Identifying National and International Vacuums Potentially Impacting NAFTA and Indigenous Peoples

The North American Free Trade Agreement (NAFTA) was made among three nation-states, Canada, the United States, and Mexico. Each of these nation-states has indigenous populations within its borders. Each has chosen different legal mechanisms for interacting with indigenous peoples. For example, the United States has an extensive web of treaties with the tribes within its borders while Canada, in contrast, has relatively few. All three nation-states have grappled with armed conflicts with indigenous peoples well into the 20th century. Indigenous peoples within each have long social, cultural, economic, and political histories which cross the borders of these countries. Within the provisions of NAFTA, each nation-state reserved the right to deny investors rights or preferences provided to "aboriginal peoples", "socially or economically disadvantaged minorities", or "socially or economically disadvantaged groups" in from two to five designated areas. All three approaches nevertheless leave substantial national and international legal vacuums that necessarily impact the implementation of NAFTA as well as the economic interests of indigenous peoples. This paper identifies some of those vacuums, considers their potential impacts and their relationship to negotiations on a Free Trade of the Americas (FTAA) agreement, and discusses possible remedies.