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The Federal Constitution contains several provisions protecting Native Brazilians and expressly acknowledges their right to be different. The enforcement of constitutional provisions regarding the protection of areas occupied by indigenous communities must be considered along with other constitutional guarantees and principles, especially property rights and legal certainty.
Indigenous issues, despite being contemplated in various provisions of the Federal Constitution, are one of the themes that present the greatest controversy.
This legal llos considers null and void acts that aim at the occupation, control and possession of these areas, without any right to indemnity for occupants, owners or possessors, with an exception only for compensation awarded for improvements made in good faith. The isolated interpretation of this legal provi sion, without considering other guarantees and constitutional principles, has the effect of disregarding the rights of any third parties that have derechks ownership over areas that are under their dominion, and often that have been for over a century.
This is one way of dealing with the problems involving the conflict between Native Brazilians and landowners. The historical dimension surrounding the indigenous question is broader than that which defines the Brazilian or even the American issue.
It is a concrete representation of an intersection that occurs in a clash between two types of civilization, forming an incompatible pair.
As Brazil grows, the indigenous population shrinks. Regardless of the historical period—colonial, monarchy, republic, dictatorship or democracy—native Brazilians have suffered from discrimination: The recognition of indigenous rights by the Constitution is an important innovation.
They are considered inhabited on a permanent basis those lands used for production, as well as those essential to the preservation of environmental dsorkin and to their well-being.
The lands that natives have in their possession are regarded as permanent possessions, as well as the use of their mineral wealth, as long as their occupation, control and possesstion do not involve illegal acts. It is the responsibility of the National Congress to authorize usage of water and mineral resources on indigenous lands and native Brazilians must approve and also share in earnings, as determined in Section 3 of art.
On the other hand, the Federal Constitution recognizes the right to difference and no longer propagates the incapacity of the native people who thereby needed protection art. In the new system, indigenous capacity is recognized so that native people may take legal action to defend their rights, without needing intermediation.
This change and the progress made in the Federal Constitution of mark a new beginning.
Los derechos en serio
In terms of indigenous issues, there has been an aim to put an end to outdated and hypocritical paradigms, such as that of integration, to seek recognition of diversities, and interaction among diverse peoples without breaking down cultural and identity sdrio. Thus, the Federal Constitution overcame the notions of ex-president Geisel, who did not understand why native Brazilians persisted in maintaining their indigenous customs.
In reference to this issue, the anthropologist Darcy Ribeirop. Why do these Indians insist on being Indians? My father and mother were German. I spoke only German until the age of 12 and today I am Brazilian. These Indians insist stubbornly on being Indians, probably because they are induced by missonaries and protection service workers. For this reason, he concluded that he would imperially declare that all unacculturated indigenous tribes should cease being indigenous and become common Brazilian communities.
This compulsory emancipation would ronalx the loss of indigenous lands, the loss of any right for compensation, and therefore, their decimation RIBEIRO,p. The issue of human dignity is an issue of insertion within a Dworkib State of Law, which is the foundation of our constitutional system and our organization as a Federative State, pledged to ensure the exercise of social and individual rights, with dwormin, safety, well-being, development, and justice as supreme values of a fraternal, pluralist and unprejudiced society.
The notion of a fundamental right and of a fundamental guarantee together with the phys ical conditions to ensure a life of dignity was first dealt with dogmatically in Germany, where it obtained legal and judicial recognition. In the doctrine, Otto Bachofp. According to him, the principle of human dignity does not only proclaim a guarantee of freedom, but also a minimum of social security, since without the material resources needed for a dignified existence, human dignity itself would be sacrificed.
For this reason, the right to life and bodily integrity can not be conceived merely as a ban on destruction of existence—as a right to defense—but also as an active stance to ensure life. Evidently, the guarantee of a dignified existence entails more than a guarantee of mere physical survival, rather it reaches beyond the threshold of absolute poverty. A life without alternatives does not fulfill the conditions of human dignity, which cannot be reduced to mere existence.
Human dignity is not dependent on any specific circumstance, since everyone–including the worst criminals—are equal in dignity, in that they are recognized as people, regardless of their behavior being less than dignified. Dignity, as a moral and spiritual value, would be a bare minimum of the values that should be respected by society, giving the eerechos being the right to self-determination and em to conduct his or her own life, and it should be detechos by the law and its dwirkin, as a recognition of the very essence and the condition of being human.
Los Derechos en Serio Ronald Dworkin Pag 61 | Uriel Bekerman –
As human beings, it is evident that Indians have the right to a dignified life on equal terms with other races. The indigenous culture, with its particular customs and rich diversity, must be respected.
Still, there have been some conscientious spirits, pioneers of indigenous human rights, derechls denounced the oppression and social injustices, which culminated in the constitutional protection of the right to indigenous communities.
In addition, the Supreme Court, edited Precedentverbis: The Nelson Jobim, given during the trial of RE 3. The same Minister, when laying out the grounds for his vote, points out that DworjinSec. In the same direction, the Supreme Court ruled in Writ of Mandamus case n.
Los derechos en serio – R. M. Dworkin – Google Books
Among other allegations, the plaintiffs contend that under the jurisprudence of the Supreme Court, the traditional indigenous lands would effectively be only those inhabited by indigenous groups at the time of the promulgation of the 4 Constitution. The understanding that Article 20, sections I and XI, do not cover land that was only inhabited by native Brazilians in ancient times is present in the trials of RE 5 and RE It would not be irrational to consider that any other reasoning would lead us to conclude that all of Brazil belongs to the Native Brazilians, who were the first occupants of the entire extension of land in the country.
However, the anthropologist, Mercian Pereira Gomes, disagrees that the promulgation date of the Federal Constitution of should be established as the cutoff date for the occupation of indigenous lands, stating that. Despite understanding that indigenous rights should be protected, we disagree with this understanding, because paragraph 6 of art.
In addition, the right to difference of these peoples should be preserved, as an expression of the fundamental right to human dignity. Removing these people from their land also means sacrificing fundamental rights.
It is important to remember that the fundamental right to human dignity includes all Brazilians, not just Native Brazilians. To make matters worse for landowners, pursuant Sec. If this paragraph were interpreted without the Constitution of cutoff date, the owners of land that one day belonged to native Brazilians would not be entitled to any amount by way of compensation, except for any improvements that had been made to the area.
In our opinion, the question should be resolved by the Union as follows: What cannot be consented is that individuals will have no right to compensation for land acquired in good faith because that land was once possessed by native Brazilians these acquisitions prior to the Federal Constitution.
Besides articles andthere are other rights provided for in the Federal Constitution, of equal hierarchy, and that must also be preserved, e. These two constitutional postulates, together with articles and of the Constitution, imply the need for such a conclusion, in that it is the duty of the legal system to recognize the effective need for protection of private property titles over areas of land that were in ancient times occupied by indigenous communities, especially when these real estate acquisitions involved equivocations on the part of the State.
A different interpretation would be clearly unconstitutional, in violation of article 5, section XXXVI, which contemplates acquired-rights and also the fundamental right of property, as provided for in section XXII, both of the Constitution. Thus, legal certainty, the principle of objective good faith and perfect legal act would also be violated. Not recognizing the acquired rights of individuals bearing legitimate titles of property would mean compromising the achievement of the ideal of legal certainty of the entire system: It should also be noted that there have been judicial decisions, which improperly used the Ra posa Serra do Sol case and only recognized the right to compensation for improvements made to the property, that is, without the value of the land itself being indemnified.
The insecurity arising from these rulings is evident and applies not only to owners, but also to the entire Brazilian population, since Brazil was entirely inhabited by native Brazilians originally. Acquired-rights and perfect legal act are constitutional guarantees engraved in article 5, section XXXVI of the Constitution.
This provision consecrates the principle of legal certainty in the Federal Constitution, which together with the principle of trust, are constituent elements of the rule of law, serving as a serii for the safe, autonomous and responsible conduct of relations in society. These principles make up the formal and material conformation of legislative and administrative acts practiced by public entities.
The Portuguese Constitutionalist J. Garcia Canotilhop. Paul de Barros Carvalhop. The principle of legal certainty derecohs a result of systemic factors, directed toward the implantation of a specific cworkin, which is to coordinate the flow of inter-human interactions in order to propagate within the social community the sense of predictability as to the legal consequences of the conduct.
This sense reassures citizens, making space for the planning of future actions, whose legal effects are known, being that esrio citizens can trust the way in which the application of laws will be carried out.
From this follows the idea of a measure of confidence in the action of public entities within the active laws and of protection of citizens in case of legal changes that are necessary to the development of State activity CANOTILHO,p. In the case of concessions of private properties, by means of numerous State acts rerechos guaranteed the right of ownership of these areas that had been in the past occupied by indigenous communities, it would be forbidden for the public administration to invalidate them, as this would cause irreparable damage to the land owners, and affront legal certainty and good faith.
Celso Antonio Bandeira de Mellop.
Taking Rights Seriously
Once the right to property is incorporated into the patrimony of an individual, it is based on laws and constitutional acts, thus it is not possible to consider vice, illegality or unconstitutionality of such acts performed over several decades. It is therefore not possible to imagine the repeal of acts performed on the basis of a decree issued by the public administration itself.
It is based upon the arguments exposed thus far, that is, in the face of acquired-rights, perfect legal act and legal certainty, all linked to good faith, that the long-standing legitimate ownership of lands, including areas of land that were occupied by native Brazilians in the distant past, must be respected.
Legal certainty is closely related to the notion of respect of good faith. If the Administration adopted a particular interpretation as correct wn applied it to concrete cases, it cannot then come to annul previous acts, under the pretext that they were made based on an erroneous interpretation. If the citizen had a given right recognized based on an interpretation adopted uniformly by the entire administration, it is clear that their good-faith must be respected.
If the law must respect the acquired right, perfect legal act and res judicata, loe of respect for the principle of legal certainty, it is not acceptable that the citizen should have their rights susceptible to variations in legal interpretations over time.
It is concluded, therefore, that it is not possible for the Public Administration to revert its acts at any time, given the stabilization of these acts, in total respect for the constitutionally guaranteed legal certainty. Considering the decision issued by the Supreme Court in the Raposa Serra do Sol case, the relevance of the coherence and integrity of judicial decisions can clearly be seen.
In hypotheses such as this one, in the face of fundamental principles and guarantees at stake. Initially, it can be said that weighing results is a method of developing the law, and the principle of proportionality arises precisely from the rationalisation of concrete solutions to the conflict of rights and assets.
For Robert Alexyp. Evidently, proportionality should also be applied to the indigenous question. In the case of private properties intended for indigenous demarcation, which are endorsed by legitimate titles showing possession prior to the Federal Constitution, the application of this principle is clearly identified in so far as the Act of the public administration affronts other fundamental rights laid down in the Constitution.
Many of the people who purchased lands where demarcation is intended, had no way of knowing at the time of purchase, that they were once occupied by native Brazilians. These people simply relied on the registry process.
This situation clearly calls for an integrated, not isolated, interpretation of the constitution. There is, however, another way to approach proportionality of legal applications than that proposed by Robert Alexy weighing in order to solve conflicts between principles that, depending on how they are conceived, would justify opposing solutions. The American author Ronald Dworkin, springing from different premises than those proposed by Robert Alexy suffice it to say that Dworkin does not believe in the existence of an actual conflict between principlesprovides an alternative way of confronting legal controversies using a hermeneutical point of view or interpretavist.
In the work of Dworkin, the principle of proportionality is approached as the requirement that the judicial decision, necessarily generated by principles, maintain coherence with the integrity of the law.
We will briefly review his reasoning, seeking to strengthen our arguments in favor of an interpretevist proposal that could harmonize, rather than distancing or choosing one over another, the constitutional principles that appear as potentially influential to solve the indigenous question in this text.
In the commended formulation of the English legal philosopher, the law is a complex system of ruleswhose normative source is, ultimately, social recognition. There are rules that define the way other rules are created, as well as establishing the competence for dictating them second-degree rules ; and there are rules of conduct that establish obligations, duties, etc.
In this system, the judge would be the agent responsible for resolving legal controversies involved in the application of rules recognized by the community. To solve cases not contemplated by the rules or simply doubtful where the actual application itself is questionedthe judge would have a certain margin of leeway, admitted by the system. In other words, the Law is a phenomenon constituted by language and the rules are conceived as having an open texture, to be contemplated and filled by judicial discretion.
Following this formulation, difficult cases, such as the indigenous issue, would be solved, ultimately, by judicial discretion.
