A Colonialidade Jurídica e a Subversão dos Direitos Territoriais Indígenas: Caminhos para um Constitucionalismo Decolonial no Brasil e na Bolívia

Abstract

The Constitutions of Brazil (1988) and Bolivia (2009) represent moments of paradigmatic rupture with the recognition of Indigenous territorial rights; however, the nature of the relationship maintained by the State with these peoples remains grounded in territorial intervention and exploitation, associated with racial discrimination and constant physical, cultural, and epistemic threats. This research stems from the concern to understand why Indigenous territorial rights continue to be constantly threatened, even after their constitutional recognition in Brazil and Bolivia. The hypothesis raised problematizes the pragmatic effect of the new constitutional texts, which, despite attempting proposals for emancipation through Legal Pluralism, are in practice being interpreted and applied by Supreme Constitutional Courts in a way that updates the perpetual subjugation of Indigenous peoples and their territories. The study is operationalized through a comparative exercise between the legal frameworks of the 1988 Brazilian Federal Constitution and the 2009 Political Constitution of the Plurinational State of Bolivia, based on the study of two judgments involving emblematic cases that shaped the jurisprudence of the Supreme Courts regarding Indigenous territorialities in both countries. The investigation examines the interpretive mismatch in the case of the "Marco Temporal" (Timeframe Thesis) ruling by the Federal Supreme Court in Brazil, and the case of the Isiboro Sécure Indigenous Territory and National Park by the Plurinational Constitutional Court in Bolivia. The study seeks to elaborate on the persistence of various types of conflicts involving rights over Indigenous territories, starting from the existence and persistence of Legal Coloniality, a matrix of power that distorts the fundamental constitutional rights of Indigenous Peoples, contributing to their subversion and weakening in both Brazil and Bolivia. The methodology is based on the conceptual parameters of Decolonial Comparative Law, articulated with analytical categories from Decolonial Theory, Legal Pluralism, and Diatopic Hermeneutics. The research sources are bibliographic and documentary, focusing on the analysis of legislation and constitutional jurisprudence, as well as historical and socio-anthropological factors related to the formation of each territorial context. The results of the investigation indicate that in Brazil, Legal Coloniality remains latent and manifests through restrictive legal theses that disregard the historical violence that caused the deterritorialization of numerous Indigenous Peoples, resulting in a merely symbolic constitutionalization and the systemic production of Indigenous sub-citizenship. Meanwhile, in Bolivia, the phenomenon occurs through the subordination of the Indigenous - Origin Peasant Jurisdiction (Jurisdicción Indígena Originaria Campesina) to the interests of neo-extractivism, evidenced by laws such as the Jurisdictional Demarcation Law (Ley de Deslinde Jurisdiccional) and by legal artifices that seek to reverse territorial intangibility. The challenges to realizing Indigenous territorial rights remain tied to structural issues and problems dating back to the colonialism practiced in the region. The research points out that the formal recognition of Indigenous territorial and jurisdictional rights—even when broad, as in the case of Bolivia—is insufficient to ensure the territorial autonomy of these peoples without a simultaneous and profound decolonization of state legal structures and practices, which historically operate as instruments of expropriation and domination through tutelage (guardianship).