O fundamento da autodeterminação e a tutela penal indígena no ordenamento jurídico pátrio

Abstract

The present work addresses, from a modern and decolonial perspective, past and current facts and aspects of the indigenous theme deemed relevant to understand the main theme being researched: the foundation of self-determination and indigenous penal protection in the Brazilian legal system. The term "indigenous guardianship" in the present work is equivalent to "indigenous jurisdiction" and "indigenous justice", and can be understood as the legal system based on uses and customs transmitted orally for centuries within indigenous societies, is emphasized in the present research the criminal law view. From this perspective, it was sought to contextualize the research from an indigenous perspective, arouse the interest of academia in the subject, relate indigenous peoples to the concept of self-determination and deconstruct historical fallacies perpetuated over the centuries, in addition to (re)discovering the past and present indigenous protagonism, ensuring their deserved place in history. Furthermore, using the conceptions of legal pluralism and comparative law - through the analysis of the legal systems of Latin American countries representatives of the movements, struggles and resistances of a decolonial bias -, it was intended to achieve the objective of demonstrating the existence and the validity of the Indigenous Law and its application, in order to finally situate indigenous jurisdiction in the Brazilian legal system. Such an approach was necessary because, since arriving in our country in the 16th century, the Europeans imposed their Law on the native indigenous peoples, starting since then the genocidal policy that persists to the present day, which goes against the constitutional context in the current Latin American region, there is no need to admit the suppression or non-effectiveness of rights constitutionally and internationally a solution, an example of the exercise of indigenous jurisdiction by indigenous people, therefore, it is necessary to implement this right in the name of their self-determination. Since there is currently no peaceful recognition of them by the Brazilian State, relative foundations still stand out rooted in legal monism with a Eurocentrist bias. With the solution of solving this problem, it is expected to demonstrate, to use bibliographical and documentary research through the deductive method with a qualitative character – dialoguing with the past through a historical perspective and focusing on the legal systems from other Latin American countries - such as the recognition of indigenous jurisdiction in Southern countries today, in order to finally achieve the best solutions to be applied in Brazil for the benefit of this jurisdiction and its exercise by indigenous peoples - as foundation of the long-awaited self-determination to which all peoples are entitled. It can then be concluded that a possible solution for the standardization of the recognition of indigenous jurisdiction in Brazil starts with the recognition of the rights of indigenous peoples by the majority society – from a pluralist and egalitarian perspective, seeing the other as its equal, but with different rights – and, from there, it converges to a forceful and fruitful jurisdictional action on the part of our Constitutional Court – the Federal Supreme Court –, in the same way that occurs in the Colombian Court, whose performance, in light of its decisions, it places it at the forefront of the Courts of the countries studied here with regard to indigenous jurisdiction, serving as an example for other Latin American countries.