The criminalization of indigenous people in Roraima state, Brazil: indigenous strategies to bring their rights into effect in the face of injustices and inequalities

The criminalization of indigenous people in the prisons of Roraima state, Brazil, is examined, in which the justice system, as throughout Brazil, has no mechanisms to identify indigenous people and recognize their differentiated constitutional rights, reinforcing the inequalities and injustices for indigenous people, the most oppressed and discriminated since colonial times. Over the past decade, indigenous organizations in the state capital have drawn attention to this problem and taken protagonist measures to try to change it. The Indigenous Council of Roraima (CIR), through their lawyer, Joênia Wapichana, elected, in 2018 the first Indigenous woman to be a federal deputy, set up a project to write down indigenous oral law so that it could be used locally to deal with criminal cases, encouraging indigenous communities to resolve accusations of crimes through councils of local leaders and thereby avoid them being handed over to the mainstream criminal justice system.

La criminalización de los pueblos indígenas en el estado de Roraima, Brasil: estrategias indígenas para la cumplimiento de sus derechos frente a las injusticias y desigualdades Resumen Se examina la criminalización de los indígenas en las cárceles del estado de Roraima, Brasil, en el que el sistema de justicia, como en todo Brasil, no cuenta con mecanismos para identificar a los indígenas y reconocer sus diferentes derechos constitucionales, reforzando las desigualdades e injusticias para los indígenas, los más oprimidos y discriminados desde la época colonial. Durante la última década, las organizaciones indígenas de la capital de este estado han llamado la atención sobre este problema y han dado pasos clave para tratar de cambiarlo. El Consejo Indígena de Roraima (CIR), a través de su abogada Joênia Wapichana, elegida en 2018 como la primera mujer indígena en ser diputada federal, puso en marcha un proyecto de redacción del regimiento indígena para que pueda ser utilizado localmente para atender casos penales, alentando comunidades indígenas para resolver los cargos por delitos a través del asesoramiento de líderes locales y así evitar que sean entregados al sistema de justicia penal convencional. I have approached the theme of the criminalization of indigenous people in Roraima in previous articles (Baines, 2009(Baines, , 2016a(Baines, , 2016b, and my object here is to evaluate some of the changes that have occurred from 2008 until 2020, the crisis in the prison system with a rapidly increasing prison population which the State has been incapable of controlling, extreme overcrowding in prisons, the infiltration of organized crime within prisons, and the resulting reinforcement of inequalities and injustices brought about by criminalizing and imprisoning indigenous people. I look also at some of the indigenous strategies to start to deal with this situation through the protagonism of indigenous organizations. Before looking at the criminalization of indigenous people, it is necessary to outline the current plight of indigenous peoples in Brazil. Since 2019, the Brazilian government of president Jair Bolsonaro is threatening indigenous rights, with aggressive measures to reduce their autonomy, sell off their territories for logging, mining, highway projects and hydroelectric schemes, and implement policies of "forced assimilation", similar to government indigenist policies of the military dictatorship . President Bolsonaro is encouraging the invasion of indigenous territories and attacks against communities, promoting "forced integration", pushing a mining bill which would open up indigenous territories to large-scale mining, and to agribusiness, supporting the "marco temporal" an unconstitutional figure, supported by the ruralist bench in Brazilian congress, which stipulates that if indigenous peoples were not living on their land on 5 October 1988 -the date of Brazil's most recent constitution -they do not have the right to live there. It does not take into consideration the fact that many indigenous peoples had been forcibly dislocated from their lands, and also, up to the 1988 Constitution, indigenous people could not defend their rights legally being under State tutelage. The government is also facilitating the spread of the Covid-19 pandemic in indigenous territories by failing to present an adequate plan to protect them from invaders as well as refusing to provide adequate health care plans to combat the virus in indigenous communities. At the same time the reduction of funding for the National Indian Foundation (Fundação Nacional do Índio -FUNAI) and dismantling of environmental policies provide further threats to indigenous rights. Land Camp" (Acampamento Terra Livre -ATL), the national mobilization which has been organized every year since 2004, to make visible the situation of indigenous rights, and to claim from the Brazilian State that the lawful demands of Indigenous peoples be attended to, together with several other indigenous organizations, has denounced the government of president Jair Bolsonaro for practicing genocide due to its complete neglect of indigenous peoples, and the president's incentives to invade indigenous lands, supporting agricultural expansion on indigenous territories, invasions by miners, and destructive, exploitative and predatory policies towards natural resources and the environment. In face of non-compliance with the measures demanded by the APIB, the same STF minister determined, the federal government, affirming that there was a profound disarticulation of government organs involved in the elaboration of this document, and his decision to partially approve it so that lives could be saved.
In the midst of the pandemic, at the IV Regional Assembly of the Raposa Serra do Sol Indigenous Land, held The ODIC also works toward making indigenous people in the city conscious of their legal rights.
The FUNAI, despite being grossly underfunded, has also taken initiatives to investigate the serious situation of indigenous people in prisons, starting with a visit made by a team from the ombudsman of the organ in October 2014 to the Monte Cristo Agricultural Prison 8 . Some indigenous lawyers and one indigenous judge have also shown concern over the criminalization of indigenous peoples (Eloy Amado, 2020). The most effective results are coming from indigenous people themselves, who through their protagonism are working to change a desperate situation.

Theoretical guidelines
To examine the situation of indigenous people in prisons, the notion of "total institution", of Erving Goffman (1990Goffman ( [1974) is useful to describe a situation in which there is "a basic division between a large controlled group, that we can denominate the inmate group, and a small supervision team" (1990: 18). However, in dealing with indigenous people it is necessary to take into consideration the specificities of ethnic differences and the institutionalized racism of the national society, constructed over centuries in colonial and neocolonial situations, where indigenous people have been the most oppressed of the oppressed in a national society with immense social inequalities and injustices, a legacy of the coloniality of power (Quijano, 2000), racism which permeates all government institutions, including the prison and justice systems.
Looking at the colonial history of this region, the imprisonment of indigenous people is nothing new.
In the second half of the XVIII century, the Portuguese military occupation of what is now Roraima, was carried out by capturing indigenous peoples and subjecting them to discipline in settlements which shared the characteristics of a colonial "total institution" (Goffman 1974). Indigenous people from different ethnic origins were forcibly put together in "multiethnically composed settlements", described by Nádia Farage (1991: 125), who argues that the process of colonization met with strong resistance from the autochthonous population with a series of uprisings against the "overexploitation of the labor of settled Indians" (Farage, 1991: 131) and massive breakouts, that spread through these settlements "in proportion to the violence used by the Portuguese to repress them" (Farage, 1991: 131). After the repeated failure by the Portuguese military forces to keep indigenous people in these settlements along the Rio Branco, they began sending them to serve as slave labour in distant parts of the Amazon basin where escape and return to their villages were impossible. During the XIX century, Paulo Santilli (2002) describes illegal expeditions to enslave indigenous people in this region, long after indigenous slavery had been banned in the Amazon basin in 1755. This author reveals that "slavery continued in the form of private expeditions that counted on the active support of government representatives in the area to recruit indigenous labour for rubber extraction" (Santilli, 2002: 493) in the forests of the lower Rio Branco. Santilli (2002) describes how these nineteenth-century slavery expeditions were internalized in Macushi cosmology, which saw non-indigenous settlers as cannibals who took indigenous people downstream, from where most never returned, the victims of violent exploitation by forced labour and diseases that consumed their bodies. As a consequence of these slave raids, indigenous peoples fled from contact with white people.
These settlements, part of an attempt to enslave indigenous people, in a different epoch and on a smaller scale, were not very different from modern prisons which aim to "reeducate" detainees and transform them into an obedient labour force to serve the State.
The notion of prison-institution of Michel Foucault (1995[1979), in which this author, from a universalist perspective which does not take into account ethnic and racialized differences within this institution in colonial situations is, however, useful for describing the universalist policies of the national society to which indigenous people are submitted, disregarding their differentiated constitutional and international rights and treating them as part of an idealized homogenous Brazilian society where "all are equal", blatantly ignoring the racialized and class inequalities that characterize Brazilian society. Foucault describes the prison-institution in which, procedures were being elaborated for distributing individuals, fixing them in space, classifying them, extracting from them the maximum in time and forces, training their bodies, coding their continuous behaviour, maintaining them in perfect visibility, forming around them an apparatus of observation, registration and recording, constituting on them a body of knowledge that is accumulated and centralized. The general form of an apparatus intended to render individuals docile and useful, by means of precise work upon their bodies… (1995: 231).
Foucault adds that "the prison must be an exhaustive disciplinary apparatus … it gives almost total power over the prisoners; it has its internal mechanisms of repression and punishment: a despotic discipline" (1995: 235-236) and that "Although it is true that prison punishes delinquency, delinquency is for the most part produced in and by an incarceration… The delinquent is an institutional product (1995: 301).
Indigenous prisoners, like non-indigenous prisoners, are broken down through being subjected to the brutal violence of the prison situation and its disciplinary procedures, as many indigenous people commented, in phrases such as, "Once they are put inside, there is little hope of recovery", "When they go into prison, there is little more we can do for them". For this reason many indigenous prisoners and indigenous people commenting on them, stress the need to create alternative community measures and a separate wing of the prison reserved for those indigenous people whose situation cannot be solved within their communities.
In an undergraduate dissertation, Jonildo Viana dos Santos, focuses the prison system in Roraima, and affirms that "Today it is notorious that the prison is a school for the maintenance, reproduction and even In his master´s dissertation in Social Anthropology at the Federal University of Amazonas, Felipe Pereira Jucá (2019), argues that imprisonment is used as a primordial way of supposedly solving conflicts and also, frequently, as a purely disciplinary method even when there is not a formal accusation. His research reflects on the penal responsibility of indigenous people, exposing the contradictions and mistakes observed among the legal dispositions with a supposed justice undertaken by the Judiciary Power. A lawyer by academic formation, he turns to anthropology to unite theoretical elements which discuss and question the legitimacy of the established powers and the structures of punishment of the State which reflect the monopoly of physical and symbolic violence. He relates that he had been invited by the Public Defender's Office in Amazonas State to work in São Gabriel da Cachoeira, in Northwest Amazonas, with the purpose of providing legal assistance to the low-income population, until a public defender was appointed for that task. The crucial point he emphasizes is that the penal question in Brazil has not passed through a qualified and scientifically rigorous debate to take into account the ethnic asymmetries and the relations between traditional peoples and agencies of control and punishment of the State in a colonial situation. Intellectuals and operators of the law reproduce the same evolutionist knowledge when they refer to indigenous peoples.

Indigenous people in the prison system in Roraima
An important issue in research on indigenous people in the prison system of Roraima, and other regions of Brazil, is that many prisoners do not identify themselves as such; many from fear of being further discriminated.
As I frequently heard in my interviews, as poor people and also indigenous they face a double discrimination by other prisoners and by prison staff. Some told me that they preferred not to identify as this could make their situation even worse. Some prefer to not identify as indigenous in public spheres such as life in prison, and only do so when they are socializing with their relatives, friends and other indigenous people. However, over the years since I started this research, the number of indigenous people willing to identify has increased considerably, in attempts to bring into effect their differentiated rights.
The fact that many people do not choose to identify as indigenous can also be explained, in part, by the context of Brazilian society with its plethora of identities, where many ethnic identities are subsumed under the National Census category "brown" (cor parda). João Pacheco de Oliveira emphasizes that "In the North (of Brazil) ... the 'brown' category [of the National Census] evokes predominantly indigenous ancestry or identity" (1999: 134), in contrast to some other regions of Brazil where it evokes Afro-Brazilian ancestry or identity.
In the prison system of Roraima, I have interviewed indigenous people who publically claimed their ethnic identity but faced prejudices from prison staff and other prisoners since they did not have an "indigenous appearance" according to common sense ideas about how an indigenous person should look. Soraya 9 told me, "Just because I am light skinned and have a better education than most indigenous prisoners, nobody believes I am indigenous, but I was brought up in the Surumu 10 . My mother is Macushi and my father is non-indigenous from the Northeast of Brazil".
Others, who the prison staff referred to as being indigenous, because of their phenotypes, did not see themselves as such, or were unclear about whether they could be indigenous. Paulo, a man at the semi-open detention centre, who other detainees told me I should interview if I wanted to interview indigenous people, told me that he was not sure if he could identify himself as indigenous, since although his father and mother were indigenous and born in villages on Indigenous Lands, he had been brought up in Boa Vista and had never lived for long periods in villages. However, after talking for about one hour, when he understood that I would not discriminate him for being indigenous he admitted, "I suppose I am indigenous, as Mummy and Daddy were indigenous". Some people understood that being indigenous required living in villages in rural areas and, since they had been brought up in the city, did not think that they could be considered indigenous, a popular regional stereotype which contributes to making indigenous people in cities invisible, denying their existence. A few did not know their ancestry, such as Iracema, in the Female Jail, who was referred to as "a real Indian" by some of the prison staff, because of her physical appearance and name 11 . She identified herself as such because, as she related to me, she had been told that her parents were indigenous from Amazonas state, but she did not know their ethnic groups, since they had both died when she was very young.
As regards the category "brown" (pardo) of the Brazilian national census, used also in the prison system, Pacheco de Oliveira affirms that, The category "brown" (pardo") is a generic indicator for mixing between different colour groups. This is not at all the meaning of the condition of indigenous people, which refers to a differentiated legal status, not to a situation of alleged internal homogeneity and external distinctiveness as to colour. In declaring himself as "indian" or "indigenous", the person being interviewed for the National Census is not intending to include himself in a classification as to colour, but to speak of the specificity of his rights and his relationship with the State. By maintaining a form of social organization and cultural traditions that he considers to come from pre-Colombian populations, he self-identifies himself as "indigenous" and demands a different treatment from the State… (Pacheco de Oliveira, 1997: 69). 9 I use pseudonyms to preserve the anonymity of the prisoners.
10 The community of Surumu is localised in the Raposa Serra do Sol Indigenous Land. 11 "Iracema" is the name of a character in the romantic novel, of the same name, published in 1865 by José de Alencar. The first novel of Alencar´s "Indianist Trilogy", that focused on the foundations of the Brazilian nation was "The Guarani", published in 1857, followed by "Iracema", and finally by "Ubirajara" in 1874. In the novel, "Iracema", Alencar tries to remake the history of the Brazilian colonial state of Ceará, with Moacir, the son of the indigenous woman, Iracema, and the Portuguese colonizer, Martim, as the first true Brazilian in Ceará.
It is important to remember too, that in Brazil, the term "Indigenous Land" is a juridical category which designates lands of traditional use and occupation by indigenous peoples, demarcated by the federal government, which they need to maintain their ways of life, according to Article 231 of the Federal Constitution (1988). In Brazil, a total of 1.173.776 km2 or approximately 13.8% of the land surface have been demarcated as "Indigenous Lands" (2021), although many of these demarcated lands have been invaded and occupied by non-indigenous people 12 and many have not had their demarcation process completed, nor even started. In Roraima, a Brazilian state which has the largest population of indigenous peoples in relation to non-indigenous, "Indigenous Lands" make up a total of 10.370.676 hectares or 46.20% of the land surface of this state. However, less than fifty years ago most of Roraima consisted of indigenous territories. Throughout the northeast of Roraima state, the invasion of indigenous territories and the demarcation of small fragmented Indigenous Lands by the FUNAI in the 1980s, with the exception of the three larger Raposa Serra do Sol, São Marcos and Jacamim Indigenous Lands, has resulted in small overpopulated fragmented Indigenous Lands, with increasing populations and no further space to expand areas of cultivation, leading many young people to migrate to Boa Vista, where some are subjected to criminalization. The concept of total institution presented by Goffman (1974), of a large controlled inmate group, and a small supervision team, must be reformulated in the prison system in Brazil. In 2015, I was told at the Monte Cristo Agricultural Prison, that there were more than one thousand four hundred detainees in this unit at the time and often as few as nine members of the supervision team present, who had no means whatsoever of controlling the situation inside the prison. However, I was informed that internal control was maintained to some extent by the inmates own organization through the appointment of heads of prison wings, who were usually older prisoners appointed informally by the inhabitants of each wing of the buildings inside the prison to maintain some order within their wing.

Field research in Roraima
I mention below some of the legislation to which indigenous people are subject, to emphasize that if this legislation were to be effectively applied, most indigenous people would not be in prisons, and the enormous gap between, on the one hand, a legislation which provides possibilities of respecting indigenous rights and, on the other hand, the everyday practices of the justice system, which make indigenous people invisible, denying their indigenousness, incorporating institutional racism and acting to deny their rights. Until indigenous organizations pressure to bring into effect the differentiated rights of indigenous people who are criminalized and imprisoned, and thereby bring into effect these rights, the legislation will remain a dead letter.
In Brazil, Indigenous people come under Law 6.001, 19.12.1973 (the Indian Statute), in which, according to Article 56, In the case of the conviction of an Indian for a criminal offense, the penalty should be mitigated and in its application the Judge will also take into account the degree of integration of the Indian.
Single Paragraph. The sentences of imprisonment and detention shall be served, if possible, under a special semiopen regime, in the place where the federal agency for assistance to Indians has an office closest to the condemned man's residence.
Article 57 of this Statute, states that, "The application by tribal groups, according to their own institutions, of criminal or disciplinary sanctions against their members shall be tolerated, provided that they are not cruel or opprobrious, the death penalty being prohibited under all circumstances".
According to the Federal Constitution of Brazil of 1988, Indians shall have their social organization, customs, languages, creeds and traditions recognized, as well as their original rights to the lands they traditionally occupy, it being incumbent upon the Union to demarcate them, protect and ensure respect for all of their property (Article 231). Thereby, the Federal Constitution of 1988 guarantees to indigenous people the right to be different and to be treated differently, respecting their cultural differences. In the event of the execution of a custodial sentence or imprisonment of indigenous people, compliance with the provisions of Articles 56 and 57 of the Indian Statute is mandatory.
Indigenous people also come under international legislation which the Brazilian government is signatory to, such as the Convention 169 of the International Labor Organization (ILO). According to Article 10, Paragraph 2, in the case of imprisoned Indians "Preference must be given to other types of punishment than imprisonment".

Inside prisons in Roraima
The testimonies of indigenous prisoners shed light on the enormous injustices they face and lack of information about their differentiated rights, in addition to the racial discrimination they face from some prisoners, prison agents, police, prosecutors, public defenders and judges. Considering the disproportionately asymmetrical structure of interethnic relations that underlie the social, police and penal practices, in a region where the presence of indigenous people is conspicuous and racism is very strong, it is necessary to consider the obstacles that indigenous people face to have access to justice and to consider the possibilities of creating differentiated institutions with alternative penalties, respecting their constitutional rights and international legislation. The majority of indigenous people in prison identified as Macushi or Wapichana (Figure 1), the numerically largest ethnic groups in the northeast of Roraima who are in intense contact with the regional society. Many indigenous people interviewed did not understand why they were in prison, many waiting for years in preventive prison for their cases to be judged, often far beyond the time they would have served if they had been judged, in subhuman conditions. While some recognize that they have practiced a crime, many swear that they have been imprisoned unjustly with no recourse to defend themselves. Some have been imprisoned for cultural misunderstandings such accusations of "rape of vulnerable" (girls under 14 years of age, according to Article 217-A of the Penal Code) when they allege that they were living in a marital relationship with young women with the agreement of the families concerned and according to their customs. Others, intimidated by the police and the legal system, could not make themselves understood and were imprisoned as a result of communication difficulties, including limited understanding of Portuguese, issues that I have approached in another publication (Baines, 2016b).
Prisoners who consider themselves poor, which includes most indigenous detainees, who cannot pay a private lawyer fees to help them get out of prison or have their sentence reduced, revealed the hopelessness and injustice of their situations, waiting to be judged (Baines, 2009) and not knowing how long they will be kept in limbo. Many were indignant for having been imprisoned unjustly and not given a chance to defend themselves against accusations of crimes they swear they had never committed. One man interviewed at the Monte Cristo Agricultural Prison, who suffered from a heart condition, told me that he had had a pacemaker implanted some years before, and that it was due to be replaced more than a year previously. However, his appeals to consult a doctor had been consistently ignored and he was suffering from fainting spells, "My heart condition is getting worse. I must have the pacemaker renewed. If not, I´m going to die here in prison".   by the police and prison staff under the amorphous category "brown" (pardo) (Figure 3 and 4). This is an  (2007), which establishes special procedures for the treatment of people who self-identify as indigenous in the process of trial, accusation and imprisonment, aiming to ensure the rights of this population in the criminal sphere of the Judiciary. This is an important step toward recognising indigenous peoples differentiated rights, but will need further measures for it to be brought into effect, especially pressure from indigenous organisations.    (Foucault, 1979) aimed at deterring them from starting further rebellions.

Some results of this research project
When this research was started in 2008, the project initially included me, in January and February, and two post-graduate students in anthropology from the University of Brasília In view of the aggressively anti-indigenous policies of the Bolsonaro government, aimed at dismantling indigenous rights and also environmental legislation to encourage the invasion of indigenous territories, demarcated or not, the protagonism of indigenous organizations at the national and regional level has become the principal tool to defend their rights against these onslaughts, together with community actions at the local level. In the prison system of Roraima, mobilizations among indigenous people in prison aim to bring their rights into effect against the genocidal practices of criminalizing and imprisoning native peoples.