Estado de direito e reconhecimento de município «putativo» em terra indígena : análise do «caso Pacaraima» na jurisdição consitucional brasileira

Sumario: The purpose of this thesis is to examine whether the idea of a putative municipality should be recognized and applied to the. Pacaraima case. (Municipality located in the far north of the state of Roraima), considering that its area is in properly homologated – and constitutionally protected indigenous land. This questioning implies discussing the constitutional aspects of the overlap of legitimately created municipality on indigenous land. The ordinary legislative acts, like the state law that created the Municipality of Pacaraima, when they do not observe the constitutional dictates, will be considered unconstitutional and, therefore, null. However, there are situations in which nullity could bring with it unwanted social, political and economic reflexes, and it is therefore more convenient to exclude that legislative act, so that, even though its unconstitutionality is recognized, its nullity is not declared invalid. This is the case, for example, of the fiction that is conventionally called a putative municipality. In the foreground, as stated in Brazilian law, the idea of putativity would lend itself to preventing the effects of the annulment of a normative act, by conferring validity on the situation fictitiously in accordance with the Constitution. In the special case of the. Putative municipality, it was a thesis established by the Brazilian constitutional jurisdiction, specifically from the case in ADI 2.240 / BA (rel. Min. Eros Grau), in which, without declaring the nullity of the law Bahia, which created the municipality of Luís Eduardo Magalhães, acknowledged its unconstitutionality while invoking the. Normative force of facts. and the principles of legal security, reserve of the impossible and continuity of the state, to maintain the administrative status quo. In this thesis, in order to test the limits of this institute, we analyze the. Pacaraima case, related to the municipality of Roraima created in 1995 within the indigenous land. São Marcos.. It is understood that this new case, still sub judice, challenges the limits of application of the thesis of the putative municipality, as well as of the integrity of the indigenous territorial rights consecrated constitutionally. In order to achieve the general objective of the thesis, that is, the limits of the application of the putative municipality institute to the. Pacaraima case, to maintain it despite violating art. 231 of the Constitution, the text is delimited in three chapters, which depict the specific objectives of the research. The first chapter revisits the legal literature on putative municipality and the idea of putativity in Brazilian law. In the second chapter, we seek to reexamine the breadth granted by jurisprudence and literature to art. 231 of the Constitution, specifically the right to land and the respective process of demarcation and homologation of indigenous lands in Brazil. In the last chapter, the arguments favorable to and contrary to the possible application of the putative municipality’s institute to the legal situation of Pacaraima are opposed, considering the variables between this case and the jurisprudential precedents that have already applied it, mainly the indigenous territorial aspect (variable intervener). It is proposed to maintain the municipality of Pacaraima, not for the reasons adopted in the recent monocratic decision of the Federal Court of the 1st Region on the case, but for a relation of pertinence and compatibility with the indigenous land, in the same terms that occurred with the conservation units and the border strip. Lastly, no special authority is given to the judicial arguments set out in the lower court decision and no principle-weighting scheme is used, since it is understood that this is not a collision, but a limitation to indigenous territorial rights (article 231) (social, political, institutional) implicit in the institute of the putative municipality, as developed by the STF jurisprudence. Keywords: Putative municipality. Case of Pacaraima. Indigenous territorial rights. São Marcos Indigenous