Conflitos agrários e direitos territoriais indígenas : análise da proposta de Emenda à Constituição nº 215/2000 e da Portaria nº 303, de 2012, da Advocacia-Geral da União

Abstract

This dissertation analyzes collective agrarian conflicts involving indigenous lands in Brazil, focusing on the normative instrumentalization of the demarcation process and institutional disputes surrounding constitutional review. The central problem lies in understanding how proposed constitutional amendments, sub-constitutional normative acts, and restrictive interpretations — especially those related to Constitutional Amendment Proposal No. 215/2000, its appended proposals, and Attorney General’s Office Ordinance No. 303/2012 — contributed to the intensification of conflicts, legal uncertainty, and processes of criminalization of indigenous peoples. The study begins with the constitutional recognition of original rights to traditionally occupied lands, examining the legal regime established by Article 231 of the Federal Constitution and its relationship with the principle of separation of powers, entrenched clauses, and constitutional review. The analysis is guided by theoretical frameworks of democratic constitutionalism and the theory of fundamental rights, engaging with the doctrines of Dalmo de Abreu Dallari, Carlos Frederico Marés, José Afonso da Silva, as well as the critical perspective of legal pluralism and the differentiated protection of ethnic minorities. The work adopts a qualitative, legal-dogmatic, and analytical-critical approach, examining decisions of the Supreme Federal Court, legislative proposals, and administrative acts that challenge the constitutional model of demarcation. The first chapter addresses the constitutional foundations of indigenous territorial rights and the original nature of indigenous land rights. The second examines the demarcation process, the controversy surrounding the temporal framework, and the normative conflicts arising from attempts to amend Article 231 of the Constitution. The third analyzes constitutional review and the institutional disputes among the branches of government in the formulation of indigenous policy. As a result, the research demonstrates that submitting land demarcation to majority political deliberation represents a risk of materially emptying the original right to land, as well as violating the principle of separation of powers. The scientific contribution consists of a critical systematization of the proposed constitutional reforms, demonstrating their structural impacts on the constitutional architecture protecting indigenous peoples and indicating interpretative parameters aimed at maximizing the effectiveness of fundamental rights, preserving entrenched clauses, and consolidating a demarcation policy model compatible with the Democratic Rule of Law. It is concluded that attempts to subject the demarcation of indigenous lands to majoritarian political logic and restrictive interpretations of the constitutional text weaken the protection of original rights guaranteed by the 1988 Federal Constitution, compromise the effectiveness of ethnic-cultural pluralism, and intensify collective agrarian conflicts. Therefore, preserving the constitutional model of indigenous territorial protection constitutes an indispensable condition for the realization of the Democratic Rule of Law, human dignity, and the maximum effectiveness of the fundamental rights of indigenous peoples.