The colonization of the ancestral future:

the legal thesis of the indigenous temporal frame in light of the decolonial approach to human rights

Abstract

In September 2023, the Brazilian Supreme Court (STF) ruled against Extraordinary Appeal No. 1017365, which addressed the application of the Time Frame thesis, according to which Indigenous land rights would only be recognized if there was physical occupation of the territory on October 5, 1988. This article analyzes the votes of Justices André Mendonça and Cristiano Zanin through the lens of Decoloniality, highlighting how colonial discourses persist in legal constructions. The Indigenato Theory, which acknowledges Indigenous rights as original, contrasts with the Indigenous Fact Theory, which supports the Time Frame thesis. The research reveals that the ruling reflects Eurocentric ideals, perpetuating colonial structures of domination and subjugation of Indigenous peoples. The analysis discusses the Time Frame thesis’s impact on Indigenous ancestry and territoriality, employing discourse analysis methodology and a review of bibliographic and jurisprudential sources to understand the continuity of coloniality in Brazilian law.