Paper short abstract:

The approach of Brazil’ s Supreme Court in the case of Raposa-Serra-do-Sol goes beyond the interest focused on indigenous issues. It matters refers to the functioning of the judiciary, especially the role of its governing body. This paper discusses indigenous rights through this case.

Paper long abstract:

In 1988 Brazil wrote a new Constitution that replaced that of 1967. The new Constitution gave special emphasis to human rights and instituted very positive policies. Article 231, recognized both the cultural and territorial rights of indigenous peoples based on their traditional heritage, that Indians are "primary and natural owners" of their lands. After years of campaigning Raposa-Serra-do-Sol was approved by President Lula on 15 April 2005. The government of Roraima state lodged an unusual petition in Brazil's Supreme Court contesting the federal government's legal and official recognition demanding that it be reduced in size. Finally, on 19th March 2009, the Supreme Court judges upheld the Indians' rights, saying it had been demarcated according to the constitution and that its size and borders should be maintained. The Supreme Court judges decision was not in this case to deny the validity of a normative statement declared unconstitutional. The 19 conditions were created as general statements, mostly about the future relationship between the state and indigenous peoples, including in relation to the territorial issue. This new approach goes beyond the interest focused on indigenous issues. It matters refers to the functioning of the judiciary, especially the role of its governing body, the Supreme Court. It is the question of the legitimacy of judges to create the right, now placed under the optical limiting of social rights. This paper discusses indigenous rights through the case of Raposa-Serra-do-Sol that gives an insight into the applicability of demarcation of indigenous lands in Brazil.