With the vote on the USMCA now pending in the US Congress, there has been no substantive debate on the Human Rights of Indigenous Peoples to be impacted by the modification of the NAFTA multilateral trade agreement (1994). This is not acceptable, and in fact is a violation of the right of Indigenous Peoples to Free, Prior and Informed Consent in good faith as is articulated in the UN Declaration on the Rights of Indigenous Peoples (2007).

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) Consultation is not the same as consent. The UN Declaration on the Rights of Indigenous Peoples affirms the right of Free, Prior and Informed Consent in culturally appropriate manner for all economic development projects that impact the territories and human rights of Indigenous Peoples.

4) 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 our organization 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 in the USMCA, much less taken into account with the opportunity to approve or DENY CONSENT.

In our letter to the USMCA Working Group of the US House of Representatives on September 13^th of this year, we informed the Working Group members and House Speaker Pelosi that upon review of the public record of debate concerning the Human Rights of Indigenous Peoples in the context of the proposed US-Mexico-Canada Agreement (USMCA), the systemic disregard for the human rights of Indigenous Peoples is blatantly discriminatory, unacceptable and must be addressed before the agreement is put to vote before the House of Representatives.

Specifically, we called for a full public hearing before the appropriate committees and/or Working Group formations of the US Congress for the purpose of informing the US congressional representatives on the right of Indigenous Peoples to Free, Prior, and Informed Consent (FPIC) as stipulated in the UN Declaration on the Rights of Indigenous Peoples regarding projects which impact their collective rights.

The purpose of this communiqué is to urge the Tom Lantos Human Rights Commission to conduct a full public hearing on this issue before the vote of approval on the USMCA in the US Congress.