The prison regime of semi-freedom, the right of indigenous peoples and the challenges of interculturality

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Abstract

The struggle of indigenous peoples in search of the full realization of their rights and the recognition of their self-determination accompanies the construction of society and Brazilian law. In this regard, the problem of indigenous peoples in conflict with the law exposes an important reflection on indigenous legal systems and the penal system applied in the manner of the determinations of the State, holder of the jus puniendi, that is, the right-duty to punish. This contradiction between these legal systems permeates social and cultural conditions and manifests, mainly, an ethnocentric view imbued with prejudices and discrimination. Therefore, this study seeks to analyze, through a jurisprudential survey in all state and federal courts of the country, how the regime of semi-freedom - provided for in article 56 of the Brazilian Indian Statute - is being applied in cases involving indigenous prisoners. This mapping uses as a basis the phenomenological methodology, whose scientific objectives are exploratory-descriptive, subsidized by the qualitative-quantitative approach of bibliographic setting, with scientific essay characterized by being non-experimental. In specific terms, the keywords "semi-freedom", "indigenous", "indian" and/or "savage" were used to search for criminal cases between 2004 and 2020. In addition, this paper also discusses discussions on interculturality, verification of institutional racism in judicial decisions and underreporting of the number of indigenous prisoners in the Brazilian prison system, as well as the (in)compliance with constitutional precepts and international treaties to which Brazil is a signatory.