Autodeterminação dos povos indígenas e Estado-Nação: análise a partir do direito internacional e do ordenamento jurídico brasileiro

Abstract

The present paper has as its objective to analyze the evolution of the concept of the right to self-determination of peoples until its recognition to indigenous peoples, as well as to identify which are the existing parameters to its exercise on the Brazilian legal system. It starts with an analysis of the right to self-determination in its traditional conception, associated to territories under the trusteeship regimen, taking to the enlargement of the conception to cover the still existing colonies after World War II and, most recently, the existing ethnic minorities in a multiethnic State, context in which are inserted the indigenous peoples. By analyzing the aspects of the right to self-determination, it is shown that the right of indigenous peoples is associated mainly to the ideals of autonomy and self-government, expressed on the United Nations Declaration on the Rights of Indigenous Peoples, that doesn’t lead, at first, to the right of secession. By this way, it is shown that the effective respect to selfdetermination of those peoples depends on the existence of parameters on the legal system of each State that make possible its exercise. It is taken, then, to an analysis of the Brazilian legal system since the colonial age, trying to identify remote antecedents that have represented a drawing of the right to self-determination of those peoples. At last, it is identified as internal correspondents to the right of selfdetermination the originary rights over the occupied lands and the State’s duty on consulting the peoples before the adoption of measures that might affect them, making a brief analysis on specific cases associated to those rights to identify if there is an effective respect on the part of the Brazilian State.