Jurisdição Constitucional dos povos indígenas: a legitimidade das entidades representativas de minorias nas ações de controle concentrado no STF

Abstract

The abstract and concentrated control of norms consecrated by the Federal Constitution of 1988 inaugurates a new democratization moment of the Constitutional Jurisdiction, by making possible the participation of the civil society entities and organizations in processes that stem from their interests and fundamental rights. However, when establishing article 103, IX, the original constituent did not expressly bring the recognition of entities that represent minorities, mainly the entities of indigenous people, leaving the Supreme Court the responsibility to interpret the list and confer legitimacy to these organizations. The Action against the violation of a constitutional fundamental right - ADPF no 709, was a milestone both in the jurisprudence of the STF, and in the struggle of indigenous peoples, considering that the Plenary of the Court recognized, for the first time, the possibility of indigenous peoples to act before the constitutionality control, with the active legitimacy recognition of the Articulação dos Povos Indígenas do Brasil – APIB. The objective of this work is to analyze the Brazilian constitutional jurisdiction in the light of indigenous people rights in guaranteeing access to the Judiciary, in this case, to the STF due to the concentrated control, for the protection and enforcement of fundamental rights, specifically, the right to health, life, human dignity and the right to remain in their traditionally occupied lands, without losing sight of the behavior of the Supreme Court in the construction of a defensive jurisprudence in the initial years after the Constitution enactment and in the democratic opening produced in the scope of ADPF 709. The chapters analyze the understanding of the constitutionality control system, which aims to understand how this important procedural system works from the perspective of access to constitutional jurisdiction. Then, a historical overview of the struggles of indigenous peoples and the dispute for rights and the action within the scope of the Supreme Court is made, in order to guarantee the protection of fundamental rights. The emphasis on the countermajoritarian role of the STF is fundamental for the turn in defensive jurisprudence.