Direitos territoriais dos índios no STF: superando a epistemologia da invisibilidade social indígena através do reconhecimento primário e da contrapublicidade

Abstract

It is well-known the conflicts for land claimed by indigenous peoples still persist, even after the recognition of the lands granted by the Federal Constitution of 1988 and the paradigmatic decision about the demarcation of Raposa Serra do Sol Indigenous Land. The vast regulation concerning the theme, both at global and local level, was not enough for the Federal Supreme Court to pronounce a decision recognizing the ancestry of the right to occupation and, thereby, to collaborate to pacify the issue. The question to be answered has this contradictory scenario: if there was an effective formal recognition, why, despite this, do the Indians still claim the lands that symbolize their culture and their reason to exist? From this question, a look is cast, under the theories of Axel Honneth and Nancy Fraser, in the search for ideas that can represent the overcoming of the frame of effectiveness of indigenous peoples’ rights. At the beginning, Honneth defended a monistic recognition theory, based on self-realization, once he understands the experiences of suffering and exclusion are able to form the fuel that will commence struggles which have repercussion on social movements and, with this, would happen an individual emancipation able to solve distribution problems. In another direction, debating with Honneth, Fraser says recognition, by itself, is unable to solve all injustices and so it is necessary to combine measures capable of promoting distribution. From these studies, the authors conceive other proposals aimed at overcoming invisibility, subordination status, understanding reification as a product of forgetfulness of antecedent recognition, and the importance of counterpublics in relation to official debate arenas. Always guided by this theoretical reference, it was done a review of the evolution of formal indigenous rights recognition and a critique of the way these norms were received in the demarcation trial of Raposa Serra do Sol Indigenous Land and other decisions likewise did not contribute to pacify conflicts. At the end, it was attempted to demonstrate that Honneth and Fraser’s theories, isolated or allied, can contribute for the realization of territorial rights already recognized to indigenous.