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

90 Direito em Movimento, Rio de Janeiro, v. 16 - n. 2, p. 72-105, 2º sem. 2018 ARTIGOS To sum up, in this case the Court, accepting the incompleteness of the norm – since the Convention does not concern itself with indigenous ownership – admitted that this is not sufficient to guarantee the juridical safety of the natives and, in order to balance the question in dispute, parted towards the conjugation of the criteria of hermeneutics which, in practice, do away with the opposition between common law and civil law , at the same time revealing an important advance since both of these dimensions are aspects of Western juridical tradition. 7. INDIGENOUS REALITY The relationship with the soil permeates all indigenous culture: be- liefs, languages, customs, traditions and religions are hitched to the land where they live. For this reason, the “possession of a tribal territory is an essential condition for the survival of the natives. 36 ”This is what underlies the precaution of identifying and demarcating their lands as a premise for the exercise of other rights. It can be observed that, in the case being analyzed, the Court did not work with the dogmatic concept of indigenous land. This is referred to by the term communal property, defining it as the lands which the natives currently inhabit. In the wake of these words, the identifying elements of indigenous land (and for this reason they must almost always be in consistent) are, in fact, the adverb “currently” and the verb “inhabit”. Advancing in this con- cept one can define “currently” as a moment of soil occupation, the tempo- ral marker.Where the verb “inhabit” is concerned, as utilized, here and now, with present time, the link to time gives emphasis, removing the outsider’s right to demarcation on lands previously inhabited, as well as on those lands which would, by chance, be occupied in the future. Accordingly, to inhabit or to occupy “is to develop a relationship with a determined territory in agreement with the uses, customs and traditions of 36 RIBEIRO, Darcy. A Política Indigenista Brasileira . Rio de Janeiro. Ministério da Agricultura, 1962, p. 143.