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

91 Direito em Movimento, Rio de Janeiro, v. 16 - n. 2, p. 72-105, 2º sem. 2018 ARTIGOS each indigenous people.The indigenous community sees no need to spread dwellings throughout its land, physically occupy, but (…) the earth must be essential for well-being, alongside physical and cultural reproduction. It wants to maintain its existence and amplify the physical and cultural dig- nity of life through the guarantee of its physical environment, its habitat. 37 ” The choice of these terms, even though in an implicit way, points to- wards the theory adopted in the sentence on the temporal marker of this territorial occupation. Two theories on this subject stand out. The theory on ancient historical legacy defines that indigenous ow- nership is undefined by time. So indigenous earth would be that declared by them or recognized as such. The criticism that one can make of this theoretical current is that working with open concepts generates practical difficulties for anthropological enquiry. Beyond this, it entails unsure legal grounding since the definition of property becomes linked to the subjectivity of the Amerindian group, echoing chains of command which go back to long ago. Besides, it could lead to a battle which demarcates the whole American continent as indige- nous soil, since it is well known that they were the original owners. In this direction of thought, with authority José Afonso da Silva re- gisters the expression “traditionally occupied”, used in Brazilian law for the definition of indigenous lands and which similarly corresponds to the expression used by the Inter-American Court. “It does not signify imme- morial occupation. It does not mean immemorially occupied lands, being lands which they have occupied since remote times, which had already be- come lost from memory and, in this way, only these would be their lands. 38 ” On this subject the Supreme Court of Brazil set out in Pronoun- cement 650 that the demarcations of indigenous areas “do not extend to lands of extinct villages, although occupied by natives in the remote past. 37 Idem, p. 16. 38 Lands traditionally occupied by natives. SANTILLI, Juliana (Coord.). Os Direitos Indígenas e a Constituição . Porto Alegre: Núcleo de Direitos Indígenas e Sergio Fabris, 1993. p. 45-50.