A colonização do futuro ancestral: a tese jurídica do Marco Temporal indígena à luz da abordagem decolonial dos direitos humanos

Abstract

In September 2023, the Federal Supreme Court dismissed Extraordinary Appeal No. 1017365, which dealt with the application of the Temporal Milestone thesis on indigenous occupation rights. The Temporal Milestone proposes the identification only of the possessory rights of indigenous peoples who, on the date of promulgation of the Federal Constitution, were physically occupying the determined territory. Considering the unconstitutionality of the Temporal Milestone to the detriment of the interpretation of art. 231 of the Federal Constitution, involves the adoption by STF ministers of two opposing theories on indigenous rights. The first, called the Theory of Indigenato, predicts that indigenous rights are original and congenital because indigenous people were already in possession of the lands before the Portuguese invasion. In contrast, the Indigenous Fact Theory reflects the legal thesis of the Temporal Milestone by arguing that possessory rights would only be recognized if indigenous people were occupying the lands on October 5, 1988. Given the complexity of the Temporal Milestone and the constitutional duty to protect original rights in Brazil, this article analyzes the votes of ministers André Mendonça and Cristiano Zanin in the judgment of Extraordinary Appeal nº 1017365, through the adoption of the theoretical framework of Decoloniality. The choice of a decolonial bias to analyze the votes and the indigenous situation in the country comes from the desire to highlight how the colonial pact established by Portugal produced marks that disappear beyond the end of the colonial period in Brazil, seeking to understand how characterizations, ideas and Contemporary discourses continue to legitimize Eurocentric ideals in the construction and subordination of the “other”. Thus, the article develops a decolonial analysis of the hegemonic discourse of human rights as corresponding to a construction that reflects Western ideals and experiences, but which was transplanted and instituted in former colonies on a violent basis. Violence and domination of indigenous peoples through the control of imagination, knowledge and knowledge allowed indigenous peoples to continue to be characterized by inferiority. In a second moment, the work focuses on the antagonistic votes of ministers Mendonça and Zanin, carrying out an analysis that takes as its starting point the coloniality and colonialism of the arguments used. The proposal is to expand the analysis beyond the contemporary scenario of indigenous peoples in the face of the consequences of the Temporal Milestone, proposing to observe the colonial past as a way of avoiding the colonization of the future of original ancestry. The results obtained demonstrate an affinity between the Temporal Milestone and the perpetuation of arguments that reinforce colonial concepts related to race, power and the subjugation of indigenous peoples. The Temporal Milestone not only reflects the Eurocentric vision of Brazilian history, but also expands colonial control over the future of indigenous peoples on their lands, where they keep their culture and ancestral memory of resistance alive. The methodology used is discourse analysis, considering the social and temporal context of the votes. The study uses bibliographic and jurisprudential analyzes to address the issue of indigenous ownership in Brazil.