Many constitutions of the world contain special provisions for indigenous communities, granting them particular rights and regulating their traditional political institutions and customary law. Building on rational theories of constitution-making, we employ a demand and supply framework to explain the constitutionalization of such provisions. To test our hypotheses, we code the presence of indigenous provisions in the current constitutions of 193 United Nations member states. We find full democracy and previous conflict to stimulate the inclusion of indigenous group rights but not of customary law and traditional institutions. Customary law and traditional institutions are more likely constitutionalized in countries with high ethnic fractionalization. Low levels of modernity affect particularly the constitutionalization of traditional political institutions, while low levels of development correlate with provisions on customary law. Former British colonies are more likely to constitutionalize customary law.

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The Policy Research Working Paper Series disseminates the findings of work in progress to encourage the exchange of ideas about development issues. An objective of the series is to get the findings out quickly, even if the presentations are less than fully polished. The papers carry the names of the authors and should be cited accordingly. The findings, interpretations, and conclusions expressed in this paper are entirely those of the authors. They do not necessarily represent the views of the International Bank for Reconstruction and Development/World Bank and its affiliated organizations, or those of the Executive Directors of the World Bank or the governments they represent.