Uma análise crítica da culpabilidade dos índios em face à Constituição Federal de 1998.

Abstract

The present work seeks to elucidate, from a legal point of view, the mistaken equation of the indian to the individual with a mental development incomplete or retarded, a consequence of an ethnocentric and integrationist thinking, who consider the indian with a being with reduced mental faculties. For the understanding of the theme, a brief study of the first contacts of the portuguese with the natives is necessary, demonstrating the evolution of indigenous rights in brazilian constitutions and other legal provisions. Unfortunately, despite the fact that FUNAI, an indigenist organ, is active in the defense of these, the Indian is still treated as a being devoid of complete mental development. Thus, an analysis is made of the concept of criminal culpability of the Indians, as well as their elements and excluding guilt. Thus, after the definitions of these guilty elements, it is perceived that guilt is variable and that its imputation depends on the reproducibility of conduct in a given society, so that such a concept is not immutable, its variation is admitted according to the proper analysis of the specific case, leaving the burden of jurisprudence such a burden. Therefore, it is up to the magistrate to analyze the criminal culpability of the indians, to verify the existence of three essential elements: Imputability, Conscience of Unlawfulness and Requirement of diverse conduct. In the absence of any of these elements will imply the absence of guilt, and the judge should use the anthropological report to assess the level of awareness of the Indian in relation to the illegality of his conduct. In this way, he must leave aside the distorted stereotype about the natives about inimputability.