Regularização fundiária de terras indígenas: uma análise dos casos Xákmok Kásek vs. Paraguai e Povo Xucuru vs. Brasil

Abstract

The regularization of indigenous land has always been a subject of great relevance and surrounded by notorious polemics. The regulatory process of this category of land involves, in its immense majority of cases, conflicts between the indigenous peoples occupying those lands and interested third parties, either by the occupation in good faith or by the financial interest that these lands possess. The issue, not rarely, reaches the doors of the Judiciary, to which is assigned the responsibility to determine who actually owns the real right over those properties. However, when these cases reach the maximum instance of the Judiciary, it is possible to observe that rarely does the dialogue between sources takes place. The present paper proposes to analyze if the Brazilian Judiciary is concerned with not only the control of constitutionality, but also the control of convention, observing the way in which it judges the Inter-American Court of Human Rights when dealing with cases that involve indigenous lands. The study is justified by the relevance of the theme for these indigenous peoples in relation to the human rights established by the American Convention, using for this purpose a bibliographic, descriptive and documentary research through the exploratory deductive method.