Thursday, August 14, 2008

Is NAFTA Really Law Now, Or is it Unconstitutional?

Is NAFTA Really Law Now,

Or is it Unconstitutional?

by Jack D. Forbes

President Bill Clinton is claiming victory in his efforts to have the North American Free Trade Agreement passed by the U.S. Congress. But in reality he has lost. How?

The U.S. Constitution absolutely requires that any treaty obtain a 2/3 affirmative vote in the U.S. Senate. That means that NAFTA had to get 67 votes. But NAFTA got only 61! So NAFTA is not law in spite of President Clinton's signature!

The Constitution of the United States establishes a "federal" system of government. This means that most powers are distributed between the central (federal) government in Washington, D.C. and the various state and tribal governments elsewhere. Under the Constitution, for example, control over education, health, environmental safety and many other issues has traditionally been reserved to the states. Tribes have equal powers with the states since the "Interstate Commerce Clause" (Section Eight) gives the federal government only the right "to regulate commerce with foreign nations, and among the several states and with Indian tribes...."

An "agreement" or contract between sovereign states is always a treaty, according to the dictonary. International agreements which require the approval of Congress are "treaties," no doubt of that! NAFTA has been treated illegally as an ordinary act of legislation in order to ram it through, in my judgement. (See Article II, Section 2 of the Constitution.)

NAFTA would allow Canada and Mexico and their business interests, as well as U.S. corporations, to challenge any U.S. laws, codes or regulations adopted by any state, tribe or local government if it is believed that such laws or regulations interfere with investing or with the sale of services or products by any Canadian or Mexican firms, or subsidiaries of U.S. firms.

Thus, if a tribe has a "buy Indian" rule, that rule will be challengeable by any non-Indian entity. Similarly, any and all safety and environmental regulations will be challengeable.

Who will make the final decisions in these challenges? Not our own tribal courts or our state courts. A Free Trade Commission and various committees appointed by the three central governments (and very probably representing corporate interests) will make the decisions. Thus people never elected to any office will have the final say.

Thus NAFTA is actually an amendment to the U.S. Constitution (as well as a treaty). It will change our system of government by eliminating much of what is left of "states' rights" and by blocking tribal governments in their march towards sovereignty. The "federal system" will be at an end.

NAFTA represents a trend typified by the growth of the General Agreement on Trades and Tariffs (GATT) superstructure as well as by numerous unelected regional commissions and authorities (like the Los Angeles Metropolitan Transit Authority or the New York Power Authority or the Los Angeles Metropolitan Water District). These new "governments" are run by appointed persons and bureaucrats (technocrats) who make vital decisions but who are not democratically chosen.

Bill Clinton took an oath to uphold the U.S. Constitution, as do U.S. senators, and all are bound by its provisions. Of course, Clinton's people claim that NAFTA is simply an "agreement" and not a treaty, but that is just semantic trickery. A formal agreement between sovereign states (nations) is a treaty. That's what the word treaty means. You can call such an agreement a "declaration," a "convention," or whatever you want, but if it is a formal agreement between sovereigns it is always a treaty and the U.S. Constitution requires a 2/3 vote for ratification. Sixty-eight votes, not 61!

The genocide treaty was called the "Genocide Convention," but it required a 2/3 vote in the Senate to pass.

We know that ex-President George Bush and his negotiators designed NAFTA to be a treaty because NAFTA purports to be able to nullify the laws of the United States, of the fifty states, and of local governments if they conflict with the provisions of NAFTA. This means that NAFTA becomes a part of U.S. law, part of the "supreme law of the land."

But according to the U.S. Constitution, only a treaty ratified by a yes vote of 2/3 of the U.S. Senate can become part of U.S. law. A so-called non-treaty "agreement," whatever that might be, can have no legal force within the United States.

The House and Senate, by simple majority vote, cannot pass a law which nullifies state and local laws and ordinances, except in certain subject areas where the Constitution grants the federal government supremacy (as in foreign affairs, defense, and the like). Thus NAFTA as a simple law of the Senate and House cannot achieve its objectives. Only as a treaty ratified by 2/3 of the senators with a yes vote can NAFTA achieve its objectives of nullifying our federal system of government.

The newspapers tell us that NAFTA has won. Their reporters apparently don't read the Constitution. What can we do?

Obviously some organization, state government, city, tribe or a combination of the above must go into court to have NAFTA declared inoperative, to obtain a writ against its being implemented in 1994. Organized labor should take the lead, but state, provincial, local and tribal governments should be equally concerned about the threatened loss of the powers of self-government posed by NAFTA.

Tribes and some territories should also note that NAFTA does not appear to refer to their legal existence. Native governments as well as the territories of Guam, Samoa and the Virgin Islands are not included in NAFTA except under the umbrella term of "local" governments or as simply part of the "customs territory" of the U.S. Of course, tribal and territorial governments are not "local."

Thus it is very important that tribal and territorial governments and the Associated Free State of Puerto Rico seek to have the courts declare NAFTA to be inoperative within their territories without the specific consent of their governing bodies.

If this is not done, tribes take the risk of allowing themselves to be categorized simply as "local" governments, and of having their sovereign powers drastically diminished. (States, provinces and territories also face the same loss of self-government, of course.)

In addition, tribal and band governments should pass resolutions declaring that NAFTA shall be without effect within their territories and on any lands to which they possess a claim (e.g., the Black Hills).

One objective might well be to force the U.S., Canadian and Mexican governments to agree to a renegotiation of NAFTA in which all international agreements relating to the rights of indigenous peoples, women, children, ethnic minorities and labor can be incorporated into the treaty. Moreover, one might wish to demand that any new NAFTA be accompanied by a North American Parliament with elected delegates, including representation for tribes and indigenous communities.

After all, NAFTA is supposed to be patterned after the European Economic Community, but the EEC also has the European Parliament. NAFTA is now to be run by people who are not elected but simply appointed. That is a big difference to think about!

But of course, election means nothing either unless indigenous governments, women and ethnic minorities are guaranteed representation. In any case, maybe people should think about these options and not give up.*

[Professor Jack D. Forbes, Powhatan-Delaware, is the author of Columbus and Other Cannibals, Africans and Native Americans and other books.]

All Rights Reserved by Jack D. Forbes

*adapted from a column, Native Intelligence, written by Professor Forbes