Direito em Movimento - Volume 16 - Número 2 - 2º semestre/2018

84 Direito em Movimento, Rio de Janeiro, v. 16 - n. 2, p. 72-105, 2º sem. 2018 ARTIGOS For this very reason, the Inter American Court, in its judgment, in- dicated that: Amongst indigenous peoples there is a communitarian tradi- tion for a communal way of collective ownership of land, in the sense that property is not centered on an individual, but in the group and within the community. Indigenous groups, by the very fact of their existence, have the right to live freely in their own territory. The strong bonds of indigenous peo- ples with the earth should be recognized and understood as a fundamental base of their cultures, spiritual life, integrity and economic survival. For the indigenous communities, the relationship to the earth is not merely a question of possession and production, but a material and spiritual element which is to be fully enjoyed, bearing in mind the preservation of their cultural legacy and its transmission to future generations. As can be seen, the sentence acquired a naturalist model for justifica- tion 22 and makes it very clear that it is the State’s responsibility to ensure and make the right of indigenous peoples effective, likewise for the question of dominion over lands. However, in practice, “due to the reasoning develo- ped by state law”, there exists “difficulty in framing the idea of indigenous territory within the individualist limits of property law. For this reason, the modern State found itself obliged to establish norms adept at bringing the complex set of indigenous rights closer to the generic conception of law 23 .” What underlies this right is anchored in the fundamental principle of the juridical system, that which is equality 24 . This is to accept cultural option, the choice of a lifeway – be it indigenous or not – as deserving equal respect from public institutions. It is for the State to recognized differences and to defend the individual’s right to live according to their culture. 22 In opposition to Rawls’ political constructivism, exposed in A Theory of Justice , and in later works such as Political Liberalism and The Law of Peoples . 23 MONTANARI JUNIOR, Isaias. op. cit., p. 56. 24 DWORKIN. The Original Position , apud DANIELS. Reading Rawls , 1989, p. 52.