Deprived of their basic rights and having their traditional punishment practices disregarded, the number of Brazilian indigenes grow, unnoticed, among the country’s prison population
By Cristhian Teofilo da Silva and Gustavo Hamilton de Sousa Menezes*
Edited by Xavier Bartaburu
Indigenous Peoples in Brazil have lasting memories of the many ways in which the colonizers of yesterday and today tried to transform their cultures and make their societies and identities disappear. But the assimilationist violence of settler society is not limited to the brutality carried out by groups connected to agribusiness, police forces and some churches. With increasing numbers of Indians being arrested and held in prisons, their incarceration and the disrespect for their rights have become the new weapon of settler society to advance over their territories.
There is a growing number of indigenes among the Brazilian inmates. The most recent data, recorded by the Penitentiary Department at the end of 2016, registered 590 Indians incarcerated in the country’s prisons. What we see, however, is that this number is much larger, underestimated by the statistics for reasons similar to those that keep the indignes away from their fundamental rights in Brazilian society, even outside prisons. The difference is that, in jail, the situation gets even worse.
First of all, we have the phenomenon of ethnic decharacterization: the identity of detainees is often treated with little or no importance by prison managers – who, as a rule, are not advised to keep records of ethnic diversity within prisons, which could be done through form, for example. What happens is that, as soon as he is detained, the indigene is deliberately included in the “mulatto” category, which results in the denial of distinctive rights. Many Indigenous Peoples, in turn, also avoid identifying themselves as such, out of fear or distrust of negative experiences they have had in the past.
Photo: Cristhian Teofilo da Silva
A perverse effect of this ethnic decharacterization of the imprisoned indigene is its assimilation by the prison institutions as “acculturated” or “integrated”, obsolete categories ruled by very superficial elements, such as holding identity documents, some knowledge of the Portuguese language, the use of clothes and even the physical appearance as a mestizo. This occurs throughout the whole chain: in detention by the Military Police, in the investigation by the Civil Police, in the prosecution by the Public Prosecutor’s Office, in the defense presented by the Public Defender, in decrees drawn up by magistrates until, finally, the reality of the penal institutions.
What results from this invisibilization is that the imprisoned indigenes are deprived of the basic right to be treated differently by the justice and prison systems, a fact worsened by the lack of knowledge of legal professionals. This includes the right to an interpreter in a language that helps them to understand and be understood, a free public defender, freedom of religious expression, traditional food consumption and even flexibility in serving the sentence.
Current legislation and international agreements recommend applying other kinds of punishment to the tribal groups, apart from imprisonment. And, for prison and detention sentences, for example, the semi-liberty regime, close to the official assistance body for Indigenous Peoples, is recommended. Indigenous practices of justice, conflict resolution, punishment and education of members of their communities should also be recognized. This recognition is fundamental when it comes to small groups, where the imprisonment of adult men and women causes profound impacts not only for their families, but for all of their people. The imprisonment of indigene leaders has even served as a way of politically dismantling indigenous resistance in areas of land conflict.
In other words, if there is a recognition of the Brazilian government in relation to the country’s extensive ethnic, cultural and linguistic diversity, there should also be the recognition of a wide variety of moral interpretations peculiar to each indigenous community and how they are used to maintain the territories and the continuity of its people. Each society has its idea of what would be a “crime” and also a whole set of punishments corresponding to these crimes.
The Maxakali, for example, an ethnic group that lives in the state of Minas Gerais, are among the ethnic groups that insist on maintaining their traditional practices, rejecting some principles of the Brazilian legal system, detentions included. The i
mprisonment is not part of the range of punishments applied by the community. And the idea that a Maxakali is being held away from his people strike the other members of this community with horror, even those who are in disagreement with him.
Thus, the constitutional recognition that Indigenous Peoples have their own social organizations should guide Brazil in the making of a distinctive legal policy, especially including the assimilation of the traditional systems of law used by the indigenes for the resolution of conflicts. As a reinforcement of this policy, it is worth remembering the content of the Indigenous and Tribal Peoples Convention of the International Labour Organization (C169), sanctioned by the Brazilian government in 2004, which urges government authorities around the world to recognize the cultural integrity of Indigenous Peoples and to take responsibility for their rights. The right to difference is the main claim here. Not as a privilege, but as a matter of dignity and recognition of cultures that for centuries have lived under the spectrum of genocide.
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