Interethnic land disputes: constitutional and procedural issues

Abstract

Indigenous lands in Brazil occupy more than one hundred million hectares, about 13,28% of the national territory. The demarcation procedures are always preceded by intense interethnic disputes, that invariably are judicialized. The actors in the judicial process are not always properly prepared for leading demands of this nature, where civilian possession is opposed to indigenous possession. Although indigenous minorities deserve special attention in the delimitation of the lands traditionally occupied, the fundamental right to legal defense in the procedure to remove invaders or third parties, can’t be denied. The purpose of this paper is to show the legal nuances around the possessory claims in dispute of indigenous rights, identifying technical legal criteria to harmonize the conflict of fundamental human rights between Indians and non-Indians. The standardization of procedures and legal institutes that involve this subject are essential to settle this kind of disputes in order to implement social justice in that territory, in a fast and effective way.