Delineation of indigenous lands in the brazilian Supreme Federal Court and the decolonisation of the concept of possession

Abstract

One of the most impactful cases for decolonization efforts and transformative changes in the Brazilian constitutional structure can be observed in the Constitutional Court’s rulings on the protection of Indigenous lands and the debate over the existence of a marco temporal (time frame) capable of defining the period that would justify the displacement of traditional peoples and the alienation of their lands for colonization purposes. This research aims, based on the principles and interpretations established by the Federal Supreme Court, to analyze the break with the historical tradition of occupation and regulation of Indigenous lands, beginning by distinguishing the notion of Indigenous land possession from the concept of possession derived from the Germanic-Roman legal tradition. In this sense, it highlights the use of argumentative models grounded in theoretical frameworks and judicial decisions primarily developed in Brazil, thus breaking with the tradition of relying on foreign citations and precedents, and demonstrating the need to limit, through transconstitutionalism, a new instrument of hegemonic domination. According to the understanding of the Supreme Court, the lands occupied by traditional peoples are the permanent possession of these communities, and they hold the right to the usufruct of the resources of the soil, rivers, and lakes existing therein. This represents the recognition of a form of legal pluralism that is typically decolonial and endemic.