Ao Norte e ao Sul de Abya Yala: um estudo comparado sobre a jurisdição criminal dos Povos Indígenas nos Estados Unidos da América e no Brasil à luz do direito à autodeterminação

Abstract

In the United States of America, the rules to define whether the criminal jurisdiction involving indigenous people is tribal, federal or state take into account:1) the place where the crime was committed, if it is an Indian country; 2) the type of crime committed by the defendant; 3) whether the agent of the criminal conduct is indigenous or not; and 4) whether the victim is indigenous or not. In Brazil, the criminal jurisdiction to prosecute and judge indigenous peoples is determined only by the type of crime committed, according to Precedent 140 of the Superior Tribunal de Justiça. In addition to the lack of formal establishment of an indigenous court, in a few isolated cases the Brazilian Judiciary observed the judgment already carried out by the indigenous community, as is the case of Denilson Trindade Douglas. This work aims to study how the US system of criminal jurisdiction for Indigenous Peoples can contribute to rethinking the Brazilian indigenous criminal jurisdiction system to implement the right to self-determination of the different Indigenous Peoples that inhabit Brazil. In this purpose, from the decolonial theoretical matrix, the research analyzes both the right to self-determination and the specific regulations for Indigenous Peoples of human rights of International Law, namely: Convention n. 169 of the ILO, United Nations Declaration on the Rights of Indigenous Peoples and American Declaration on the Rights of Indigenous Peoples. The criminal jurisdiction system applicable to the American Indigenous Peoples is investigated, with the study of the paradigm case Jimcy McGirt v. Oklahoma, and the study of the criminal jurisdiction of Indigenous Peoples in Brazil, in addition to the study of the paradigmatic case Denilson Trindade Douglas. As a methodology, it uses the descriptive and comparative method, whose objective is to highlight the differences between the two systems of criminal jurisdiction and point out paths that can be followed by the Brazilian State towards the increase of the right to self-determination of Indigenous Peoples in Brazil. The method used in the development of the research is the bibliographical review and the comparative case study, having as research techniques the bibliographical, the documental, through direct and indirect documentation, and the jurisprudential, with qualitative data analysis. As conclusion whose objective is to highlight the differences between the two systems of criminal jurisdiction and point out paths that can be followed by the Brazilian State towards the increase of the right to self-determination of Indigenous Peoples in Brazil. The method used in the development of the research is the bibliographical review and the comparative case study, having as research techniques the bibliographical, the documental, through direct and indirect documentation, and the jurisprudential, with qualitative data analysis. As conclusion whose objective is to highlight the differences between the two systems of criminal jurisdiction and point out paths that can be followed by the Brazilian State towards the increase of the right to self-determination of Indigenous Peoples in Brazil. The method used in the development of the research is the bibliographical review and the comparative case study, having as research techniques the bibliographical, the documental, through direct and indirect documentation, and the jurisprudential, with qualitative data analysis. As conclusion having as research techniques the bibliographical, the documental, through direct and indirect documentation, and the jurisprudential, with data analysis in a qualitative way. As conclusion having as research techniques the bibliographical, the documental, through direct and indirect documentation, and the jurisprudential, with data analysis in a qualitative way. As conclusion, it is assumed that in the United States of America there is recognition of a certain autonomy of Indigenous Nations (tribes), which are dependent domestic nations, as they retain certain powers to prosecute and judge some crimes that occur within their territories (Indian Country), which is not yet a Brazilian reality. But the demarcation of indigenous territories and the legal status of the Indian Country can contribute to rethinking the Brazilian indigenous criminal jurisdiction system, in the sense of realizing the right to self-determination of the different Indigenous Peoples that inhabit Brazil.