The UN General Assembly adopted the Declaration on the Rights of Indigenous Peoples on September 13, 2007, with 144 states voting in favor of the resolution and eleven abstentions. Australia, Canada, New Zealand, and the United States were the only votes against the Declaration.

In the last year, however, Australia has explicitly endorsed the Declaration, and both the Canadian and New Zealand governments have made signals that they were backing away from their votes against the non-binding Declaration. The United States is alone in retaining its strong opposition.

The Declaration’s goal is to provide protections for the human rights of an estimated 370 million native people worldwide, along with their lands and resources. To that end, the Declaration enumerates both individual and collective rights, such as the right to political self-determination, the right to education, and the right to maintain cultural institutions.

The United States, however, is critical of what it perceives as the document’s shortcomings. According to Robert Hagen, U.S. Advisor at the United Nations, the Declaration is “confusing, and risks endless conflicting interpretations and debate about its application.” The United States rejects the notion that the rights included in the Declaration are or can become customary international law and is also extremely wary of the Declaration’s definition of self-determination. The United States prefers a more clearly aspirational document indicating a right to self-governance within the nation-state rather than a right to self-determination, which under international law may be exercised under certain limited circumstances through secession. Finally, it claims that the language of the Declaration is confusing and easily conflated with legal obligations set forth in the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.

Now, as the UN is reviewing the human rights situation in the United States as part of its Universal Periodic Review (UPR) process, the U.S. stance is drawing increased attention and criticism. At a March 16, 2010 “listening session” held at the University of New Mexico Law School, the U.S. State Department heard criticisms and complaints from native leaders, legal scholars, and human rights activists, urging the United States to adopt the Declaration.

Some Native American activists are also taking their case directly to the UN through a submission to the UPR process. The American Indian Rights and Resources Organization (AIRRO) will be collecting testimony throughout the month of April 2010 on the issue of disenrollment, the process by which Native American tribal governments remove people from tribal membership. The process is controversial and increasingly important with the growth of the gambling industry and related issues of control over large proceeds. After unsuccessfully appealing to the U.S. 9th Circuit Court of Appeals, AIRRO hopes that information submitted to the UN Human Rights Commission will help resolve the issue and bring pressure on the United States.

International criticism of the United States on indigenous rights issues is not unprecedented. In 2008, the UN Committee on the Elimination of Racial Discrimination formally criticized the United States for failing to adequately prevent and punish violence against Native American women. According to statistics from the U.S. Justice Department, one third of Native American women will be raped in their lifetimes, and non-Native American men will commit 86 percent of those rapes. This criticism also comes not long after the Inter-American Commission on Human Rights became the first international body to formally recognize that the United States had violated the rights of Native Americans in a case concerning the Western Shoshone tribe. The Commission found that the United States illegitimately gained control of ancestral Shoshone lands and may have mismanaged millions of acres of land under the Indian Claims Commission.

The Declaration on the Rights of Indigenous Peoples, while not adopted by the United States, still provides the UN and the international community with strong standing to criticize the United States — as does the United States’ failure to adopt the Declaration itself. As the United States’ UPR nears, attention paid to the treatment of Native Americans is certain to increase.