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

86 Direito em Movimento, Rio de Janeiro, v. 16 - n. 2, p. 72-105, 2º sem. 2018 ARTIGOS What the Inter-American Tribunal understood was that “indigenous possession presents its own characteristics, those which differentiate it from the usual concept of possession in civil law 26 .” It is not the demar- cation which will create traditional ownership or a prevailing habitat . It is that ancestral ownership which deserves full juridical protection since it maintains cultural and ethnic identity for the group. As can be seen, the demarcation procedure has the nature of declara- tion and is not constitutive by itself, since it only recognizes an active and pre-existing juridical situation, which translates as “a right which is older than any other 27 .”That is to say, the State does not create indigenous land; it merely attests to its existence. By consequence, “demarcation, thus, is the act of simple recognition of an originary right of indigenous peoples. It is not an act which is constitu- tive of rights, but an administrative act which declares indigenous occupa- tion and its territorial limits, as well as establishing invalidity for acts and titles referring to its occupation, domination or ownership 28 .” Accordingly, it is for the State to be responsible for indigenous peo- ples with a simplified proposal, indicated by the sentence under study, as- suring those people the formal recognition of their lands. 6. PROGRESSIVE HERMENEUTICS The exclusively private and individualist dimension of property law, utilized by the American Convention – in Article 21 – is not adept at con- templating the collective and cultural aspects involved in the relationship of the indigenous peoples with the soil and could, upon first reading or in 26 ARAÚJO, Ana Valéria et al . Povos Indígenas e a Lei dos “Brancos” : O direito à diferença. Brasília: Minis- tério da Educação, Secretaria de Educação Continuada, Alfabetização e Diversidade; LACED/Museu Nacional, 2006. 27 STF, Pet 3.388, Rel. Min. Ayres Britto, j. 19.03.2009 28 VILLARES, Luiz Fernando. Direitos e povos indígenas . Curitiba: Juruá, 2009, p. 124.