Almas vazias, terras vazias: a posse/propriedade sobre terras indígenas no Brasil a partir do pensamento decolonial

Abstract

In Brazil, the Federal Constitution of 1988 states that "lands traditionally occupied by "Indians" are public goods of the National Union (article 20, XI, CF/88) destined for the permanent possession of indigenous peoples" (article 231, § 2°, CF/88). Considering the propositions by the group modernity/coloniality/decoloniality, this research seeks to identify possible expressions of Coloniality of Power, Being and Knowledge in the current legal ordering of indigenous lands in Brazil. The importance of the coloniality category lies in the relevance attributed to the marker of race in the conformation of the current system of power, which brakes out and becomes global from the experience of colonization of America, and that continues to operate through the systematic denial of knowledge and way of being from indigenous peoples, associating them with an earlier point of evolution in the unilinear line of world history. The historical study of the national legal system demonstrated how, since colonialism, the provisions on indigenous lands were closely related to the perspective held regarding their humanity. In this sense, it's demonstrated that since colonization in Brazil, the notion that the indigenous had "empty souls" - later turned into emptiness of civility - allowed the appropriation of their lands as a public good, first through the system of sesmarias, then through the so-called "vacant lands". Through the coloniality category it was possible to identify how the current model of legal-constitutional ordering of indigenous lands in Brazil, split in possession and property, fosters the idea of non-contemporaneity of indigenous peoples and opens the way for the concealment of the appropriation of their territories through the category "vacant lands". The research was carried out based on bibliographic and documentary analyses, especially the indigenistic literature, the production of the modernity/coloniality/decoloniality group, the current constitutional text and the Indian Statute, respectively.