TO: Tom Lantos Human Rights Commission - House Committee on Foreign Affairs

It was with great interest and appreciation that we were able to watch the virtual hearing on Human Rights of Indigenous Peoples in the Americas conducted by the Tom Lantos Human Rights Commission (TLHRC) on November 20, 2020. The commission is to be commended for addressing the overarching theme of Human Rights of Indigenous Peoples in a continental context, which is not only appropriate but necessary in order to achieve a comprehensive historical understanding and analysis of the systemic nature of human rights violations against Indigenous Peoples which persist in the continent.

It is our understanding that the TLHRC addressed the issue of human rights of Indigenous Peoples in Latin America some ten years ago. During the virtual hearing on the 2oth of November, the substance of the testimonies during the virtual hearing echoed a common denominator of dispossession, discrimination, dehumanization, colonization and genocide that has been normalized in the Americas since October 12, 1492. That the “Latin American” chapter in this history has been reviewed by the TLHC is significant in the defense of internationally recognized human rights norms, but the issues of human rights violations against Indigenous Peoples in the Americas is not limited to the Roman Civil Law successor states of Latin America. The Anglo-American successor states on the continent, whose origin derives from the English Common Law of Christendom, must also come under review in the context of internationally recognized human rights principles and norms as enshrined in the Universal Declaration of Human Rights, and other relevant human rights instruments such as the UN Declaration on the Rights of Indigenous Peoples (2007).

A comprehensive historical understanding and analysis of the systematic human rights violations against Indigenous Peoples in the Americas [North-Central-South] must necessarily integrate a critical position in regard to the nefarious and racist Doctrine of Discovery of Christendom (October 12, 1492) which continues to be normalized by the successor states across the continent.

A comprehensive historical understanding and analysis of the systematic human rights violations against Indigenous Peoples in the Americas [North-Central-South] must necessarily integrate a critical position in terms of the international trade policies of the “Corporate Metropolitan States” in competition and systemic collusion over the extraction of natural resources and labor of the Original Nations of Indigenous Peoples of the Great Turtle Island Abya Yala. As both example and evidence, the “Privileges and Prerogatives Granted by Their Catholic Majesties to Christopher Columbus (1492)” outline the rewards and protections of the initial colonial enterprise of seeking World Trade Organization routes to the Indies on behalf of the European Royalty. These packages of privilege and profit are institutionalized today via the multilateral international trade agreements such as the recently adopted US-Mexico-Canada Agreement USMCA (2020).

On this point, we would concur with the statement by TLHRC co-chair James P. McGovern (D-MA) made during the virtual hearing on November 20:

“We should be examining the impacts of our trade agreements on Indigenous Rights.”

We support the call by the Continental Commission Abya Yala to the Tom Lantos Human Rights Commission calling for a full public hearing on the implications of the blatant systemic violation of Human Rights in the international USMCA trade zone, and specifically to address the violation of the inherent Human Rights of Indigenous Peoples, equal to all other peoples, cited in USMCA as follows:

CHAPTER 32 EXCEPTIONS AND GENERAL PROVISIONS

Section A – Exceptions

Article 32.5: Indigenous Peoples Rights

1.) The designation of Indigenous Peoples in the USMCA is definitive, in terms of the recognition of Indigenous Peoples as “peoples”. In the context of the 2007 UN Declaration on the Rights of Indigenous Peoples, which was not yet in place in 1994 during the original NAFTA agreement, the recognition of Indigenous Peoples in an international commercial agreement necessarily is accompanied and contextualized by the recognition of the Rights of Indigenous Peoples as articulated and affirmed in the principles and articles of the UN Declaration on the Rights of Indigenous Peoples.

2) The principle of non-discrimination is a preemptive norm in international law. Therefore, the recognition of Indigenous Peoples as “peoples’ in USMCA Article 32.5 Indigenous Peoples Rights must be taken as an affirmation and commitment to uphold, recognize, respect, and institute guarantees of protection for the collective rights of Indigenous Peoples, equal to all other peoples, without illegal or arbitrary discrimination, including effective consequences in the form of legal remedies to address the violation of these rights. Colonization must not be disguised as development.

3) The official text in Spanish (or any indigenous language) of the USMCA agreement was never published in Mexico or anywhere else until the date of December 5, 2018 when TONATIERRA requested an official copy at the offices of the Mexican consulate in Phoenix, Arizona. Without having the text of the USMCA agreement in advance, there is no legitimate or rational narrative that can explain how the Indigenous Peoples of Mexico have been consulted at least with respect to the protection of their particular and collective rights under the USMCA, much less taken into account with the opportunity to approve or DENY CONSENT.

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Free Prior and Informed Consent

(FPIC)

All Peoples have the right to self-determination. It is a fundamental principle in international law, embodied in the Charter of the United Nations and the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.

The standard, Free, Prior and Informed Consent (FPIC), as well as Indigenous Peoples’ rights to lands, territories and natural resources are embedded within the universal right to self- determination. The normative framework for FPIC consists of a series of international legal instruments including the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), the International Labour Organization Convention 169 (ILO 169), and the Convention on Biological Diversity (CBD), among many others.

FPIC is a specific right that pertains to Indigenous Peoples and is recognized in the UNDRIP. It allows them to give or withhold consent to a project that may affect them or their territories. Once they have given their consent, they can withdraw it at any stage. Furthermore, FPIC enables them to negotiate the conditions under which the project will be designed, implemented, monitored and evaluated.

Consultation is not consent.