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

Beto Ricardo/ISA
Indigenous groups have the right
to commercialize, with complete autonomy,
carbon credits derived from projects
undertaken in their territories.
been formally revoked, stipulates that the federal indigenous organization (the Brazilian National
Indian Foundation, created by Federal Law nº 5371/67) is responsible for managing indigenous
patrimony unless it can be proven that the “tribal group” that owns the patrimony has the
“effective capacity” to manage the land on their own (Indian Statute, Art. 42, head).
Although there is no Federal Supreme Court decision on the constitutionality of this norm,
it is practically unanimous in the national doctrine that this rule goes against the Constitution of
1988. Guardianship as stated in the existing legislation still presupposes the relative incapacity
of the indigenous and purports passing their patrimony on to the State. On the other hand, the
Brazilian Federal Constitution of 1988 explicitly recognizes the indigenous peoples’ forms of
social organization, without judging – as was the case in the prior constitutional regime – these
forms of social organization to be inferior. The old tutelary regime, which permitted the State’s
intervention into every act of the indigenous people’s civil life, was tacitly revoked by the new
constitutional regime, which appointed the State to protect indigenous belongings and with the
idea of public guardianship still in effect. Many authors reached the same conclusion, among
them Villares, who writes:
“Under the auspices of the old Civil Code (...) in general, the Indians were considered
to be relatively incapable (...). This situation persisted until the Federal Constitution
of 1988, and its Art. 232 purposely recognized Indians, their communities, and
organizations as having procedural capacity, or in other words, the possibility to
be a legitimate party able to enter into court to defend their rights and interests
(...). According to the illustrious jurist Humberto Teodoro Júnior, ‘as a general rule,
the capacity that the party must possess in order to go to trial is the same capacity
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 97