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Paper short abstract:
Based on the analysis of decisions issued by state courts, the paper analyzes the treatment given by the criminal justice system to indigenous people in Brazil, paying special attention to the recognition of their ethnic identities and the application of their specific rights.
Paper long abstract:
The present paper discusses the treatment given by the Brazilian penal system to indigenous people in criminal cases, having as index of analysis the recognition of the ethnic identity of such people and the proper application of the legal provisions ensured to them. Specifically, particular attention will be paid to the discursive regime mobilized by the judiciary to deny the intervention of experts (anthropologists, interpreters) and the application of measures other than incarceration (as directed by the ILO Convention 169). The proposed analysis is based on two axes: (i) one "macro", intended to investigate the historical-political construction of the relationship between the Brazilian(s) State(s) and indigenous peoples, and (ii) one "micro", with the purpose of extracting from judicial decisions the rationality that guides judges in concrete cases. In this sense, the analysis undertaken will be supported by recent rulings handed down by State Courts of the various regions of the country, in the context of constitutional jurisdiction, in order to demonstrate that the practice here addressed is systemic, conjunctural. We can argue, at this point, that Courts deny indigenous rights to indigenous people by disregarding their ethnic specificity, based on a random index of Indianity that rests on an assimilationist ideal incompatible with the prevailing international and constitutional order, and ignores the social and cultural complexity of indigenous lives in nowadays Brazil. A colonial mentality actualized on perverse bureaucratic procedures that allows the statistical concealment, the social invisibility and the legal death of culturally differentiated subjects of rights.
Law and Culture in Court