Análise do modelo de demarcação e usufruto coletivo indígena aplicado à Terra Indígena Raposa Serra do Sol

Abstract

This study presents an analysis of the decision of the Federal Supreme Court (STF in Portuguese), in Pet. 3388, which decided on the demarcation of the Raposa Serra do Sol Indigenous Land (TIRSS in Portuguese). In this decision, the STF presented a robust syllabus and a consistent dispositive part, this one with eighteen items to support the decision and nineteen additional “safeguards”, which came to be called “Conditions”. The objectives of this study are to promote an analysis of the model of demarcation and exclusive use of indigenous lands on that Indigenous Land as a possible ideal model of use for future demarcations, considering the legal and constitutional limitations of indigenous use of these lands. Therefore, initially I sought to understand the events starting in the 17th century, with the arrival of the Europeans in the region of the current State of Roraima, the first contacts with the Indians and the beginning of the identity of the indigenous peoples’ formation in the region that would, in the future, be called Terra Indígena Raposa Serra do Sol, the process of demarcation of the area, until it ends in a judicial process wich got to the Supreme Court. Yet, we treat the “exclusive indigenous usufruct and its limits”, starting from the different cosmovisions about the word “land” for both Indians and non-Indians, entering into the analysis of civil usufruct as a real right and its differences as the exclusive indigenous usufruct . In sequence, we move on to address the decision of the Supreme Federal Court, detailing the operative part (justifications) and the “Conditionings”, seeking to understand the foundations of each one. Finally, we seek to encompass the model adopted in TIRSS as a possible ideal paradigm of demarcation, starting from the refusal of the STF in recognizing binding effect of the decision, the presses exerted by the sponsors of the new judicial processes post-decision of the demarcation of TIRSS, the results achieved by the model in that indigenous land until the present days. Methodologically, we opted by the inductive method, observing particular facts and, from this observation, making a generalization of the facts. So, we seek to print, during the research, the inductive reasoning, taking care so that the data perceived in the investigated reality can lead to an unknown reality, probably true, in the form established by Trigueiro et al (2014). Regards to the analysis of decisions, we opt by the Methodology of Decision Analysis - MAD in Poruguese, seeking to understand the reasons for the Supreme Court’s in this case. The analysis led to the conclusion that, practically, the entire decision is likely to become paradigmatic and binding on the decisions of other instances of the Judiciary.