Since the colonization of the “New World,” indigenous people have struggled with establishing and maintaining their rights as citizens while still keeping to their cultural heritage. There is a continuing struggle even in today’s modern age, regarding the extent of indigenous peoples’ rights, particularly with regard to the maintenance of their cultural traditions and land. However, in recent years, there have been serious movements as well as legislation passed to help secure the rights of indigenous people across the globe. The International Labour Organization (ILO) helped start the trend by passing such legislation in 1989. Many South American countries ratified the ILO’s “Indigenous and Tribal Peoples Convention, 1989,” and since ratification, many of those countries have endeavored to secure and enforce the rights of indigenous peoples, Peru being the prime example. Peru, in particular, has been a model to follow when it comes to passing and enforcing legislation securing the rights of the indigenous in culture and land. But even in Peru, there are still enforcement and recognition issues when it comes to the indigenous people.

It is the purpose of this Note to expound on the development and extent of indigenous cultural rights on the international and domestic plane, focusing on Peru. This Note will also note the shortcomings of law and policy in Peru, regarding the indigenous people. While the ILO and United Nations (UN) have made conscious international efforts to secure change for the indigenous, it is not quite enough because there is still a struggle for recognition and enforcement of indigenous rights on the domestic level. Unless there is a significant change of attitude on the domestic level, the struggle for the indigenous will continue. Passing new domestic legislation or ratifying international conventions will not likely be enough. To really make an impact, continuing positive policies and attitudes towards this issue will have to be adopted, circulated, and accepted.

I. INTRODUCTION

Indigenous people are a culturally unique class of people. 1 “Indigenous identity, though evidently fluid and constantly changing, is linked to a prevailing sense of cultural difference and to discrimination by dominant society.” 2 In other words, the commonality that defines indigenous peoples all across the globe is the desire to adhere to their distinct cultural roots, even if it means being different from and discriminated against by modern society. Being a unique class of people, indigenous people need unique considerations by international conventions and domestic legislation. Unlike most groups or classifications of people, recognition of their individual human rights is not sufficient.3 Indigenous people need their collective human rights to be recognized and enforced to help them continue to exist as they do and have for centuries. The extent of indigenous rights has been at issue for centuries, and it is still at issue even today. 4 This is the continuing struggle.

Every now and again something is seen on TV or read in a newspaper that brings indigenous people and the question of the extent of their rights to center stage. In fact, this was recently a hot topic in United States’ news. When this Note was written in 2016, a pipeline was about to be built in North Dakota near the Standing Rock Sioux Tribe reservation.5 The indigenous people, who lived on the reservation, and many others, were protesting the pipeline’s construction because it was set to be built over sacred Native American burial grounds.6 Further, there was a concern that the pipeline may leak or break and cause environmental damage to the reservation and area surrounding it. 7 Despite the dissent from the indigenous people, the President of the United States gave his stamp of approval to continue construction of the pipeline, believing it would “‘serve the national interest.’”8 Protests of the pipeline escalated to violence.9 This is a classic example of the dominant culture trying to subvert indigenous culture in the name of the “common good,” and it is not just the United States that has had these issues.10 Even Peru, one of the current national leaders in indigenous rights,11 has recently had some troubles with its oil pipeline contaminating and infringing on indigenous lands.12 Two of the most recent spills in 2016 caused the leaders of the indigenous community affected by the spills to meet with Peruvian government officials to discuss fixing the problem.13 The meeting ended at an impasse, which led to protests by the indigenous community a little while later.14 Both this and the United States’ example demonstrate why the extent of indigenous rights needs to be explored. Either indigenous people have the right to live in adherence with their cultural traditions, which include the necessary accompanying land and resource rights, or they do not. If the indigenous do have these rights, then their domestic government needs to honor and enforce those rights.

For the most part, the international and domestic communities are coming to understand and accept that “Indigenous Peoples should remain, nonetheless, . . . interpreters of their own situations and masters of their fates.”15 The indigenous people have as much a right to this as any other human being does. The fact that their culture is different from the majority of the modern world does not negate this. Despite opposition, assimilation attempts, suffering, poverty, and many more atrocities, the indigenous, for the most part, have remained true to their culture and heritage.16 How can anyone deny indigenous people their right to live as they do and have lived for hundreds of years when they have clung to it with such steadfast faithfulness? It is possible for two cultures to occupy the same space without clashing or trying to assimilate each other, and Peru has become one of the best, albeit not perfect, examples of this being possible.

II. THE GENERAL HISTORY AND IMPACT OF THE COLONIZATION OF PERU

To understand this continuing struggle of clashing cultures and fighting for recognition and enforcement of indigenous rights, it is best to start with the history of Spanish exploration and subsequent colonization of Peru. It really began with Christopher Colon’s, more popularly known as Columbus, desire “to exceed the bounds which had limited the most daring and successful navigators.”17 By the late 1400’s, the East Indies had become, by way of trade, very profitable to Europe.18 For this reason, the nations of Europe greatly desired a direct route to the East Indies because it would afford the nation who found it “the richest commerce in the world.”19 Using his knowledge, Columbus conceived of a way to get to the East Indies by sailing west,20 and by doing this, whether he knew it or not, Columbus would become “the initiating agent of a vast and historic transformation.”21

---

† Samantha Piñeiro Graham received her J.D. from Regent University School of Law in May 2018. She also received her M.A. in Government from Regent University Robertson School of Government in 2018 and her B.A. in Government from Regent University College of Arts and Sciences in 2014. During her time at Regent University School of Law, she served as Editor-in-Chief of the Journal of Global Justice and Public Policy and supervised the publishing of this volume.

1 See MATTIAS ÅHRÉN, INDIGENOUS PEOPLES’ STATUS IN THE INTERNATIONAL LEGAL SYSTEM 83–84 (2016).

2 Rachel Sieder, Introduction to MULTICULTURALISM IN LATIN AMERICA: INDIGENOUS RIGHTS, DIVERSITY AND DEMOCRACY 2 (Rachel Sieder ed., Palgrave MacMillan 2002).

3 Razida Torres, The Rights of Indigenous Populations: The Emerging International Norm, 16 Yale J. Int’l L. 127, 133 (1991).

4 See discussion infra Section III.

5 Dakota Pipeline: What’s Behind the Controversy? BBC (Feb. 7, 2017), http://www.bbc.com/news/world-us-canada-37863955.

6 Id.

7 Id.

8 Id.

9 Id.

10 See Press Release, U.N. General Assembly, Indigenous Peoples Distinct Cultures Erode Without Respect for Rights Over Lands, Territories, Natural Resources, Forum Told, U.N. Press Release HR/4917 (May 14, 2007) [hereinafter Press Release, Indigenous Peoples Distinct Cultures].

11 ANDINA, Peru, Model for Protection of Indigenous Peoples in Isolation, ANDINA –PERU NEWS AGENCY (June 2, 2016) [hereinafter ANDINA] http://www.andina.com.pe/ingles/noticia-peru-model-for-protection-of-indigenous-peoplesin-isolation-615303.aspx.

12 Barbara Fraser, Negotiations and Protests Ongoing in Wake of Oil Spills in Peruvian Amazon, MONGABAY (Sept. 5, 2016), https://news.mongabay.com/2016/09/negotiations-andprotests-ongoing-in-wake-of-oil-spills-in-peruvian-amazon/.

13 See id.

14 Id.

15 Dr. Erica-Irene A. Daes, Equality of Indigenous Peoples Under the Auspicies of the United Nations – Draft Declaration on the Rights of Indigenous Peoples, 7 ST. THOMAS L. REV. 493, 499 (1995).

16 See Elvira Pulitano, Introduction to INDIGENOUS RIGHTS IN THE AGE OF THE UN DECLARATION 5–6 (Elvira Pulitano ed., Cambridge Univ. Press 2012).

17 HON. JOHN M. NILES, HISTORY OF SOUTH AMERICA AND MEXICO: COMPRISING THEIR DISCOVERY, GEOGRAPHY, POLITICS, COMMERCE AND REVOLUTIONS 7 (1838).

18 See id.

19 Id.

20 Id.

21 STEVE J. STERN, PERU’S INDIAN PEOPLES AND THE CHALLENGE OF SPANISH CONQUEST: HUAMANGA TO 1640, at xxii–xxiv (Univ. Wis. Press, 2nd ed. 1993).

INTRODUCTION

In 1993, Proposta de Emenda à Constituição (Proposal of Constitutional Amendment) 171 (PEC 171) was proposed in an effort to combat what was seen as a rise in violent crime committed by Brazilian youth.1 If ratified in its original form, PEC 171 would reduce the age of criminal responsibility in Brazil from eighteen to sixteen years old. 2 While the Amendment did not gain traction when first introduced, 3 recent highly publicized juvenile crimes brought it to the forefront of Brazilian legislation in 2015. 4 The Amendment has since garnered a considerable amount of congressional support despite being fiercely condemned by the Brazilian president.5

The Brazilian government continues to debate the advisability of adopting the Amendment. 6 Pending a formal ratification or rejection of PEC 171, this Note addresses the potential implications of adopting such legislation. Specifically, the similarity of the proposed Amendment to the current statutory guidelines permitting the transfer of juveniles to adult court in Virginia, allows for the application of a comparative criminal justice analysis.7

This Note contends that, based on decades of research citing the negative impact of juvenile transfer in Virginia, 8 Brazil should reject PEC 171 and instead strengthen its existing system of juvenile justice. Part I provides an overview of the social and legal context of juvenile justice in both Brazil and the United States. Part II addresses juvenile transfer in Virginia and its attendant consequences. Part III argues for the use of a comparative justice framework when examining the impact of transfer laws in Brazil. Finally, Part IV analyzes the potential consequences of reducing the age of criminal responsibility in Brazil and provides germane policy suggestions. Based on evidence from decades of research on the impact of transfer in Virginia, this Note concludes that the ratification of PEC 171 in Brazil will result in far-reaching, and likely unanticipated, negative consequences for both the Brazilian population at large and the Brazilian youth subjected to adult prosecution.

I. BACKGROUND

A. Constitution of Brazil

Largely due to the evolving nature of the Brazilian government, as well as several coups which resulted in brief periods of authoritarian leadership, Brazil operates under its seventh Constitution. 9 The Constitution is “federative” in that it grants “greater legislative (and unifying) authority to the central government with state legislation following national direction.” 10 The Brazilian Constitution is “the supreme law of the land . . . [and] binds all public actors, all state departments and all powers.” 11 As contrasted with the United States Constitution, the Brazilian Constitution is expansive and enumerates a wide array of social and political rights, including the rights of children.12

Though only in force since 1988, Brazil’s current Constitution already includes ninety–five amendments.13 The amendment process in Brazil first requires a proposal by either “the President; at least one third of the members of the house of representatives; at least one third of the members of the Senate; or a petition of more than half of the Brazilian states [sic] legislature.” 14 Following the proposal, “a two-fold reading in both houses as well as the approval of at least three-fifths of both houses” is required.15

---

† J.D. 2017, Regent University School of Law; M.A. 2011, Old Dominion University. Special thanks to Professor Lynne Marie Kohm for her guidance, advice, and calming presence.
1 Sam Aman, Selective Adulthood: Brazil Moves to Lower Age of Criminal Responsibility, COUNCIL ON H EMISPHERIC AFF. (May 29, 2015), http://www.coha.org/selective-adulthood-brazil-moves-to-lower-age-of-criminalresponsibility/. The original proposal by Congressman Domingos also suggests that modern juveniles are more mentally developed than the youth of previous decades and are therefore capable of understanding the consequences of their actions. Id.; see also Ministério Público, PEC 171/1993, http://www.mprs.mp.br/infancia/legislacao/id2658.htm (translation on file with J. Global Just. & Pub. Pol’y) (last visited Mar. 6, 2017).
2 Aman, supra note 1.
3 Id. It has been noted that PEC 171 likely did not “pass the necessary congressional hurdles” when first introduced because the political composition of congress at the time was less conservative. Id.
4 Id. For instance, in 2014 fourteen-year-old Yorrally Dias Ferreira was murdered by her ex-boyfriend two days before he turned eighteen. This case made headlines due to the gruesome nature of the crime; “Ferreira’s killer filmed her bleeding body and spread the footage on the Internet, shocking the country and igniting social media networks.” Id.
5 Id.; see also Associated Press, Brazil’s Congress Reduces Age of Criminal Responsibility to 16, GUARDIAN (July 2, 2015), http://www.theguardian.com/world/2015/jul/02/brazil-age-of-criminal-responsibility-16 [hereinafter Brazil’s Congress Reduces Age of Criminal Responsibility to 16].
6 See Aman, supra 1; see also Brazil’s Congress Reduces Age of Criminal Responsibility to 16, supra note 5.
7 See discussion infra Part III.
8 See discussion infra Part II.
9 Jesse Burgess, Comment, Let them Eat Cake: Constitutional Rights to Food, 18 WILLAMETTE J. INT’L L. & DISPUTE RES. 256, 268 (2010); see also Brazil – Legal History, FOREIGN LAW GUIDE [hereinafter Legal History], http://0-referenceworks.brillonline.com.library.regent.edu/entries/foreign-law-guide/brazil-legal-history-COM_037301 (last updated Oct. 19, 2015).
10 Legal History, supra note 9.
11 Nick Oberheiden, Law of Brazil, OBERHEIDEN L. GROUP,
http://www.lawofbrazil.com/ (last visited Dec. 30, 2015).
12 See generally CONSTITUIÇÃO FEDERAL [C.F.] [CONSTITUTION], translated in Brazil’s Constitution of 1988 with Amendments through 2014, CONSTITUTE (Keith S. Rosenn, trans.), https://www.constituteproject.org/constitution/Brazil_2014.pdf (last visited Mar. 6, 2017) [hereinafter Brazil’s Constitution of 1988].
13 See Emendas Constitucionais [Constitutional Amendments], P RESIDÊCIA DA REPÚBLICA , http://www.planalto.gov.br/ccivil_03/Constituicao/Emendas/Emc/quadro_emc.htm (last visited Mar. 6, 2017).
14 Oberheiden, supra note 11.
15 Id.