The first North American trade agreement was the Treaty of Amity and Commerce, negotiated by John Jay and Alexander Hamilton — and known widely as the “Jay Treaty. Article III affirmed the right of Indians to conduct nation to nation trade without regard for the border. The Treaty of Ghent, which ended the War of 1812, also included language affirming the rights of Tribes to transport and to conduct commerce.
But recent North American trade agreements like NAFTA and, now, the USMCA have completely excluded any language that would recognize or affirm those inherent rights.
United States Senate Minority Leader Charles Schumer is preparing to delay the ratification of that trade agreement until new language is added that would affirm the existing Treaty rights of North America’s indigenous people, thereby protecting their inherent right to conduct trade among themselves.
Schumer — eager to appease the progressive flank of his party — will be insisting that protections for the political and economic self-determination of indigenous people will be included in all new trade agreements. But to meaningfully engage with Indian Tribes could take two or more years of consultations — and President Donald Trump is eager to achieve ratification in the Senate well ahead of his campaign for reelection.
Justin Trudeau, under Canadian administrative law, has a duty to consult indigenous people before taking government actions that have adverse impacts. The argument can be properly made that he had that obligation here. The only remedy (under Canadian law) is getting a court to order that the offending party begin consulting with aboriginal groups going forward.
If a Court orders that indigenous people be consulted during future USMCA negotiations, that would be significant movement towards indigenous people being included in future iterations of North American trade treaties. The USMCA requires ‘review’ every six years.
Schumer hopes to retake control of the United States Senate in 2020. The election map will require that the party fields moderate candidates in centrist States where Tribal governments have cultivated significant influence during recent decades of economic growth — and where Republican incumbents have weak relationships with Native American communities.
In recent weeks, Schumer has been reaching out to identify Native American candidates for Senate in Arizona, Oklahoma, and South Dakota.
Jackie Johnson-Pata, the Executive Director of the National Congress of American Indians, is being prodded to challenge freshman Republican Dan Sullivan in Alaska. She has led the largest, most representative indigenous rights group in the United States for the last two decades. It’s thought that — should Schumer take control of the chamber — Johnson-Pata would be invited by party leaders to serve as Chairwoman of the Indian Affairs Committee — a potentially catalytic development for hundreds of Alaska Native Corporations.
Sharice Davids, the Cornell University-educated attorney who was one of two Native women to be elected to Congress last year, is being encouraged to consider a run against the 82-year-old incumbent, Pat Roberts, of Kansas.