Indigenous rights: an instrument for regulating the relationship between law, state and indigenous peoples Auriclia Rossana

Silva Freitas Abstract: This article examines the invisibility of indigenous peoples against the Brazilian legal framework and how indigenous peoples in the constitutional process became protagonists in specific articles concerning their rights, based on the approach of a historical determinants that enable the visualization of this scenario tense , full of contradictions and conflicts, trying to establish the relationship of indigenous peoples with the State and with the surrounding society, establishing two important legal frameworks, the process and application of new Constitutional rule of law, and international law, based on ILO Convention 169 (International Labour Organization), bringing out a vision of indigenous peoples, in addition to the textbooks and the media universe, walked up to a condition where there is a denial of these as human persons, the ethnic emergence and its role in building one multicultural state. [1]

Contents: Introduction. 1. Indigenous Peoples: Formatting a historic indigenous rights. 2. The City of Indio in Constituent Process. 3. Indigenous Peoples: Subject collective rights and producers of legal rules themselves. 4. The legal relationship with the State and indigenous peoples. 5. Right to autonomy: Protagonists of Indigenous Peoples. 6. Considerations. 7. References.

"Someone should review, write and sign the records of the past before the time pass all the shallow." Cora Coralina [2]

Introduction Once said Sub - Commander Mark: [3] "We are an army of dreamers, so we are invincible." With this in mind a possible dream, who believes in indigenous cause as a cause that should be collective, that I decided to write this article, aiming to provoke a legal discussion on the topic, presenting the 1988 Constitution as a dividing element water in the new way of thinking about the relationship with indigenous peoples in our territory, recognizing them as a group / ethnic diverse in its culture and how the original inhabitants of this land that intitulamos of Brazil, right, rights holders and specialty specific. The protection Native hitherto was based on mere recognition of its existence expanded to guarantee the right to difference and the preservation of their identities. Through his role indigenous peoples were staking literally their spaces.

The framework of information constitutes memories that need and deserve to be recorded, reproduced and shared with those who came after or even those yet to come and have not had the opportunity to experience this historic landmark has determined that the past, present and future entire communities.

It is known that for a long time, one could usually see in textbooks, and even in Brazilian history, said that the Indian was not enslaved by not adapt to the organization of labor imposed by the colonizers, now, the situation did not give them any condition to preserve their land and thus maintain the way of life which had hitherto been accustomed, before that, left them no other choice but to make their cheap labor, as a way to keep the connection with their territories came to live at the mercy of the will of the farmers as these, if displeased of services could turn to the courts claiming that their land had been invaded and possibly could eviction alleging "trespass on private property," this dynamic imposed by so-called "owners" of the land, entire communities were evicted by court order.

The fact is that throughout history we have been passed a somewhat distorted picture of what actually outside this process of invasion of indigenous lands and especially the form of domination of these peoples. Are still many difficulties of understanding about the way they live or are organized, instead of doing justice to the achievements of indigenous peoples still prefer to treat them as bad, lazy, violent or romanticized, unrealistic.

From the Constitution of 1988 the situation of inequality which underwent these people began to be revised and some of the many problems created at that time were mitigated / minimized (recognized as problems), ie aquiinaugurou up a new paradigm for indigenous peoples of Brazil, which began to experience a mobilization process for the recovery of their traditional territories and the reassertion of ethnic identity, particularly the Indians of the Northeast (Souza Filho, 2004, p. 98), due to the institutional recognition of ethnic diversity Brazilian-cultural society as a fundamental right.

For some critical area Brazilian law never bothered to clarify what it means to emancipate themselves from a condition ethnic, starting from the principle that: "Until the 1988 Constitution, was not Indian, Indian was up, like a child whose unappealable target is to become an adult. The premise unabated for centuries was that the Indians sooner or later cease to be Brazilian Indians to become like any other "(Ramos, 1991, p. 04).

1. Indigenous Peoples: Formatting a historic indigenous rights

Studies claim that indigenous people in Brazil are divided into various ethnic groups, which differ from each other due to their cultures, languages and social and political organizations specific. Despite a few quirks, this whole Indian society has elements in common and one of the most significant in the history of life of these people is related to the long and difficult process of economic exploitation, social and cultural experienced different historical contexts.

According to census data conducted by the Brazilian Institute of Geography and Statistics (IBGE, 2010) Brazil had a population of 817 963 indigenous corresponding to 0.5% of the total population. Currently it is believed that these data oscillated showing considerable growth of this population category, for example, and point out two different phenomena.

First, confirm a noticeable trend of increasing indigenous peoples, which, according to experts, has grown on average 3.5% per year, which corresponds to more than double the average of 1.6% overall Brazilian population (Azevedo , 2000, p. 102). In a second step we could say that this increase is also related to the fact that a growing number of individuals began to take their indigenous identity autoidentificando within this category, instead of falling into the category of "mulatto" in this same perspective adds SANTOS (2012),

"The current Indian population of the Northeast corresponds to 20.13% of the indigenous population of Brazil, and the North and Midwest of the largest concentration of Indians in the country with 47.55% and 20.27% respectively. Northeastern states, Pernambuco is the most populous indigenous, with a population of 34,689 Indians. It is therefore the 4th state indigenous population, coming soon after Amazonas, Mato Grosso do Sul and Roraima.

Ethnic composition of the Northeast identifies a variety of large groups. It is a multicultural region. In this scenario appear also indigenous peoples. " (SANTOS, 2012, p. 11)

Second (Virgil, 2008, p. 41), the presence of indigenous people in Brazil, in demographic terms, is the smallest observed in Latin American situation, contrasting sharply with other countries such as Bolivia and Guatemala where, depending on the criteria used, the participation indigenous population total can be detached or even predominant. This fact, however, is far from meaning that, in Brazil, the relevant political, social and cultural development of indigenous peoples is negligible.

During the expansion process of the Brazilian nation-state, as it was designed, does not admit the existence of social groups with their own cultures and identities. Nothing specific could be, everyone should, even if forcibly assimilate and live according to one generic identity, integrated into the

national community, as if all the ethnic and cultural difference ceased to exist and became a single homogenized culture (Pacheco, 2004 p. 35th).

Now, here we clearly see how and to what extent was stimulated the integration of multiple cultural and legal systems on the grounds of equality of all individuals before a common good or common law.

In this case, history shows us that if rehearsing a speech protection to indigenous rights that recur in numerous laws, charters, ordinances and permits, throughout the colonial period, monarchical and republican, a situation that only begin to change with the Constitution of 1988, moving from the theoretical to the realization of indigenous rights. This protection was rhetorical, because even with some legislation granting land rights to indigenous people, they had no effective enforcement (Pacheco, 2004, p. 47). Thus gradually been building up legal institutions that might fit the indigenous populations across the territory historically called Brazilian.

It is noticed that, over the years, the policies pursued by both the SPI (Service Protection Indio) and by the National Indian Foundation, did not consider the increase of the Indian population, their social reproduction and adaptive modes for various environments . In the early twentieth century, with the Republic, Brazil now has a protectionist government action, based on a pretext welfare, which happens to have restrictions on civil rights of indigenous (Virgil, 2008, p.14).

It is what is observed in the 1916 Civil Code, which treated the natives to minors (between 16 and 21 years), to determine those denominated forestry were classified as relatively unable to perform certain acts of civil life (CC 1916 art. 6) and were therefore subject to a tutelary regime.

2. The City of Indio in Constituent Process

In 1985 at the beginning of the Sarney government, there was a whole political mobilization to constitute a National Constituent Assembly, were developing the project trough north, and there were these very secret project, and others who were eyeing the ongoing mining on indigenous lands . In this period, the CIMI (Indigenous Missionary Council) discovered and denounced the government of the new republic was militaristic forces of continuity with that entity delimited radically his stance in defense of indigenous cause and went to the front of a battle that has its ups and downs, but continues on. The State on the other hand, reintera persecution of the institution, and all segments that have sought to support the indigenous cause, allying the entity of the Catholic Church.

Many were the facts involving Indian agents, like roads and approaches to the black boats on the river, just around 1985 and 1986, agents of CIMI, Francisco Loebens and Philibert, were arrested in the river and were escorted black and led to detention for being invading indigenous lands, these episodes marked a high point in the body and in the villages, have approached the call for a constituent, and CIMI like organ attached will CNBB (National Conference of Bishops of Brazil) forms alliance with important church leaders and a group of indigenous anthropologists, which adopted the methodology and strategy of mobilizing indigenous people to reflect on their citizenship within Brazil.

The reflection part of the question: What is the place of the Indian? And the Indians have even some wondering own candidates, but that did not work at all, but the joints state, indigenous assemblies and joints policies on all fronts have produced very positive effects, when it came to the consolidation of a legal framework consistent for the defense of indigenous peoples.

In the book Indigenous Peoples and Constitutional 1987 - 1988, published in 2008 authored by Dr. Rosane Lacerda, lawyer advises the entity reveals that the natives in their work together to constituents, expressed the hardships of their communities, their villages and their regions and spared no effort to ensure that the ANC (National Constituent Assembly), this does not support the proposals that violated their rights. Thus one of the indigenous people's representative Apurin Antonio Apurin was expressed,

"What is our destiny going forward? The Indian, as a whole, needs political force, which the constituents must recognize the massacre of their ancestors, today we must be careful that this does not happen again in the future.

(...) We intend to enforce within the constituent our respect, our Indian people, in defense of our land. (...) We should be more respected in the new constitution should ensure this. There is a law, but this law is not enforced, it is the Statute of Indio.

(...) What brings us here is just that: it is that we are respected, that the laws are complied with (...). " (Lacerda, 2008, p. 62)

This happened in the fights caught by the Indians, and that much of the time was a source of frustration at the rejection of proposals that were submitted to the ANC. The Constituent process lasted almost two years, in a climate of much animosity, tensions of the most diverse and contradictions of the most varied, however, had a differential, which determined and led the Federal Constitution of 88 for a striking result and deeply progressive there was mobilization, was NGOs

(Non Governmental Organizations), political parties, churches, social movements, even some business groups in this process.

Groups were hungry for freedom, had to want freedom, freedom that is dammed off throughout the military dictatorship, which wanted to defend positions, leaving the historical invisibility, raising flags of various struggles. This is the period that marks the catharsis of a company clamoring for freedom and it could be argued topics as: black rights, freedom of religion, sexual orientation, agrarian reform, indigenous cause, etc..

The Brazilian Constitution that was promulgated in 1988 is undeniable, even by those who do not enjoy the process, known as Citizen Constitution, for it is a consequence of movements and counter movements, sometimes advancing and sometimes retroactively and may be cited in the case of advances, debate and a new conception of the rule of law regarding the Brazilian indigenous issues and environmentalist, and in case of setback in the Brazilian elites and the Church made their maneuvers to no progress in agrarian issues and sexual orientation.

Second, Iara Pietricovsky (2008), in his text, "the 1988 Constitution and Indigenous Peoples Brazilian Democracy" available at INESC discussions took place in a very intense and heated. For example, in the debate on agrarian reform, there was a scene emblematic struggle within the Green Room of the House of Representatives, where the movement of large landowners and the landless and allies were positioned in blocks, one facing the other, an aggressive debate that almost turned the place into a battlefield.

As we have said so far, the space guaranteed in the Indian Constitution is, without a shadow of doubt an expression of society's advancement towards Brazilian relentless pursuit of effective democratic. With regard to the legitimate and legal recognition of the rights of indigenous peoples there is no way to disregard this milestone, since since the adoption of the proposal to hold a Constituent Assembly in 1985, indigenous organizations and support this cause, and lawyers, articulated to discuss the issue. It is known that were produced proposals for studies in the field of international law, laws of innovation, all presented to the Brazilian government through the Minister of Justice and the President of the Commission for Constitutional Studies, Afonso Arinos, at the time appointed by the President.

On occasion, documents epitomized the aspirations and demands of indigenous peoples were also prepared and sent to the National Congress, and the impact of intense discussion within civil society organized in conjunction with the indigenous movement, jurists, academia and media.

Among many guided discussions, some questions were incisive, like the indigenous lands that makes us realize that after 25 years, there was a slow advance that there is still more important part of these peoples deprived of their rights.

3. Indigenous Peoples: Subject collective rights and legal norms producers own

Before we even get the new legislation is necessary to understand the processes leading to the result that the Federal Constitution of 88, it is necessary to say that after consolidating the process of colonization through coercion and constant violation of fundamental rights and originating with the total dispossession of indigenous lands by the Empire and the forces of the republic, who always normatizaram towards an Indian policy have always prized by assimilation, integration of indigenous peoples.

There was a vacuum in both the 1824 Constitution and the Charter Republican 1891 where the rights of Indians want is mentioned or recognized only in the 1934 Constitution, so very recently, is unveiling articles that address the interests of the Indians, establishing the protection of these rights in specific regard to the ownership of forest lands in them find themselves permanently located (Article 154).

Evidenced in this legal path, the intentionality of institutionalizing a policy of integration of forestry considered (those who lived in the jungles lived in constant contact with nature and away from the "civilized" society).

Thus it is established that the mode of organizing themselves, beliefs, customs, these populations are out of the national community, being forced to integrate these people establish a society imposed by violent contact, or attracted by "advantages" that always resulted in the imposition the surrounding society.

This view was perpetuated in the legislation that followed until the Indian Statute (Law n. 6.001/73) which shows in its Article 1 the defense and preservation of the culture of indigenous communities, although it contradicts, in writing that follows, when points the smooth and gradual integration into the national community as an irreversible process. Although the statute is a contradiction in whole law, yet it is that people find their defense in matters that are not yet regulated in the text of the current constitution, as noted,

"Art 2 Meets The Union, the states and municipalities, as well as the bodies of their administrations indirect, within the limits of its authority, for the protection of indigenous communities and the preservation of their rights ":

II - assisting Indians and indigenous communities not yet integrated into the national community, (...)

IV - to ensure the Indians the possibility of free choice of their livelihood and subsistence, (...)

Indigenous peoples in Brazil, always had a legal treatment connected to the idea that these are barriers and / or trinkets trying to procrastinate the development of the country, for always being opposed to capital so that it flies on what they still left their land, their culture and consequently of their lives, treating them sometimes so judgmental without a real concern to your needs, with their "being different" this being mistakenly confused with a supposed inability to exercise their own rights , a characteristic that has always been present in the legislative process indigenous.

In 1988 with the advent of the Constitution was the breakup, in part, with some of these designs, since many of the myths built from the sixteenth century regarding indigenous defiled such legal thinking Brazilian, who remain today, being one of the strongest view that indigenous people are incapable and therefore subject to guardianship, there are some controversies listed by scholars in the field. This treatment with indigenous issues instead of guaranteeing rights have proved inefficient and often factor stagnation access to fundamental rights.

The indigenous law, has historically been linked to aspects which involved the extermination, integration or assimilation, as predicted by Darcy Ribeiro, and only in 1988, on the occasion of the promulgation of the Constitution, that is settled, or we can say, that recognized the rights originating and expansion guarantees. These standards are actually a new paradigm for the current legal framework, changes in the legal treatment evidenciandouma indigenous reaching this new dimension, namely the recognition of native rights, thus providing,

"Art 231. Indians shall have their social organization, customs, languages, beliefs and traditions, and the rights to the lands they traditionally occupy, incumbent upon the Union to demarcate them, protect and enforce all of its assets.

Article 232. The Indians, their communities and organizations have standing to sue to defend their rights and interests, the Public Prosecution intervening in all stages of the proceedings. "

Thus, the text in question puts in evidence the right to difference, recognizing the social organization of indigenous peoples, thus preserving the right to be and remain as Indians, subjects of rights originating and / or natural element that is considered paramount and already was present in the lives of the people antesda very institution of the regulatory regime proposed by the current constitution.

In this perspective, in order to realize and expand the level of recognition of native rights, is pending in Congress Bill n. 2.057/91, which advocate the protection extinoda reductionist appointed by the Indian Statute provides for the creation of an Indigenous Societies Statute, recognized as culturally different communities because their Amerindian roots, but holding a guardianship holistic (emphasizing the whole taking into account the parts and their interrelationships), respecting the necessary peculiarities, and one of the innovations of the new statute is the recognition of the full civil capacity of the Indians, in order to ensure the effective exercise of their rights. Is that one of the reasons for the strong too postponement of approval of the new statute?

However, it is clear that the process objectified state, eradication of indigenous cultures, was not successful. Despite all the obstacles presented, communities have resisted tirelessly until they were adopted by the CF of 88, and each day that passes, have obtained more encouraging results, the application for recognition by a peculiar lifestyle, explains Legal adviser at the Center for Indigenous Rights, in its article entitled "Cultural Rights of Indigenous Peoples - Aspects of recognition," published in the book "Indigenous rights and the Constitution" below

" In light of the current Constitution, therefore, indigenous peoples are no longer considered endangered cultures, destined for incorporation in the so called national community, similar to what had always been the spirit governing the Brazilian legislation since the beginning of the colonization process in our country. All previous legislation contained specific references to integration or assimilation inevitable and, moreover, desirable to the Indians by the Brazilian society. The new mentality ensures space for interaction between people and the surrounding society on equal terms, because it is based on the guarantee of the right to difference ". (Pig, 1993, p. 228).

As was said previously the Federal Constitution was a pioneer in recognizing this diversity, however, it is noteworthy that even today there are cases of indigenous rights established in the same Constitution that were not even applied, since still rely on legal regulation.

4. The legal relationship with the State and indigenous peoples

Although Brazil is a signatory to several international agreements which also regulate and establish the relationship between the State and indigenous peoples, such as the Convention 169 of the International Labour Organization (is the oldest binding international instrument that deals specifically with the rights of indigenous peoples and Tribal in the world), and 88 of the Brazilian Constitution, there remains a relationship of patronage and tutelage with indigenous groups and the regulation of major items that define the territorial rights are constantly violated. The Indian Statute, is known as the Law of 1972 expired with respect to the constitution and its new version is ready it should, live from table to table, commission on commission, within the National Congress, becoming increasingly Mercy the interests of capital with their representatives in Congress.

It is common in the state, rather than complete and approve the new Indian Statute, creating what could be called "separate legislation" which deals with aspects of indigenous life and without establishing a systematic line of what is provided for in the Federal Constitution 88 and Convention 169 of the International Labor Organization. Lately the creation of an Ordinance by the Ministry of Justice and the other by the Attorney General's Office, show disrespect and lack of commitment of the State to regulate adequately what could become an indigenous legislation [4] establishing a process of hearsay communities in situations concerning their lives.

This state elitist and bourgeois inspiration not never understood that indigenous peoples should have their autonomy respected and that their right is intrinsically linked to the first right which must be established, the right to life, but the state neodesenvolvimentista, prioritizes the which undoubtedly is the denial of this right, the development over the sacred right to life and strives to safeguard the individual property rather than the right to collective ownership, thus showing that the consecration of indigenous rights is increasingly difficult, however, the right is something made from various elements and it can also be established from the mobilization of groups involved.

We can see the courage and property of this people to express themselves on the mechanisms to ensure the security of their rights, and daring people to confront these elites, the state, the colonial powers in seeking their historical rights and other rights as human rights different ethnic cultural unfortunately has cost the lives of many leaders as stated SANTOS (2012),

"After more than 500 years since the invasion / colonization of Brazil, indigenous peoples continue to be persecuted by farmers, settlers and governments who try to steal their land."

Indigenous leaders are partakers of their role and their representations have the clarity of focus that symbolize as subjects of rights specific and differentiated. Thus, people's chief Marcos Xucuru gives his testimony during the course of the twentieth People's Assembly Xucuru [5] , to the view on the relationship of indigenous peoples with the State,

"I want to say that our relationship with the state, has always been difficult, but it is necessary to relate to the organs, and it is complex and confusing for some ministries, because there is something well defined, but the basics are provided in the Indio Estatudo , CF in 1988 in international conventions such as Convention 169 of the ILO (International Labour Organization) and specific laws that deal with aspects of our everyday life, like the laws governing education and health. It is always very confrontational, and the worst is when it comes to crimes, there the beast catches, the State often uses laws to criminalize our people, our leaders, especially when we are running the right brings our sacred land. "( Luidson Cacique Marcos-Marcos Xukuru Pesqueira, Pernambuco, 2012.

This statement reflects a new era, also of contradictions, but expressed a legacy of resistance struggles and are heirs to a new conception of access or guarantees of rights established by the Constitution of 88 citizen.

These leaders come within the ambit of the constitutional process, forged in the struggle for land and within its people as examples of leaders who excel in ensuring the right in their stories, so they point in their practices a relationship with the state. Although they are always threatened by that State patronage, elitist and eminently structuralist, for questioning, since this state does not meet existing multiculturalism, resulting in a certain readiness on the part of indigenous peoples to question how cold and exclusionary that that State imposes so that this is a historical injustice to these populations.

Therefore this representation of the People Xucuru is put here, not as one to exercise this redemption of debt, but as an example of a people in the Northeast who has resisted over the last 500 years, before an intense process of criminalization of leaders, despite adds Santos (2004)

"Contrary to the logic of Professor Darcy Ribeiro, the prophet of a legion of followers who advocate the disappearance of long-term indigenous in the oldest areas of colonization such as the Northeast, indigenous peoples in Pernambuco and Region continually complained about their pursuits , violence and disrespect in which they live, and landowners faced the invaders of their territories with the omission or connivance of state officials, requiring the government to recognize and respect and guarantee of their historical rights: the demarcation of their lands, a health and education differentiated finally respect their own forms of socio-cultural organization. " (SANTOS, 2004 p. 06.)

Thus, with regard to respect indigenous rights, the contemporary state and its right always denied the possibility of living in the same territory, in different legal systems, which is why the state entity filed and coercively imposed rules, ie without prior consultation the Indians, who sound the most

interested in the issue. This fact turned out to influence the common law, ie the law that every indigenous community has the right first, many influenced by these customs impregnated by the ancestors. It would be a kind of specific conduct rules for people without coding, we can classify it as the unwritten law.

Souza Filho (1992, p.20) points out that, while the construction of Brazilian law remained as lacking any legal manifestation of indigenous societies, institutes themselves were built for them, whose set-called Indigenous Law.

5. Right to autonomy: Protagonists of Indigenous Peoples

During a considerable many indigenous submitted to the control of the plantation or the Jesuits sought to recover their liberty through violent uprisings, others articulated complex movements of protest and resistance. But the strategy more effective alternative to confrontation and submission resided in collective escape and the reconstitution of society in distant regions of the conquistadors in the sixteenth century, many groups have abandoned its territory and went to remote areas with the main goal to restore their autonomy , does not cost us repeat and remember the impact of this process, in the history of these peoples as noted Santos (2012),

"The process of" occupation "of the Brazilian territory, it can be said, that was a big crime against humanity, because in fact, there was a territorial invasion, coated with a violence against the indigenous (native people), a true blood bath, an ethnicide a form of desterritorialidade pervesa. " (SANTOS, 2012 P.02)

You can also see how the Indians passed the condition of subjects nonexistent, invisible to the protagonists of the national indigenous scenario, which considerably altered the context emque live and their ability to interfere in defense of their own interests and rights, but the elites of the capital continue within the territory forcing them to continue a historical invisibility.

The rights of indigenous peoples, now based in the Constitution of 1988, were being conquered and matured over the course of a story is not always fair not to say, just nothing. This panorama is being gradually modified to give rise to a collective indigenous rights, which generates visible and leadership exercised by indigenous peoples today, not representatives, but with other sectors of society that have been and are partners in the journey, seeking more and more to put the law into practice, not to mention the difficulty still exists regarding the application of factual legal guarantees by state agencies responsible for the enforcement of the legal provisions. It is primarily the formalism of our institutions and their rules.

It is observed that, in practice, the legal discourse does not always coincide with the diversity supported by the Federal Constitution, the specific duties established by the current legislation went through a long process of transformation there is still much more to do. By assigning them "special rights" the Constitution discriminates positively Indians. Not equate simply to other Brazilians, or omit their specific rights.

To Pascual (2003, p. 39), positively discriminate means to ensure special rights ace differentiated minorities as a condition for effective relations more equitable with other Brazilians, and implement appropriate compensatory policies.

Even in the face of a challenging scenario says Dom Pedro Casaldliga: "the indigenous cause is the largest, most inveterate debt that our America has, the more radical debt, even internal, the innermost of our being and our history."

6. Considerations

The current situation points to the urgent need to overcome old prejudices, considering especially the experiences of role of indigenous peoples in Brazil and Latin America, which resulted in significant achievements in positivation rights, whether in the Constitution, is in terms of international rights recognized to them.

It is unfortunate and absurd that in the XXI century, the Indians are still not seen as citizens fully capable of determining their own wills, an organ of state is her guardian and responsible for brokering (authorizing and disallowing) the numerous contact relations in that are already effectively involved. The condition of wards hinders their free political expression, the direct administration of their territories, their access to public services, the labor market, the official lines of credit. Besides reducing the capacity of civil Indians, guardianship is a barrier to self-management of land and projects for the prospects of future generations indigenous.

Currently, the biggest challenge, environment, indigenous rights is not only in its legal recognition, but its application in this case, it often shows slow and morbid. One of the tools that can greatly guide this intervention is the ILO Convention 169 which brings as guiding proposal opening the way for indigenous people to pressure governments to implement their rights and to mobilize other international pressures.

Besides seems urgently needed a sudden change of attitude on the part of the state on the indigenous cause. State that we are playing all the time be a country where there is room for everyone. So where is the place of the rightful owners of this land? It seems that the facts do not correspond with the speech, observe,

"The Brazilian government has no policy for indigenous peoples. The Brazilian treats indigenous peoples as enemies of war. Are remnants of a war of extermination process, not yet signed a peace treaty between the Brazilian and indigenous peoples. " (Lacerda, 2008. P 192)

It is known that a bit has been done, over what should be clear is that the debt to these people does not stop here. Statistical data from that part of the population resistant to the approved land seem to cause a feeling of discomfort? Yes, that's a fact, for many of those who embrace the indigenous cause at some point have the impression to be sailing against the tide, to realize, opposite to the interests of big capital, the so-called "developing" economic and political alliances that indigenous peoples are the least account, even on the brink of genocide. It is essential that society in general aware of the true situation indigenous peoples and also understand that this must be an irreversible process in our country. And yes this is a problem at all.

Remains the challenge of developmentalism contradicting the lives of indigenous peoples either by colonels, with their masks recent or PACs (Growth Acceleration Program) that meet the interests of this great capital, and are implementing hydroelectric dams on Indian lands, esbulhos new land as the case of land in Par chest and the recent case of Belo Monte Dam, the case of Kaiwa Guarani in Mato Grosso do Sul and walks the case of the Guarani living on roadsides in Parana, all these cases, being driven by vested interests of transnational capital driven by corporations that are often not visible to the eyes of the population, however it is worth highlighting the strength of these people facing these struggles. Yes this is an instrumental force unquestioned for this confrontation, this strength that comes from the heart and the ground where inhabited and inhabit these warriors.

In fact, the Indians are guided by a cosmogony which also differ from the Western Cartesian logic that guides both the state and Brazilian society. And it is this religious force, seeing that even the state does not have complied with the deadline given by CF/88 that all indigenous lands be demarcated in 5 years after the approval and publication of the Constituent Assembly, they continue to persist and fighting for their rights constitutional access to their traditional lands and their own ways of governing their territories that are always at odds with agribusiness, with the PAC, which shows the rottenness of Capital.

It is important to also highlight what Professor Dr Paulo Bessa Antunes when referring to Articles 88 of the Constitution which deals with indigenous land claims,

"The 1988 Constitution did not create new indigenous areas. Instead, merely recognize the existing. Such recognition, however, not confined itself to indigenous lands already demarcated. areas demarcated obviously did not need the constitutional recognition as at the level of constitutional legislation, were already affected indigenous peoples. What was done by the Constitution was the recognition of factual situations, ie, the Basic Law, regardless of any provision of lower hierarchy, set criteria capable of providing recognition Legal indigenous lands. created right is not new.

We must be attentive to the fact that indigenous lands were owned by different ethnic groups, due to the incidence of primary law, ie law precedent and superior to any other that eventually may have formed on the territory of the Indians. The demarcation of the land is exclusively the function of creating a spatial delimitation of indigenous ownership and oppose it to third parties. The demarcation is not constitutive. What is the indigenous law on their own land is the Indian presence and linkage of the Indians to the land, whose recognition was made by the Brazilian Constitution. "(Antunes, 1988, p. 02)

It is through this understanding legal, aggregate historical memory, that groups can socialize transmit information symbols and values of their cultures, in order to perpetrate that always respect the difference and exalt the principle of otherness among all peoples.

References Antunes, Paulo Bessa. Public Civil Action, Environment and Indigenous Land, Rio de Janeiro: Lumen Juris, 1998. Athias, Renato ; PINTO, Regina Pahim (Ed.). Indigenous Studies: Comparisons, interpretations and policies. Justice and Development Series. Sao Paulo: Context, 2008. Azevedo, Martha . Censuses and "Indians": recognize and difficult to count. In: RICARDO , Carlos Alberto (Ed.). Indigenous peoples in Brazil - 1996/2000. So Paulo: Social and Environmental Institute, 2000. BRAZIL . Constitution of 5/10/88. Updated with the Constitutional Amendments Enacted. BRAZIL. Brazilian Institute of Geography and Statistics / IBGE. Estimating demographic. Rio de Janeiro. IBGE, 2010. DIRGUES, Junior, Manuel . ethnicities and cultures in Brazil. Rio de Janeiro: Brazilian Civilization 5. 1976 edition.

Freire, Carlos Augusto da Rocha (ed.). Memory SPI: texts, images, and documents on the Service for the Protection of Indians (1910-1967). Rio de Janeiro: Museu do Indio - FUNAI 2011. HECK , Dionisio Egon; SILVA , Renato Santana of; FEITOSA, Saulo Ferreira (ed.). Indigenous people: those who must live - Manifesto against the decrees of extermination. Brasilia: CIMI - Indigenist Missionary Council, 2012, 192p. LACERDA, Rosane Freire. Difference not Disability: The Myth of Indigenous Trusteeship. Sao Paulo: Barana, 2009. __________.Os Indigenous Peoples and Constituent: 1987/1988 . Brasilia: Indigenous Missionary Council, 2008. Pig, Ana Valeria Nascimento Araujo . Cultural Rights of Indigenous Peoples - Aspects of its recognition. In: SANTILLI, Juliana. Indigenous rights and the Constitution. Porto Alegre: NDI / Sergio Antonio Fabris, 1993. p. 225-240. OLIVEIRA, Kelly. Warriors Ororub: the process of political and symbolic elaboration of indigenous people Xukuru Dissertation in Communication. Joao Pessoa: UFPB, 2005. PACHECO, Rosely Aparecida Stefanes . mobilizations Guarani - Kaiow andeva and the (Re) construction of Territories: (1978-2002) New perspectives for the Indigenous Law. Thesis (MA in History) - UFMS, Golden, MS, 2004. RAMOS, AR The Rights of Indigenous People in Brazil: at the crossroads of citizenship. Anthropology Series. National Seminar: The protection of human rights at the national and international levels. Brasilia, June, 1991. SANTOS, Jose Roberto Saraiva of . Truk People in the hinterland of Pernambuco: the "victims" have become protagonists in processes of deterritorialization and reterritolializao. Paper presented to the Seminar LEC-GEO 2012.2 of the Federal University of Pernambuco. SILVA, Edson Hely. "Indigenous Resistance in the 500 years of colonization." In: BRANDO, Sylvana. (Ed.). Brazil 500 years: reflections. Recife: Ed UFPE, 2000, p. 99-129. SOUZA SON , Carlos Frederico Tides . Indigenous Peoples and the difficult paths of intercultural dialogue. In: CONPEDI, Manaus, in December 2009. __________. Resurrecting Indigenous People to the Right . Curitiba: Juru, 2000. Virgil, Hezekiah. For a right to be different: criminal legal situation of indigenous prisoners in Dourados-MS. Monograph (Ciencias Juridicas) - UEMS, Golden, MS, 2008. References electronic http://www.boaventuradeSousasantos.pt/media/pdf/Estado_Direito_Transicao_PosModerna_RCCS30.pdf http://www.conpedi.org/manaus/arquivos/anais/bh/carlos_frederico_mares_de_Sousa_filho.pdf

http://www.inesc.org.br http://www.planalto.gov.br/ccivil_03/Constituicao/Constituiao.htm

Notes:

[1] Work guided by Prof.. Drando Fbio Henrique Rodrigues Sousa [2] CORALINA, Cora. Poems of the alleys of Gois and Other Stories . 4. Ed Circle Book, p. 9. [3] Subcomandante Marcos, leader of the Zapatista Army of National Liberation (EZLN), broke a silence of two years for criticizing the war against drug trafficking Government of Philip Calderon, who considers a "deal" that will destroy Mexico. The same was speaking as a leader in Chiapas Mexico. [4] This designation is used here to indicate the legal actors who have worked more directly on indigenous issues and therefore have specific knowledge accumulated over the issue. [5] The Assembly of Roma happens every year and besides having great significance for all of the community, is also space normalization of the modes operandi of the community and this is from the actions taken are evaluated and there is a plan for action the following year, before a collective reflection between the leaders and the people in general.