Tratamento jurídico-penal do indígena a partir de uma visão redutora do poder de punir

Abstract

Since the arrival of the Portuguese in Brazil, Indigenous peoples have been engaged in a constant struggle that continues to this day. The Brazilian criminal justice system was not designed to address the specific needs of Indigenous individuals, as it imposes penal selectivity on them within the very historical context of colonization to which they were subjected—one that sees Indigenous people as inherently "inferior" and vulnerable. It can be said that the Brazilian criminal justice system is characterized as a "people-grinding machine," given its level of violence and legal-penal discourse. This discourse, influenced by German penal dogmatics, is detached from the Latin American—and particularly Brazilian—reality. How can one trust a penal system that kills Indigenous bodies, their ways of life, and cultural practices, placing faith in a legal discourse that, by its very nature, targets these very bodies as punitive filters? The penal response does not appear to be the best option, as it clearly reveals the system's inconsistencies. On the other hand, the penal system is thirsty for punishment, and penal agencies continue to operate selectively, targeting the most vulnerable—among whom Indigenous people are included. Given this reality, believing that criminal law will not be applied to an Indigenous person who allegedly commits a crime may be seen as naïve. In light of this, the conceptual construction of the offense should be undertaken as a system guided by the central idea of reducing punitive power, which will, in turn, influence all structural particularities that seek to be integrated into the system.