Indigenous rights in the Brazilian constitution

gaps and limits in light of bolivia’s plurinational constitutionalism (2009)

Abstract

This article offers a comparative analysis of Indigenous rights under Brazil’s 1988 Constitution, highlighting gaps and limits that become clearer when the Brazilian framework is contrasted with Bolivia’s plurinational constitutionalism consolidated in the 2009 Constitution. The aim is to show that, although the Brazilian Constitution recognizes original territorial rights and grants procedural standing to Indigenous communities, it preserves state-centered allocation of political and legal power, making effectiveness highly dependent on administrative mediation and, above all, jurisprudential stabilization. The research employs a qualitative bibliographic and documentary approach, combining systematic doctrinal analysis with comparative constitutional interpretation of constitutional texts, related legislation, and landmark judicial rulings on demarcation and territorial recognition standards. The findings indicate that Brazilian case law alternates between robust affirmations of original rights and the persistence of interpretive and evidentiary filters that may constrain protection, whereas the Bolivian arrangement constitutionalizes mechanisms of legal pluralism and self-government subject to fundamental-rights safeguards. The article concludes that the comparison does not recommend institutional transplant, but rather identifies where Brazilian constitutional practice tends to retreat when disputes shift from recognition of rights to conflicts over competences, authority, and institutional coordination.