Os instrumentos jurídico-administrativos diversos da demarcação de terras indígenas do Decreto 1.775/96 e os direitos territoriais no Rio Grande do Sul: disputas assimétricas e potencialidades (des)coloniais.

Abstract

This thesis analyzes the different legal-administrative instruments of the administrative process of demarcation of indigenous lands provided for in Decree 1.775/96 mobilized in Rio Grande do Sul, problematizing whether these modalities ensure territorial rights to indigenous peoples, and how they relate to the legal regime of indigenous lands, provided for in article 231 of the Constitution. It was found that investigations on the subject are scarce, despite the aforementioned administrative legal instruments being adopted in federal, municipal and state administrative praxis, and in decisions by the Judiciary. It justifies the systematization undertaken, providing the basis for discussing whether such instruments guarantee territorial rights and their relationship with the constitutional legal regime of indigenous lands. To this end, the theoretical framework of decolonial thinking is adopted, augmented by the conceptual contributions of anthropological studies, discussing the standard of legality imposed in the colonial situation and the current normative framework; the obstacles in the process of demarcating indigenous lands, such as Law 14,701/2023, and the Kaingang, Charrua, Xokleng and Guarani agencies in mobilization actions and direct recovery of territories, as in the retakes in Rio Grande do Sul. Based on bibliographical and documentary research, guided by technical visits and participant observation, areas of cultural interest, transfer of use and indigenous reserves were identified in this context. The procedures and hypotheses that make such modalities viable were also systematized, such as expropriation for social interest, direct acquisition, donation, compensation in the context of environmental licensing, payment in payment to the Union of state public lands and other forms of allocation of state public lands, municipal and federal. It is argued that in addition to the analysis of the normative framework linked to the aforementioned procedures and institutes, the complexity of societies marked by coloniality demands a critical and historically situated understanding of the factors and agents that influence and give new meaning to socio-legal relations in the field of indigenous territorial rights. To this end, current legal efforts to control and expand economic exploitation of indigenous lands are considered, such as the thesis of the time frame of occupation, Law no. 14.701/2023 and restrictive notions of territorial rights dealt with in RE n. 1017365. Elements that insert the legal-administrative instruments different from the demarcation of Decree 1.775/96 in an asymmetrical and contradictory context of disputes, envisioning, on the one hand, potential for the protection of territorial rights through articulation with the state and municipalities, and through guarantee of permanence in the claimed territories. While on the other hand, the mischaracterization of the recognition of the original rights of indigenous peoples by traditionality operates with the progressive insertion of consensuality, consideration, autonomy of will and negotiation typical of civil patrimonial relations, preponderating the logic of private property over the differentiated protection of rights indigenous territories. Thus, it is argued that a multiplicity of legal-administrative instruments and the constitutional reinterpretation of institutes such as the indigenous reserve can be ways of increasing the guarantee of territorial rights, considering the diversity of forms of indigenous occupation and their own articulations in defense of the territory, and the complexity of social relationships established between indigenous peoples and the surrounding society.