O tempo da injustiça: colonialidade do poder e a disputa pela terra indígena Ñande Ru Marangatu (2005-2024)

Abstract

This thesis analyzes, from a historical and legal perspective, the dispute over the Ñande Ru Marangatu Indigenous Land, located in the municipality of Antônio João, Mato Grosso do Sul, based on the examination of Writ of Mandamus nº. 25.463/DF, pending in the Federal Supreme Court between 2005 and 2024. The central object of the research is the relationship between the coloniality of power, the performance of the Brazilian State, especially the Judiciary, and the fundamental right of access to justice of indigenous peoples, with an empirical focus on the trajectory of the Kaiowa people in the struggle for the realization of their constitutionally recognized territorial rights. The general objective of the research is to understand how the judicial slowness, the decisional instability and the outcome of the writ of mandamus reveal structural limits of the Brazilian State in guaranteeing material access to justice in indigenous claims. As specific objectives, the thesis seeks: (i) to analyze historically the formation of the Brazilian State and its institutions from the permanence of the coloniality of power; (ii) to examine the role of the Judiciary in the judicialization of land conflicts involving indigenous peoples; (iii) to assess the concrete effectiveness of fundamental rights and guarantees in the Ñande Ru Marangatu case; and (iv) to reflect on possibilities of overcoming the monist legal model, based on plural dialogue and proposals for institutional reconfiguration. The methodology adopted is of a historical-analytical and interdisciplinary nature, articulating contributions from History, Law and decolonial studies. Descriptive and interpretative methods were used, with critical analysis of legal, administrative and normative documents, understood as historical sources. The conclusion of the thesis demonstrates that the Ñande Ru Marangatu case constitutes a paradigmatic example of internal colonialism, understood as a historical expression of the coloniality of power within the Brazilian nation-state. It is evident that, although indigenous territorial rights are formally recognized by the Federal Constitution of 1988, their effectiveness is systematically made unfeasible by institutional practices that produce slowness, legal uncertainty and asymmetry between the subjects of the process. Access to justice, in this context, proves to be more formal than material, often becoming an instrument for the denial of rights. The research concludes the need to overcome traditional legal paradigms, defending the incorporation of intercultural perspectives, the recognition of legal plurality and the adoption of hermeneutical instruments capable of facing the historical inequalities that mark the relationship between the Brazilian State and indigenous peoples.