Diferença não é incapacidade : gênese e trajetória histórica da concepção da incapacidade indígena e sua insustentabilidade nos marcos do protagonismo dos povos indígenas e do texto constitucional de 1988

AUTOR(ES)
DATA DE PUBLICAÇÃO

2007

RESUMO

This work discusses the question of the legal capacity of the Brazilian indigenous peoples, and of their subjection to the regimen of a special tutor, foreseen in infra-consitutional laws. Considering the historical rupture of the Federal Constitution of 1988 with the former paradigm of the assimilation of the Indians into the Brazilian national community, this paper searches to understand to what measure the rupture introduced, or not, alterations in the understanding and the practice of jurists and Brazilian legal institutions regarding the subject. The study is divided in two distinct parts. The First consists of a historical study of the philosophical, theological and legal origins of the concept of indigenous incapacity, is divided in three chapters. Chapter 1 approaches its at the beginning origin of the Spanish conquests in century XVI, with prominence for the disputation of Valladolid (1550) between Sepúlveda and Las Casas, passing later for the treatment given to the subject for the Portuguese Crown and the aboriginal legislation of the Empire, reflected enters the positions of Jose Bonifácio and Varnhagen. Chapter 2 shows the development of the protection to tutor aboriginal during the Republic, until the advent of the Statute of the Indian (1973), passing for the position of legal literature in the period around the subject, and of the treatment it excused by executive them, Legislative and Judiciary. Chapter 3 focuses the emergency of the aboriginal movement in the decades of 1970 and 1980, its protagonism in the constituent scene of 1986-88, and the proposals debated there around the question of the aboriginal legal capacity. The Second Part begins with the identification of the new constitutional paradigms treating the relation of the Brazilian state with the indigenous peoples and at the same time inserts this in the perspective of a new juridical culture where the communities and indigenous peoples acquires an important role as collective subjects of rights and producers of their own juridical norms. After this, the author attempts to diagnose the treatment given by legal literature to the question of the aborigines civil capacity, during the validity of the Civil Code of 1916 as well as the Civil Code of 2002, and how this discussion is a part of the practice of the State. Because of the resistance of the majority of legal operators to understand the civil capacity of the indigenous peoples from the viewpoint of the new constitutional parameters, the research points out the importance of its analysis in the scope of the systematic adopted by Civil constitutional law, in order to make possible the overcoming of the concept of aborigine incapacity. Finally, this paper is the result of documented research rising from the preoccupations of the author who has worked for many years in the defense of indigenous rights and who sees that the question of aboriginal guardianship is one the problems still faced by those people in the struggle for respect of the autonomy and ethnic and cultural diversity.

ASSUNTO(S)

direito brazilian indigenous peoples constitutional paradigms Índios - tutela Índios - portugal - brasil legal capacity ethnic and cultural diversity collective subjects of justice constitutional civil law Índios - direito civil multiculturalism guardianship Índios - espanha - história legal pluralism

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