The legal and social effectiveness of rules relating to the demarcation of indigenous land

Abstract

The issue regarding the demarcation of indigenous lands is a topic that cannot be dissociated from a discussion about the current regulations on the subject, and their legal and social effectiveness. For the purpose of the research, a legal-sociological methodological approach is adopted, and with regard to the type of investigation, the legal-projective type was chosen in the Witker and Gustin classification. The research sources comprise doctrines, norms, in addition to data collected in the research. In summary, indigenous rights to land are original rights, that is, prior to the creation of the State itself, therefore, the demarcation of land through the State has a merely declaratory nature. Although the right of indigenous peoples to land is recognized, including constitutionally, the exercise of this right is relatively compromised due to conflicts, caused by the non-indication of the territorial extension of possession. There is a lack of effectiveness of the constitutional norm, which is linked to the structure of the administrative procedure to reach the delimitation of lands, but above all to the individualistic approach of the National State, which privileges the right to property to the detriment of land protection. It remains clear that legislation on the subject is insufficient, given the practical ineffectiveness, thus, it is necessary to implement public policies in favor of indigenous peoples to respect their cultures and lands, in order to give them visibility to the population in general, In this line of thinking, it is also necessary to have greater political representation of indigenous peoples, including indigenous peoples occupying relevant political positions..