Entre (in)visibilidade e integração: os desafios socioambientais para estabelecimento da jurisdição indígena no Brasil a partir do movimento constitucionalista latino-americano

Abstract

Nation, culture, tribe, community are terms to define the identity of a people or society. In Modernity, these feelings of belonging stay closed in the figure of the State, a political institution, under the ideal of creating a feeling of fidelity for the population. This paradigm, although under some revolts, lasted for more than three centuries. In the contemporaneity, however, the state identity monopoly is in crisis, starting with the globalization of the senses, so that identities and belongings no longer refer to the State, but take up a local or global character. This plurality of meaning-emitting centers can felt in the legal system, largely dominated by State, which socially diffuse legal manifestations continue to be gradually empowered. In Latin America, a political, social and legal movement has risen since the 1980s, with an emancipatory and decolonial character, operating in spaces where the State did not respond to the population's wishes, with the aim of re-founding state bases, through revolutionary constitutional processes. Called Latin American Constitutionalism, this plural process of new constitutional texts has a guiding thread, which is the liberation of original peoples, for five centuries made invisible by colonization, through their political, social and legal autonomy, based on adherence to the Buen Vivir as logic to face the relationship with nature (natural, cultural and artificial). Latin American constitutionalism has some distinct phases, with different degrees of advancement over plurality and pluralism, which make it possible to build a logical path traveled by local countries, reaching, at the end of the first decade of the 21st century, the level of recognition of plurinationality as a foundation, based on two recent constitutions, in Ecuador and Bolivia. It is in this spectrum that the present work is inserted, based on the experiences observed in Latin American states, in the sense of addressing the theme of indigenous jurisdiction, analyzing what are the challenges for the establishment of this legal phenomenon in Brazilian law, sometimes realization of an integration of state institutionality with native peoples. To this end, the problem of the present work seeks to answer what constitutional, legislative, political and social changes are necessary for the establishment of indigenous jurisdiction in Brazilian law, recognizing legal pluralism, in the wake of the Latin American constitutional movements, as a tool for integration and recognition of differences, based on the philosophy of Buen Vivir? The initial hypothesis, confirmed during the research, is that the institutional recognition of the decisions issued by the local judgments, of the indigenous authorities, based on their customary law, offers a fruitful space for the integration of the native peoples present in the Brazilian territory. To this end, it is necessary to mediate the relationship of the State with the environment through Buen Vivir, as the basic philosophical logic of the new institutionality that will emerge, directing the State to an environmental ethics. Avoiding the maintenance of indigenous invisibility involves reinforcing sustainable environmental practices, rethinking anthropocentrism, implementing actions that allow indigenous people to integrate, without forcing them to renounce their culture. The general objective of the present work, achieved during the research, was develop the necessary legal and political bases for Brazil to recognize an indigenous jurisdiction and what changes are necessary in the State for this [resumo fornecido pelo autor].