the Convention in July 2002, Brazil, which in addition to member state of the International Labour Organization is one of the ten countries with a permanent seat on its Board of Directors, joined the instrument of international law more comprehensive for that matter, which seeks ensure that indigenous and tribal societies the minimum rights to safeguard their culture and identity in the context of the companies which, if they wish. To understand the paradox pointed out it is necessary to understand how to check the current recognition of indigenous societies as culturally different peoples with the right to identity and specificity, demonstrating how the history of the development of the country has imposed marginalization of indigenous communities, denying their rights and expunging their populations, and also question the appropriateness of forms of international law to the national legal system considering the particularities of the companies that deal.