The research context: Prisons, conflicts and rights issues

I conducted ethnographic research on Indigenous protagonism in Roraima: as indicated above, such protagonism aims to create internal mechanisms to deal with conflicts and thus achieve greater autonomy from the national justice system. I conducted research in offices as well. I carried out interviews and engaged in dialogues with Indigenous lawyers, prison officials, police agents, public defenders and a judge. In the local prisons, it was not possible to undertake participant observation research; the visits I was permitted lasted a few hours each day: however, I endeavoured to listen with care and attention to these Indigenous peoples, letting them narrate their autobiographies and how they had come to be arrested and sent to prison, always maintaining their anonymity for ethical reasons (see Peirano 1995). As a researcher, my participatory approach allowed me to inform Indigenous prisoners about their differentiated rights and provide information to those who were unaware of them. I also provided them with information about the injustices suffered through publications and material which could be used to contribute to the defence of their differentiated rights.

I have been doing research in Roraima since 1982, when I started fieldwork for my PhD in anthropology at the University of Brasília, with the Waimiri-Aroari people in Roraima and Amazonas between 1982 and 1985. From 2000, I started a research project examining how Indigenous people who live on or near the Brazil–Guyana border – which separated their traditional lands in 1904, transforming Indigenous lands into ‘national lands’ – see the issues of ethnicity and nationality. In this project, I focussed on the Macushi and Wapishana people who live on the international border. Since 2008, I have been interviewing Indigenous people in the prisons of Boa Vista and following the efforts made by Indigenous people to create internal mechanisms for dealing with conflicts, such as councils of tuxauas (Indigenous leaders) at the local level, and the action of the CIR through the pioneering efforts of Joênia Wapishana and her team of Indigenous lawyers and law students. In addition to examining the criminalisation of Indigenous people, I have also interviewed penitentiary agents, non-Indigenous lawyers from the Public Defender's Office, Indigenous lawyers from the CIR and an Indigenous judge (see Baines 2009, 2015, 2016).

On invitation by the Brazilian Anthropology Association (Associação Brasileira de Antropologia; ABA), I coordinated a 2007 survey on the situation of Indigenous people in prisons in Roraima and, since 2008, I have also been monitoring the situation of Indigenous people in prisons in Boa Vista: the Monte Cristo Agricultural Prison (Penitenciária Agrícola Monte Cristo; PAMC); the Boa Vista Public Jail (Cadeia Pública de Boa Vista; CPBV); the Boa Vista Women's Public Prison (Cadeia Pública Feminina de Boa Vista; CPFBV); the Prison Hostel of Boa Vista (Casa do Albergado de Boa Vista; CABV); and the Centre for Prison Progression (Centro de Progressão Penitenciário; CPP). As stated above, I conducted interviews with Indigenous people inside these prisons, and with prison agents, non-indigenous Public Defenders, Indigenous lawyers and leaders, and a judge. Some of this work features in earlier publications (see Baines 2009, 2015, 2016, 2021).

According to data from the National Penitentiary Department, the total prison population in Brazil increased from 232,755 in 2000, to 824,823 in December 2021. In Roraima, statistics published by the same department show an increase in the prison population from 1,302 in December 2007 to 4,213 in December 2021.³

In recent years, war between organised crime factions has erupted inside the prisons, and in early January 2017 fifty-six prisoners were killed in the main prison in Manaus, the capital of Amazonas. Five days later, thirty-three inmates were killed,⁴ some of whom were beheaded, on 6 January 2017 at the PAMC, the main prison in Roraima, which at the time had a population of over 1,400 prisoners, far beyond its capacity. In late November 2018, a Federal Intervention Task Force (Força-Tarefa de Intervenção Penitenciária; FTIP) initially consisting of eighty-three federal criminal police agents occupied the PAMC. The FTIP was extended thirteen times until 30 November 2021,⁵ when 423 newly appointed criminal police officers replaced them.⁶ Since 2008, access to the PAMC has been relatively easy with authorisation from the Director of the Prison System Department (Departamento do Sistema Penitenciário; DESIPE) under the Secretary of State for Justice and Citizenship (SEJUC) of Roraima, although surveillance has become tighter every year. During the Federal Intervention period, I was unable to interview Indigenous detainees in this prison (Baines 2021) and my interviews were restricted to other prisons in Boa Vista. Since the prison riots in 2017, prisoners in the CPBV have been presented for interviews handcuffed with their hands behind their backs in a position of extreme discomfort, a punishment technique (Foucault [1975] 1995) meant to dissuade them from starting new rebellions.

At the PAMC, there was always an atmosphere of insecurity, which was less evident in the other prison units in Roraima. On my first visit to the PAMC, arranged with the Director of the DESIPE/SEJUC, in January 2008, it was not possible to enter the prison, as two detainees had been found murdered in the early hours of the morning and a military police shock squad was entering the unit to recover their bodies. The Director of the DESIPE/SEJUC, who arrived shortly after me, asked me to reschedule my visit. As a PAMC guard told me in February 2009: ‘There are around a thousand prisoners in this prison, and there are only seven of us (prison agents – some agents were on leave). If there's a riot inside, we can't do anything’. The same guard explained that the inmates appoint heads of wings inside the prison, usually people who are serving long sentences and who are older and who seek to maintain order. Early in 2018, the Director of the DESIPE/SEJUC showed me a video on his cell phone of an attempt made by prison agents to negotiate the entry of a medical doctor into the PAMC to treat sick inmates, and there were voices shouting from inside threatening to kill other prisoners if anyone were to enter the unit.

The actual number of Indigenous people imprisoned in Roraima, as in other states of Brazil, is deemed to be at variance with official government statistics, which are considered to be on the low side. The criminalisation process contributes to the erasure of ethnic identities, since there are no mechanisms in the prison system to identify Indigenous people, and the majority of police agents, prison staff, public prosecutors and judges are completely unaware of the differentiated rights that apply to Indigenous persons accused of crimes. Most have no training to deal with Indigenous people or to overcome the institutional racism present in Brazilian society (Baines 2015, 2016). The national ideal is of a homogeneous state in which ethnic differences are subordinated to an all-encompassing Brazilianness.

In the process of the criminalisation and imprisonment of Indigenous persons in Brazil, Cristhian Teófilo da Silva (2013) points out two types of policies of non-recognition: the non-recognition of the collective rights of Indigenous peoples and the non-recognition of the Indigenous right to be a collective. He designates the first type of non-recognition ‘legal or juridical invisibility’ and the second ‘ethnic invisibility’:

Criminalised Indigenous persons fall under both forms of lack of consideration, which can be defined as serious violations of human rights, as both consist of forms of discrimination for denying the Indigenous right to socio-cultural difference at the same time as a denial of the right of access to justice. (Teófilo da Silva 2013: 151)⁷

In Roraima, where the Indigenous presence is large, incarcerated Indigenous people often told me that they would prefer not to identify themselves as Indigenous for fear of discrimination, both from other prisoners and from prison system officials, law enforcement officers and judges. Many of the inmates interviewed are classified by prison officers, according to the categories used in the National Census of the IBGE, as ‘brown in colour’ (de cor parda), a category included in the Canaimé System, a computer programme developed for the management of prisons, police activities and prison and police intelligence in Roraima, which uses the name of a dangerous cosmological being⁸ of the Indigenous peoples of this region (Whitehead 2002).

Examining how Indigenous people are included in national censuses, João Pacheco de Oliveira states: ‘In the North, where there was no significant transfer of black slaves or extensive flows of immigrants converged, the category “pardo” predominantly and necessarily evokes indigenous ancestry or identity’ (1999: 134). In another work, Pacheco de Oliveira asserts:

The category of ‘brown’ (pardo) is a generic indicator for mixing between different colour groups. This is absolutely not the meaning of the condition of being indigenous, which refers to a differentiated legal status, not to a situation of alleged internal homogeneity and external distinctiveness in terms of colour. (Pacheco de Oliveira 1997: 69)

The national ideology of a mixed-race nation, a melting pot of races where Brazilianness overrides any ethnic differences, reinforces a tendency in Brazil to deny the presence of Indigenous people. In popular thought, the idealised Indigenous person is from the past or one who lives deep in the forest without contact with the national society, and those Indigenous people who live in the national society are seen as being inauthentic. When I started doing research in the prisons of Roraima, early in 2008, the Director of the DESIPE/SEJUC and other prison staff denied the existence of large numbers of Indigenous persons in the prisons, stating that there were very few. I could discern no clear intention to hide the number of Indigenous persons in the prisons; however, the common sense of these agents shared the perspective of the majority of the population of Roraima; such a perspective was that, by virtue of living in the city or by living outside of government-recognised Indigenous lands, persons could not be deemed Indigenous. When I started interviewing inside the prisons, the number of people who identified themselves to me as Indigenous, caboco, a descendant of an Indian, a son of an Indian or having been born in a maloca grew as the interviews proceeded over the years. Some respondents did not want to identify themselves as Indigenous despite admitting that they might be. However, the survey itself, carried out from January 2008 on annual visits to Roraima until the COVID-19 pandemic in 2020, encouraged some of the Indigenous prisoners to organise themselves politically. This was evident from the rapid increase in the number of prisoners classified as Indigenous in official statistics, and was especially so after an official visit by a team from the ombudsman of the FUNAI, which started work on 14 October 2014 to make a diagnosis of the situation of Indigenous people imprisoned in the state. The action of this federal agency began in the Monte Cristo Agricultural Prison, through the project called ‘Comprehensive Care for Incarcerated Indigenous Peoples’.⁹ The project aimed to understand the situation of Indigenous people in order to promote public policies.

Legislation on Indigenous rights in Brazil

Convention 169 of the International Labour Organization (ILO) (1989), to which Brazil is a signatory, and which entered into force in this country in 2003, states, in Article 10, Paragraph 2, that ‘preference shall be given to types of punishment other than imprisonment’. The Federal Constitution of 1988 affirms, in Article 231, Indigenous people's right to difference, that is, the right to be different and to be treated differently. In the event of the execution of a custodial sentence or provisional imprisonment of Indigenous persons, compliance with the rules set out in Articles 56 and 57 of the Indian Statute (Law 6.001/1973) is mandatory. Article 56 states:

In the case of conviction of an Indigenous person for a criminal offence, the penalty must be mitigated and, in its application, the judge will also take into account the degree of integration of the person. The sentences of imprisonment and detention shall be served, if possible, under a special regime of semi-liberty, at the place where the federal agency for Indigenous assistance works closest to the prisoner's dwelling.

Article 57 adds: ‘The application, by tribal groups, in accordance with their own institutions, of criminal or disciplinary sanctions against their members will be tolerated, provided they are not cruel or injurious, the death penalty being prohibited’.

The increase in awareness amongst the incarcerated Indigenous population regarding their differentiated rights is evident in the statistics presented in the National Survey of Penitentiary Information (Levantamento Nacional de Informações Penitenciárias; INFOPEN), which is published by the National Penitentiary Department (DEPEN). In the report of the Integrated System of Penitentiary Information of July 2008, out of a total of 1,435 prisoners in Roraima only 45 Indigenous people are registered and 886 pardos, while in the INFOPEN report for December 2019, out of a total of 3,668 prisoners, there are 138 Indigenous people and 2,336 people classified as pardos. However, in the INFOPEN report¹⁰ for July to December 2021, out of a total of 5,577 detainees 238 people are registered as Indigenous and 2,554 as pardos, revealing a considerable increase in the number of people who identify themselves as Indigenous.¹¹

As mentioned above, in Roraima few Indigenous people are imprisoned for accusations directly related to land conflicts. The typification of crimes for which Indigenous people are accused in Roraima (see Baines 2009, 2015, 2016, 2021) is related to the fact that most detentions of Indigenous people occur in the capital, Boa Vista, in other cities, and outside Indigenous lands, and the typification of crimes does not differ greatly from that of non-Indigenous people. However, while most of the accusations directed against Indigenous people in Roraima are not directly related to land conflicts, indirectly there is a close relationship between the lack of adequate Indigenous lands demarcated by the federal government and the vulnerable situation of Indigenous people.

In Roraima, there are thirty-two Indigenous lands recognised by the federal government,¹² of which twenty-nine are located in the savannah and mountainous region in the state's north-east. In this region, there is a difference between, on the one hand, the demarcations of three Indigenous lands that have large extensions, the Raposa Serra do Sol Indigenous Land (1,747,464 ha), the São Marcos Indigenous Land (654,110 ha) and the Jacamim Indigenous Land (193,493 ha), and the rest. These three Indigenous lands meet the needs of their growing Indigenous populations, providing access to natural resources, hunting space, suitable land for planting, and sites of cultural significance. On the other hand, the fragmented land demarcations carried out mainly in the 1980s, most with areas of less than 11,000 ha squeezed between farms and villages, in which some Indigenous communities have been confined and others excluded, make up the rest of the Indigenous lands in this north-eastern region.

In many of the fragmented Indigenous lands, there are attempts to claim the recovery of adjacent lands dismembered during the demarcation processes, or to carry out new demarcations of lands for traditional use. Fifty years ago, almost the entire state of Roraima was made up of Indigenous lands. With rapid population growth over the past four decades, these fragmented Indigenous lands have become grossly insufficient in extent to sustain their populations. In these situations, the inhabitants are increasingly forced to seek sustenance outside their lands in the form of wage labour in the city and on farms. Here, the criminalisation of Indigenous people in Roraima is related to the land tenure situation and the federal government not demarcating Indigenous lands large enough for the sustenance of their populations.

Facing strong racial discrimination as ‘Indians’ and with few opportunities, the majority become part of the poorest of the urban population in situations of extreme vulnerability, living in inadequate housing in very poor shanty towns. Some live in the city waste dump, where they collect rubbish for recycling. Such plights can get them into problems with the law, leading to high numbers of Indigenous people in prison. At the CPFBV, almost all Indigenous women were arrested on charges of drug trafficking, although many claimed that it was their non-Indigenous companions who were involved in the trafficking and that they were arrested when the police found drugs in their homes and their companions were absent. A few admitted that they had resorted to drug dealing to try to survive in a city where discrimination made it hard for them to make a living legally. Others claimed that they were just drug users and should not have been sentenced for trafficking. Yet others did not understand Portuguese sufficiently, and the legal jargon, to know why they had been sentenced.

A brief history of the imprisonment of Indigenous people in Roraima

To understand the situation in which Indigenous people live in this region of Brazil nowadays, I turn briefly to its history. This region was colonised by the Portuguese in the second half of the eighteenth century. The colonial occupation began in the 1780s in the form of a strategic military occupation, since the Portuguese were concerned with ensuring the occupation of this border area and avoiding any possible invasions by the Spaniards and Dutch from the north (Farage 1991). Indigenous people were rounded up and put into ‘settlements … multi-ethnic compounds’ (1991: 125) in the second half of the eighteenth century. Anthropologist Nádia Farage used historical sources to reveal that there were a series of uprisings in response to the ‘overexploitation of the labour-force of the settled Indigenous people’ (1991: 131). Farage adds that there were massive escapes from these settlement-prisons that spread ‘in direct proportion to the violence used by the Portuguese to repress them’ (1991: 131). According to this same author, ‘the recruitment of labour as provided for in Paragraph 62 of the Directory of Indians was brought into effect by Indigenous “principals”, leaders invested with power by the colonisers, who were supposed to supply the Indigenous workers demanded by the Portuguese in due time’ (1991: 131). The opinion of the Governor of the Captaincy of Sao Jose do Rio Negro, Manuel da Gama Lôbo D'Almada, ‘sent to Lisbon, was for the declaration of war against the insurgents, who should be captured and reduced to obedience’ (1991: 134). Faced with the Indigenous uprising of 1790, this same governor, who had previously defended precepts of humanist colouring in dealing with Indigenous people, was ‘the first voice to recall the need to “demonstrate punishment with the delinquents”’ (1991: 165).

In the second half of the nineteenth century, the French explorer Henri Coudreau describes the Wapishana as ‘Indians wearing clothes’ and he observed that they occasionally worked for white people (apud Farage 1997: 33). From his description, this Indigenous population became ethnically invisible, reduced to the category of ‘labourers’ (Farage 1997: 41) or ‘tamed Indians’ (Índios mansos). In 1889, the explorer and ethnographer Count Ermanno Stradelli described the Wapishana as ‘docile labourers, who lend themselves well to the service of white people’ (apud Farage 1997: 41). Farage notes that, in the first decade of the twentieth century, the ethnographer Theodor Koch-Grünberg ‘passed by the Wapishana territory, in search of the Carib peoples to the north, since he assumed, like Coudreau, that, among the former, there would be nothing worth mentioning for an ethnographic collection’ (1997: 41). At the end of nineteenth century and the beginning of the twentieth century, the Wapishana were already seen as peasants, even by certain ethnographers and explorers of the time such as the three mentioned above.

After conflicts between the governments of Brazil and Great Britain in the then colony of British Guiana over the definition of the border in the late nineteenth and early twentieth centuries (Rivière 1995), the territories of Indigenous peoples who inhabited this region were divided by the border line drawn between Brazil and Guyana in 1904. On the Brazilian side of this border, two Indigenous agencies were established at the beginning of the twentieth century: the Indian Protection Service (Serviço de Proteção aos Índios; SPI), based on the São Marcos Ranch, and the Benedictine evangelising mission on the upper Surumu River, both replaced, respectively, by the FUNAI and by the Consolata Order (Santilli 2001). Despite using clientelistic procedures similar to the mediations between regionals and Indigenous peoples over the previous decades, they aimed at other ends. The anthropologist Paulo Santilli (2001) argues that during this period efforts were made to transform the Indigenous peoples into national workers. Using what he calls a ‘clientalistic pattern’, there was an investment ‘in the setting up of political intermediaries, in the figure of tuxauas or village leaders, which indigenist¹³ agencies sought to legitimise and consolidate’ (Santilli 2001: 40). In 1976, when I first visited this region, the majority of Macushi and Wapishana peoples in the state capital, Boa Vista, were in a subaltern situation, working as cheap manual labour for the regional population.

Indigenous protagonism in Roraima was built up from the collaboration between indigenist agencies and Indigenous leaders. Both the religious agents and the agents of the SPI and, from 1967, the FUNAI, sought to undermine the clientelistic relations that bound Indigenous people to the regional population (Santilli 2001). From 1975 onwards, the Diocese of Roraima started to sponsor annual meetings called ‘assemblies of tuxauas’. A ‘canteen project’ was set up in the villages and, in the 1980s, the Diocese of Roraima set up a ‘cattle-raising project’ with the objective of promoting the occupation of the savannah region in the north-east of Roraima, transforming the Indigenous inhabitants into cattle ranchers. Priests of the Consolata Order, who were involved, aimed to create a new image of Indigenous people in this savannah region as being useful for the national society in the principal legitimised activity of the Brazilian colonisers at the time, cattle-raising. From these initiatives there emerged, in 1984, the regional councils and, later, a coordination in Boa Vista, which became the CIR, which has become one of the strongest Indigenous organisations in Brazil, and from which emerged the first woman Indigenous federal deputy in Brazilian history, Joênia Batista de Carvalho Wapishana, who was elected in 2018. In December of that same year, she received the UN Human Rights Award.

Santilli points out that, ‘detaching itself from the village plan, the Indigenous Council was set up vertically, privileging hierarchy and political representation in partidary terms’. He also highlights that:

the material support for the organisation of the Indigenous Council – and this became more evident with each failure of the ‘community projects’ conceived by indigenist agencies – depends viscerally on external resources, whether paid by Catholic missionaries, or coming from official bodies such as the FUNAI, or even international co-operation. (Santilli 2001: 44)

The impact of these indigenist policies on the Indigenous peoples in this border region cannot be underestimated, since their original pre-contact cultures had been radically transformed by colonisation, followed by a re-emergence of specific Indigenous identities over recent decades. Many, reduced to slavery, were seen by the regional population, and came to see themselves, as Brazilian peasants, cabocos (mestizos or colonised Indigenous people). Gradually, they elaborated their strategies to assert their rights before the federal government in a process of Indigenous protagonism in which many have moved away from the stigmatised identity of peasant cabocos and asserted themselves as Macushi, Wapishana, Ingaricó, Taurepang, Patamona and other Indigenous peoples.

On ethnicity and nationality between and on borders

In this border region, where Indigenous lands were divided by the imposition of national borders between Brazil, Venezuela and Guyana, the question of nationality was also imposed by these national states through their respective agents. Roberto Cardoso de Oliveira, when he refers to border spaces, emphasises the following:

As for nationality, as a second identity, it is clear that it will be instrumentalised in accordance with specific situations in which individuals or groups are included, such as seeking health care, education for their children or possible protection from border military forces. (Cardoso de Oliveira 2005: 17)

Cardoso de Oliveira adds that it is a question of

inserting them in another frame of reference: the (inter)national framework. Strictly speaking, one could say that such a picture would have its configuration marked by a transnational process, … Therefore, in the case of a border situation, what emerges as a powerful social, political and cultural determinant – probably more than ethnicity –becomes the nationality of social agents; and when nationality and ethnicity intersect. … And it is precisely this space occupied by nationality that tends to internationalise, thanks to the process of transnationalisation. (Cardoso de Oliveira 2005: 14–15)

As Cardoso de Oliveira postulates, the juxtaposition of nationality with Indigineity has become problematic, and has been used as yet another reason for discriminating against Indigenous people: they are ‘foreigners’ and ‘illegal immigrants’ who have invaded national territory, and for incriminating Indigenous people for fraudulent misrepresentation, since many have identity cards from more than one country with different names that correspond to the dominant language of each country – the irony, of course, being that they do so to avoid discrimination in the country that the respective card belongs to. And this discriminaton occurs, despite the fact that Article 2 of Resolution No. 287 (2019) of the CNJ affirms that its ‘procedures shall be applied to all persons who identify as Indigenous, Brazilian or not’.

The Indigenous peoples in the savannah region of north-east Roraima have been profoundly affected by a history of nearly 250 years of intense inter-ethnic contact and slavery. They have been under the pressures of colonialism to remake themselves as Indigenous peoples and reinvent their practices of justice. In the context of the Indigenous political movement and the strengthening of ethnic identities, they have asserted Indigenous identities first and their national identity second. However, the presence of international borders with different languages and national justice systems has created strong divisions. This is despite the porosity of these borders and the constant passage across them of Indigenous people who seek work, medical treatment and education in Brazil and visit relatives on both sides of the Brazil–Guyana and Brazil–Venezuela borders.

Bruce Miller (2001), in the case of the north-west coast of North America in Canada and the United States, examines how, for Indigenous peoples, the history of colonialism has frequently led to a loss or distorted sense of their own native practices of justice, similar to what has happened in north-east Roraima. Miller examines ways in which contemporary Coast Salish native communities have dealt with this dilemma and struggled to re-establish control over justice in the face of conflicting pressures resulting from a long colonial history. Looking at different communities, the Upper Skagit Indian Tribe in Washington State, the Stó:lo Nation in British Columbia, and the South Island Tribal Council on Vancouver Island, Miller shows how each of these communities has taken its own direction in establishing a system of tribal justice. In similar ways, Indigenous peoples in north-east Roraima are writing down their corpuses of customary laws, from recent efforts started by the Indigenous lawyer Joênia Wapishana of the CIR, for each local group of communities, aiming at greater Indigenous sovereignty associated with controlled justice programmes.

Indigenous written customary laws: A pathway for jusdiversity

A significant point in the building of corpuses of Indigenous written customary laws was that in 2001 the CIR started a project called ‘Indigenous Law Operators’ within its Juridical Department, and ever since has been claiming the recognition of Indigenous customary laws based on Article 231 of the Brazilian Federal Constitution of 1988, Convention 169 of the ILO, and Article 9 of the Indian Statute (Law 6.001/1973). Since at least 2012, the writing down of what are called locally ‘Indigenous internal regimes’, internal norms or corpuses of customary laws has been an activity supervised by the CIR's Juridical Department from demands made by the Indigenous communities themselves. The then coordinator of the Juridical Department, Indigenous lawyer Joênia Wapishana, who has worked for twenty-two years as the CIR lawyer, stressed the right to free, prior and informed consent based on ILO Convention 169. As mentioned above, this convention was ratified by the Brazilian government in 2002 and came into force in Brazil in 2003. The principal aim has been to create conditions whereby Indigenous communities may solve many conflicts internally, thereby reducing the numbers of people being entered into the national justice system, which means avoiding their being sent to Brazil's increasingly violent and overcrowded prisons.

The internal regimes are still at an incipient stage, and many are in the process of construction. Their domain is, however, limited, since, as many Indigenous people affirm, in cases of crimes classified as heinous, including homicide, attempted homicide and rape, the family who is victim will frequently not accept the intervention of local leaders and demands that the accused be sent to the national justice system. Also, offences practised outside Indigenous lands, in the capital Boa Vista and in smaller towns or ranches are often difficult to be dealt with by local customary laws, since they occur outside the local jurisdiction and frequently involve non-Indigenous people.

Despite the difficulties, some cases of homicide practised on Indigenous lands have been successfully handled by councils of tuxauas, using local customary laws and alternative punishments which are carried out on Indigenous Lands. This is sometimes on lands of other ethnic groups, such as a Wapishana man, who was sent to spend a period of several years living in a distant WaiWai community, and another man who was sent to serve some years living with the Yanomami people as an alternative punishment. Others have served their alternative punishments in distant communities within the same Indigenous Land. Another very isolated case was of an indigenous juvenile I interviewed in the Juvenile Detention Centre in Boa Vista. This offender had raped and killed a seven year old girl in a small town near his community in the municipality of Alto Alegre. After serving his sentence of three years, the maximum penalty for juvenile offenders, the FUNAI employees tried to take him back to his village. However, the vehicle was attacked by residents who did not accept his return to the village, forcing the FUNAI workers to return him to the juvenile detention centre in Boa Vista.

The Indigenous jury and the Indigenous Conciliation Pole

Other measures aimed at promoting greater Indigenous autonomy have been attempts by a local judge to create a jury inside the Raposa Serra do Sol Indigenous Land and the reactivation, in early October 2019, by the Law Tribunal of Roraima (Tribunal de Justiça de Roraima; TJRR), of the first Indigenous Conciliation Pole (Polo Indígena de Conciliação) in Brazil, which has been installed in the Maturuca community in the Raposa Serra do Sol Indigenous Land in 2015. This Conciliation Pole aims to help solve internal conflicts between Indigenous people without depending on the immediate interference of the national justice system, which refers here to the network of institutions of Brazil that work to reach a criminal sentence: the civil, military and federal police forces, public prosecutor (Ministério Público), judiciary (poder judiciário) and public defender (defensoria pública).

The first Indigenous popular jury (júri popular indígena), held on Raposa Serra do Sol Indigenous Land in 2015, marked a judicial decision from the Court of Roraima in relation to the procedure of the Court of the Jury, which was aimed at contributing to the valuation of Indigenous specificities and customs. On 23 January 2013, a crime deemed as attempted homicide occurred when two Macushi men attacked a Patamona man inside a store in the village of Uiramutã, when they were purchasing goods. The case was first taken to a Council of Leaders, but was not solved within the community. The judge, Aluízio Ferreira Vieira, who himself identifies as Wapishana, affirmed that the initiative of the Justice Tribunal of Roraima, in setting up a popular jury,¹⁴ aimed to straighten relations between the state and Indigenous populations by reflecting on the respect for cultural diversity in conflict-resolution processes. The popular jury, made up exclusively of Indigenous people, caused tension by the fact that it involved accusations of sorcery, since the defence lawyer of the accused affirmed that the latter committed the crime because they believed that the victim was a Canaimé, a supernatural lethal being who is part of the cosmology of the Indigenous people of this region and is capable of causing death (Whitehead 2002).

In the Guiana Shield Region, Indigenous people from distant villages and/or from different ethnic groups are subject to accusations of sorcery (Rivière 2001; Roth 1924) and are sometimes identified with Canaimé. The main defence claim centred on the Indigenous tradition known as “Canaimé” and that the alleged crime occurred on an Indigenous land with both the accused and victim being Indigenous, justifying the composition of the popular jury occurring on Indigenous lands to be of Indigenous members. One of the accused was absolved and the other, who confessed to attacking the victim because he considered him to be Canaimé, was sentenced to three months’ imprisonment in open regime for having caused a slight bodily injury.

An anthropological report was demanded, considering that different cultural values were at stake. The anthropologist nominated, Ronaldo Lobão¹⁵ (2015a), was required to present an anthropological interpretation, so as to clarify the case's context, without making judgement. The anthropologist emphasised that the anthropological expertise should not be incorporated into the judicial process as providing ‘truth on the facts’, but as a feasible interpretation informed by both anthropological and legal perspectives. This anthropologist evaluated the decision of the judiciary of Roraima as positive in showing Indigenous peoples how conflicts are solved outside Indigenous communities (Lobão 2015b), recognising that the procedure was not itself Indigenous.

During the popular jury, the judge, Aluízio Ferreira Vieira, invoked the principle of double ius puniendi: the double right to punish means that ‘when indigenous groups deem indigenous crimes on indigenous lands, such a judgment would precede the State's right to make judgment, that is to say, the State should not judge, then it is not even a sealing discussion of the bis in idem’ (Parola et al. 2019: 639).

The first Indigenous people's jury, made up exclusively of Indigenous members of different ethnic groups – Macushi, Ingaricó, Patamona and Taurepang – was evaluated by some Indigenous leaders in Roraima as a great advance by the consideration given to Indigenous culture in a move towards legal pluralism or jusdiversity¹⁶ (Souza Filho 2021). However, some Indigenous leaders saw the jury as part of the national justice system transplanted onto Indigenous lands, despite having an all-Indigenous jury, since it did not comply with Indigenous customary practices.

In a case that occurred in 2000, in which an Indigenous man named Basilio¹⁷ was judged for homicide, the Jury Tribunal of the Federal Justice of Roraima acquitted him, since he had been previously condemned and punished to banishment for ten years from his own community, accepting the thesis of non bis idem, a legal doctrine to the effect that no legal action can be instituted twice for the same cause of action. This decision respected Indigenous cultural diversity and at the same time satisfied state penal proceedings.

My case studies on Uiramutã village in the Raposa Serra do Sol Indigenous Land between 2001 and 2015 include an account of a young man who had fled from his village, Camararém, after being accused of homicide. He fled to Uiramutã, fearing vengeance from the victim's family and presented himself to the village's leader (tuxaua), Orlando Pereira da Silva, who called a meeting of the Council of Leaders. The accused was sentenced to five years’ work with the leader of Uiramutã. After completing his sentence, he asked permission to go back to his community; however, the victim's family did not agree and he negotiated moving to Água Fria community where he had no close relatives. His case was not taken to the police, since it was understood to have been solved internally without the intervention of the national justice system.

In another case, that of a Macushi man named Denílson Trindade who was accused of the homicide of his brother in the Manaó-Pium Indigenous Land in 2009, the community leaders condemned the accused to banishment to the Wai-Wai community in the south-east of Roraima state for five years. A criminal prosecution had started; however, the judge referred the case to the constitutional provisions of the 1988 Federal Constitution and ILO Convention 169 to declare the absence of the federal government's right to punish, declaring his incompetence, since the Indigenous community has the competence to judge an Indigenous person, according to its own customary justice system.

The first Indigenous Conciliation Pole in Brazil was inaugurated on 4 September 2015 by the President of the Federal Supreme Court (STF) of Brazil, but it was later suspended. It was reactivated on 4 October 2019 by the auxiliary judge of the Court of Justice of Roraima, Aluízio Ferreira Vieira, the coordinator and idealiser of the Indigenous Conciliation Pole. The Court of Justice of Roraima offered capacitation for a team of Indigenous conciliators. According to Ferreira Vieira, this is part of a policy of access to justice, since ‘the Pole provides conditions for the autonomy of Indigenous communities to solve their conflicts in a differentiated way, according to their culture and customs’.¹⁸ The Conciliation Pole covers around 76 communities and serves a public of approximately twelve thousand persons.

The Indigenous movement in Roraima has frequently made demands for greater autonomy and measures aiming at decolonisation. In the Declaration of the 48th Assembly of Indigenous Peoples of Roraima State, on 12 March 2019, the Indigenous peoples of Roraima demanded that the Public Ministry (Public Prosecutor – Ministério Público Federal), the Federal and State Public Defender's Offices (Defensoria Pública da União [DPU] and Defensoria Pública do Estado), the State and Federal Courts (Juízo Estadual e Federal), and the Court of Justice of Roraima (Tribunal de Justiça de Roraima), develop and prioritise articulated and dialogued actions which give access to justice for Indigenous communities and recognise the legitimacy of decisions taken based on the corpuses of customary laws of Indigenous communities.

Conclusion

The elaboration of corpuses of customary laws by the communities together with Indigenous lawyers, the Indigenous jury held at Maturuca in the Raposa Serra do Sol Indigenous Land in 2015, and the Indigenous Conciliation Pole implemented in this same Indigenous land (and then reactivated in 2019) reveal initiatives to meet Indigenous demands for greater legal autonomy and thereby reinforce differentiated rights, especially when defendants commit offences within Indigenous lands. These measures are having some success in Roraima, which marks a breakthrough in bringing Indigenous rights into effect. It is also remarkable given the dark years Brazil has been through recently.

These measures aim at the recognition of customary practices for solving juridical matters; they are written in the form of internal customary laws or norms that coexist with the Brazilian system, and brought into effect through leader councils (tuxauas), Indigenous conciliators, and lawyers in a society where legal pluralism or jusdiversity may be put into practice and become a reality. Through the initiatives described above, there is an ongoing attempt by the Indigenous movement to reduce the number of Indigenous people being sent to the extremely overcrowded and notoriously violent national prison system, where conditions are appalling, where organised crime factions run amok, and where Indigenous rights are systematically disrespected. These measures seek to offer alternative punishments, moral corrections and Indigenous ways of resocialisation as alternatives to the national prison system. Led by Indigenous law operators, these struggles to overturn present-day discrimination and achieve the full recognition of differentiated rights mark a major turning point given the long history of injustice perpetrated against native peoples in Brazil.