‘They all here call me índio’: Indigenous identification and the criminal justice system in Northern Minas Gerais

Rodrigo Arthuso Arantes Faria

doi:10.1590/1809-43412021v18a705

Abstract

Abstract The article analyses the interaction between the criminal justice system and persons of the Xakriabá Indigenous people facing criminal prosecution in the Manga district in Northern Minas Gerais. To do so, I draw on the material gathered in the fieldwork I carried out in the region in early 2020, as well as on current legislation, selected jurisprudence from the Supreme Court, and documents produced by the bodies responsible for the criminal and prison policies in Brazil. I argue in the paper that the category of 'Indigenous person' mobilized by state agents differs from that conceived by the Xakriabá themselves, and that this dissonance often implies the lack of ethnic recognition of these persons throughout the criminal process and the failure to record their presence in official prison management documents. As a consequence, what is seen is the violation of the right to self-identification and the non-enforcement of legal guarantees granted to all Indigenous persons by the Brazilian legal system.

Highlights

The article analyses the interaction between the criminal justice system and persons of the Xakriabá Indigenous people facing criminal prosecution in the Manga district in Northern Minas Gerais
In this paper I articulate how preconceptions about Indigenous peoples acts as a mediator of the interactions between the criminal justice system, its agents and individuals from the Xakriabá Indigenous people accused of having committed a conduct established by law as criminal
The 1988 Constitution broke, formally at least, with the integrationist and tutelar paradigm of the Indian Statute, and recognized the autonomy of Indigenous peoples in order to extend its protection to their ‘social organization, customs, languages, beliefs and traditions’, included their mechanisms for punishing criminal conducts, holding the offender accountable and making due reparation to the victim, i.e., their own jurisdiction and criminal law (Villares, 2010: 22). This aspect, associated with the decision not to define in the text fixed criteria for identifying Indigenous persons and peoples, led scholars to consider that Article 231 of

Summary

Setting the stage

In this paper I articulate how preconceptions about Indigenous peoples acts as a mediator of the interactions between the criminal justice system, its agents and individuals from the Xakriabá Indigenous people accused of having committed a conduct established by law as criminal. The 1988 Constitution broke, formally at least, with the integrationist and tutelar paradigm of the Indian Statute, and recognized the autonomy of Indigenous peoples in order to extend its protection to their ‘social organization, customs, languages, beliefs and traditions’, included their mechanisms for punishing criminal conducts, holding the offender accountable and making due reparation to the victim, i.e., their own jurisdiction and criminal law (Villares, 2010: 22) This aspect, associated with the decision not to define in the text fixed criteria for identifying Indigenous persons and peoples, led scholars to consider that Article 231 of. The opportunities for self-declaration are routinely suppressed by Police Officers, Judges and Prison Agents, and when not suppressed, it is questioned, if not solemnly ignored This is the case with Indigenous persons who, regardless of the time and intensity of social interactions they maintain with the surrounding society, absorbed some of its customs and appropriated some of its signs (Menezes, 2016). To put it another way: to what conception of an Indigenous person is the concrete figure of an ‘integrated’ defendant opposed, in order to verify whether he or she satisfies the constitutive criteria of a legitimate and legally valid indigeneity?

The Amazonian paradigm

Findings

Xakriabás are those who live as Xakriabás