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

93 Direito em Movimento, Rio de Janeiro, v. 16 - n. 2, p. 72-105, 2º sem. 2018 ARTIGOS This happens not by how the native presents himself to the external world, which has no influence on the way he is determined. What defi- nes him as an indigenous person is the way he occupies and exploits the soil. The collective and common use of the soil and its resources – what the Court calls communal property – is the characterizing element. The differing trait for the definition of the indigenous person refers to the col- lective body and not to the individual. In summary, it is enough to be an indigenous group to deserve protection and the degree of integration to non-indigenous culture has no bearing on this. From this one draws the conclusion that the theory utilized to balance the case was the one for current occupation, since the possession should be verified as fact without the aid of the contingency of immemorial occu- pation, which presupposes an investigation into ownership which extends through time back to the discovery of the Americas. There are practical implications for this, being that indigenous lands are those occupied by indigenous people at the beginning of the demar- cation process, whether they are sufficient or not. Another consequence is that once their amplification is demarcated, if necessary, this will not result in a new demarcation process – in all of its declaratory nature and legal security – but will result in dispossession with the due indemnities for land, transfers and other benefits. 8. DEMARCATION AND RESPONSIBILITY The sentence under study makes it clear that the constitutional con- trol of Nicaragua for the demarcation of indigenous lands is domineering. With respect to this, the regime has ignored both appropriateness and opportuneness in the administration of public issues. Thus, when the State fails to fulfill its constitutional role in the de- marcation of these lands, there is a rupture in the juridical order by the state entity. For the cure of this illness, wound up in the mania of implementing rules, there must be a juridical remedy: not for the rule which seems invul-