Indigenous Lands: An Analysis through the Lens of Democratic Constitutionalism

Abstract

The analysis proposed in this article is to verify the treatment given to indigenous issues, with a focus on the original right to land, by the Brazilian Supreme Court (STF), considering its non-exclusive role in attributing democratic legitimacy to the Constitution, according to the model of Democratic Constitutionalism proposed by Robert Post and Reva Siegel. To this end, empirical research was carried out on the database available on the STF’s website, searching for all decisions on indigenous issues published up to October 6, 1988. To complement the work, other existing studies relating to the period after the 1988 Brazilian Federal Constitution were used. Regarding the period before the 1988 Federal Constitution, only 5 decisions on the merits were found, while all others were limited to procedural issues. Regarding the period after the Constitution, due to the difference in the methodology used in existing studies, there was a tendency to keep decisions within a logic more restricted to procedural issues. Thus, by observing an inclination towards more minimalist decisions, we demonstrated that, in addition to being few, the decisions were not effective in resolving the conflict underlying the disputes brought before the Court. This conclusion challenges the view that the Supreme Court has managed to confer democratic legitimacy on its decisions, confirming the initial hypothesis that it is a reproducing body of a colonial, uniform, universalizing, centralizing, and monistic system, given its difficulty in recognizing socio-diversity and promoting intercultural dialogues.