A autodeterminação quilombola na suprema corte brasileira : uma análise do processo judicial da ação direta de inconstitucionalidade n.° 3.239

• Autor(a) principal: Muniz, Lucas Pacif do Prado
• Data de Publicação: 2018
• Tipo de documento: Dissertação
• Idioma: por
• Título da fonte: Repositório Institucional da Universidade Federal do Espírito Santo (riUfes)
• Texto Completo: http://repositorio.ufes.br/handle/10/8846
• topic: Process; Symbolic struggles; Collective self-determination; Justice; Processo; Lutas simbólicas; Quilombo; Autodeterminação coletiva; Justiça; Direito Processual Civil; Direito e antropologia; Quilombolas - Direitos fundamentais; Quilombos; Ação judicial; 340

The objective is to describe the trajectory of institutionalization of the right of collective selfdetermination of quilombolas peoples in the Brazilian Law through the judicial process. The intention is demonstrate how this right foreseen in Convention n.º 169 of International Labor Organization, in force in Brazil, was seized by the agents of the legal field who acted in the process: on the one side as a right incompatible with the Constitution of 1988 and other internal legislation and, on the other side, as a legal resource capable of influencing the attribution of the normative sense of art. 68 of the Transitory Constitutional Provisions Act that provides for the territorial right of the remaining quilombo communities. The object of analysis that results in this dissertation is the direct action of unconstitutionality nº. 3.239 in ambit of the Federal Supreme Court, where the request is filed for the declaration of unconstitutionality of Decree n.º 4.887/2003, which establishes the procedures for identification, recognition, demarcation and titling of quilombos. It is a case study in which the electronic media of the judicial process were analyzed through the reading of legal pieces and visualization of the plenary sessions, with the recording and organization of the information obtained. The attention focus falls on the alleged material unconstitutionality of the contested decree, directly related to the right of self-determination of the remnants. During the study, it was found that the judicial process, for approximately 15 years, became an arena of symbolic struggles for the legitimate consecration of the conceptual definition of quilombo, an object opened since the resumption of debates, at the time promulgation of the 1988 Constitution, about which would be recipients of art. 68. There was a confrontation of two conceptual paradigms: one with a colonial basement established by the 1740 legislation and the other contemporary, elaborated by the Brazilian Anthropology Association in 1994. It was concluded that the Court legitimized the anthropological concept of quilombo and built the normative meaning of the right of self-determination of quilombola peoples, institutionalizing based in the elements self-definition, ethnicity and territoriality. With this, it established conditions for the effective access to territory to the remaining communities, as provided for in the 1988 Constitutional Charter.