Jurisdição constitucional e as comunidades indígenas: o caso raposa serra do sol à luz da crítica ao ativismo judicial

Abstract

The aim of this study was to analyze the judicial activism manifested in the decision of the Supreme Court in the People Action No. 3388, which decided for continuous demarcation of the Raposa Serra do Sol indigenous land. Literature review and analysis of case law are used as foundation to, in the first chapter, introduce the concept of Leader Constitution and the crisis that surrounds it. Thus, there are some notes about the distrust around the legislator regarding the implementation of constitutional constraints, directly derived from such Constitution. The substitution of the functions of the Legislature for the actions of the Ministers of Brazilian Supreme Court (STF) is noticeable through the phenomena of the judicialization of politics and judicial activism. The term "judicial activism" is widespread, however, there is often a lack of precision in the use of the concept. For this reason, the concept of judicial activism and its dimensions were introduced. Afterward, on an analysis of the decision of the Popular Action No. 3388 was undertaken. The study showed that the conditions imposed by the Supreme Court contradicted current legislation and restricted indigenous rights guaranteed by the Constitution of 1988.