STATE PERFORMANCE BEFORE INDIGENOUS “CRIMES”:

A brief exposition on Brazilian jurisprudence

Abstract

In view of the international and constitutional protection of native peoples, a legal analysis of millenary cultural practices in indigenous communities is essential in view of the internal understanding of the illicit and the framing of the act in the light of the cultural defense theory, under penalty of State to act in disagreement with the constitutional and international protections and guarantees granted to indigenous peoples, which justifies the choice of theme. The construction of this study takes place through the hypothetical-deductive and hypothetical-comparative methods, the latter will take place through the exposition of some judgments. One of the objectives achieved was the demonstration that native cultural practices can be considered as a culturally motivated crime through the application of supralegal causes of exclusion of illegality embodied in the multiculturalist cultural defense theory. This is because it was understood that the framing of such an act as a prohibition error no longer serves the current dilemma, given that it is a segregating and prejudiced view, still adhering to the egalitarian assimilationist model. But, the practical exposition of such theoretical guidelines will be sought in the performance of the State in the face of concrete cases, in order to achieve an adequate provision of justice to minority groups in Brazil, serving this project as a beacon to illuminate the obscurities that involve indigenous peoples and which, for the time being, remain veiled by state political interests.