Abstract
The studies concerning to the ethnic identity in the Social sciences have changed since 1970´s, highlighting the studies developed by anthropologist Fredrik Barth on the ethnic groups and their borders. Would such studies have influenced the understanding on indigenous identity in the Brazilian Law, especially over its repercussion in the criminal field? The formulation of this issue is justified, once many judicial decisions still use as a criterion the existence of documents that confirm the indigenous identity, against the established both by Federal Constitution from 1988 and ILO’s Convention 169. However, this is not the path followed by the judges when there are Indian defendants involved in criminal proceeding. In this study, it starts from the legal sociological slope, and it is used the theoretical research approach. In these cases, the ethnic identity is stated for, next, to be denied when the Indian is considered ignorant by speaking Portuguese, by having personal documents, or by other evidence that show lack of their own ethnic identity. Consequently, legal benefits for special penalty are denied because of ethnic identity. The study analyses one case, which is illustrative for various decisions in the same sense. In this study, it starts from the legal sociological slope and it is used the theoretical research approach.
Indians; ethnic identity; recognition; Federal Constitution; criminal law