Indigenous Legislation in Brazil: a pathway for Jusdiversity and decolonization


Laisa Massarenti Hosoya, University of Windsor

Considering that Legal Pluralism or Jusdiversity refers to the coexistence and interaction of multiple normative systems within indigenous communities, grounded in their own traditions and values, this study contemplates the potential for a decolonial transition from an Indigenista to Indigenous Law in Brazil. When delving into Legal Pluralism in Brazil, a crucial starting point is considering the imperial and republican history of the Brazilian State, which imparted a colonizing and assimilationist character onto Indigenous Peoples. Their condition was perceived as a transitional state, subject to transformation from savagery to civilization, non-integration to integration, and as acculturated beings in need of assimilation into Western society. A key distinction emerges between "Indigenous Law" and "Indigenista Law." The former is grounded in the rights inherent to indigenous communities, shaped by their customs or customary law, while the latter comprises a set of regulations formulated by nonindigenous individuals for Indigenous Peoples. To explore these concepts and propositions, this paper adopts a methodology centred on an extensive literature review in the social sciences, alongside an examination of both international and Brazilian legislation. Special attention is given to the National Ordinance GM/MPI No. 103, issued on April 18, 2023, by the Ministry of Indigenous Peoples of Brazil, establishing a working group of Indigenous jurists tasked with analyzing and proposing revisions to Act 6001/73, known as the "Indian Statute." The research concludes that despite the significance of these legal initiatives, traditional judicial policy decisions have frequently underestimated the intricacies of community justice. Existing research on the topic tends to be fragmented or confined to alternative conflict resolution mechanisms, overlooking the diverse and specific nature of community justice practices crucial to societal reproduction. Notably, the Ministry of Indigenous Peoples in Brazil has been fostering a secure and inclusive space for dialogue with various indigenous groups, facilitating discussions on ways to integrate indigenous justice and its legal pluralism.

This paper will be presented at the following session: