Avoided Deforestation (REDD) and Indigenous ... - Amazon Fund

State or to third parties. Since carbon credits are negotiable goods with economic value and
derived from the existence of forests on indigenous lands in addition to the exclusive power
the indigenous peoples have to enjoy them, these credits are civil accessories to a principal. As
inferred from Art. 92 of the Brazilian Civil Code, carbon credits can be considered accessories
derived from the forest (or from reforestation) found on indigenous land. The forest, on the
other hand, is the central asset, belonging to the indigenous peoples traditionally occupying the
indigenous lands. Thereby, the carbon credits also belong to the indigenous peoples.
Here the question regarding the capacity of indigenous peoples to autonomously
conduct legal business transactions with these assets arises, a matter still unresolved within the
Brazilian legislation.
The civil capacity of indigenous peoples was not always widely recognized, and the
belief in an alleged incapacity of indigenous people still influences many relationships today. The
previous Brazilian Civil Code (Law 3071/16) treated indigenous peoples as relatively incapable
(Art. 6, III) and the Indian Statute (Law 6001/73) submitted them to a State tutelary regime under
which the national State was the legal guardian of all indigenous peoples in the country. The
Indian Statute later validated the private guardianship figure instead of public guardianship.
Professor Marés concludes that this guardianship brought dire consequences because it created
an instrument of oppression and abuse that the State used against the indigenous people.
Indigenous patrimony was often managed by a tutor who had no responsibility or commitment
to the indigenous people, but acted more in the name of other so-called public interests. 37
Additionally, inherent in the idea of guardianship is the idea that indigenous people should
be integrated into the national society and that one day they would cease to be Indians. The
Constitution of 1988 changed this situation, by recognizing indigenous peoples’ ways of social
and cultural organization, without imposing a transitional regime towards a non-indigenous way
of life. This guarantee even justifies indigenous control over their lands and natural resources.
In this multicultural spirit, the New Civil Code (Law 10406/02, Art. 4, §1), replaces the
1916 Civil Code, altering the condition of indigenous peoples as relatively incapable, but leaves
it to a special law to define this rule. The special law that effectively deals with the matter
continues to be the Indian Statute, which still retains many of the aspects of guardianship based
on alleged incapacity. For example, an old rule inserted into the Indian Statute that has not yet
37 SOUZA FILHO, Carlos Frederico Marés. O Renascer dos Povos Indígenas para o Direito (The Rebirth of Indigenous
Peoples to the Law), Curitiba:Juruá, 1999, p.104.
96 Av o i d e d d e f o re s t A t i o n (redd) A n d i n d i g e n o u s p e o p l e s: experiences, chAllenges A n d o p p o r t u n i t i e s in t h e A m A zo n c o n t e x t