How does the law protect indigenous minorities?

Variety in nativeness captures our attention. The intricate tapestry of indigenous communities, marked by diverse cultural, linguistic, and historical backgrounds, are integral to the social fabric of nations worldwide. Understanding the context requires recognizing the unique challenges these groups face, stemming from a history of colonisation, discrimination, and marginalisation. The legal framework surrounding indigenous rights becomes pivotal in addressing these issues and fostering a more inclusive and equitable society. 

How is the definition and recognition of indigenous peoples' rights addressed in international law? What national legal frameworks safeguard the rights and interests of indigenous minorities? How do these laws address land rights, cultural preservation, and self-determination for indigenous communities? What mechanisms ensure the enforcement of legal protections for indigenous peoples? How do legal frameworks adapt to evolving challenges faced by indigenous minorities, and how effective are these adaptations?

Indigenous Communities of Nepal 

Indigenous communities in Nepal face pressing challenges despite the country's diverse ethnic landscape, comprising 142 castes and ethnic groups. The categorization includes endangered, highly marginalised, marginalised, disadvantaged, and advantaged groups, with some not officially recognized. The estimated populations of major indigenous peoples highlight their substantial presence. However, systemic discrimination persists, as the 2015 Constitution grants supremacy to Khas Arya, sidelining the collective rights of Indigenous Peoples. Despite Nepal's ratification of international conventions, including ILO Convention No. 169 (Indigenous and Tribal Peoples Convention) and the UN Declaration on the Rights of Indigenous Peoples, implementation falls short. Commissions for Indigenous Peoples lack significant power, and challenges persist in awareness, access to information, and participation in global programs. Moreover, conservation policies adopted since the 1970s have disproportionately affected indigenous peoples, limiting access to ancestral lands and resources. The struggle for the recognition of rights and protection continues, demanding urgent attention and legal reform.

Legal Framework in Nepal

There are a few mechanisms in place that include the inclusive measures and economic empowerment strategies like positive discrimination, reservation. Economic privileges in policies, etc that cater to uplifting the way of living of the minority indigenous communities.

  • Constitution of Nepal: Article 18 guarantees the right to equality, allowing special provisions for the protection, empowerment, and development of citizens, including indigenous people and nationalities. Article 42 emphasizes the right to social justice, ensuring the participation of indigenous people and nationalities in State bodies through inclusive principles.

  • Representation in Electoral Systems: Article 84 and Article 176 of the Constitution stipulate that political parties must ensure representation of indigenous peoples in the House of Representatives and State Assembly, respectively, based on closed lists in proportional electoral systems.

  • Indigenous Nationalities Commission: Article 261 establishes the Indigenous Nationalities Commission, tasked with protecting and promoting the rights, culture, and identity of indigenous nationalities.

  • Nepal Army Inclusion: Article 267 ensures entry into the Nepal Army for women, Dalit, and indigenous people based on principles of equality and inclusion.

  • Land Acquisition Policy: The Policy on Land Acquisition, Resettlement, and Rehabilitation for Infrastructure Development 2015 identifies vulnerable communities, including indigenous nationalities, and calls for additional support and programs for their inclusion.

  • Local Government Operation Act, 2017: This Act commits municipalities to promote, preserve, and protect the language, religion, culture, and welfare of indigenous people within their jurisdiction.

  • National Foundation for Upliftment/Development of Indigenous Nationalities (NFDIN) Act: The NFDIN Act, established in 2002, provides a comprehensive policy and institutional framework for the upliftment and development of indigenous nationalities.

  • National Indigenous Nationalities Commission Act, 2074 (2017): 

    • Enacted for the identification, protection, and promotion of the glorious history and culture of Indigenous nationalities.

    • Aims to empower Indigenous communities.

    • Functions include detailed studies to identify Indigenous nationalities and making recommendations for policy, legal, and institutional reforms.

  • International Conventions and Treaties:

    • Signatory to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and party to International Labor Organization (ILO) Convention (169) of 1989.

    • ILO Convention 169 is a comprehensive treaty addressing cultural integrity, land and resource rights, and non-discrimination.

    • UNDRIP emphasises individual and collective rights, including cultural, identity, language, and consultation in development activities.

  • Indigenous Peoples in the Periodic Plan:

    • The 15th periodic plan (2019/20-2023/24) includes plans and programs for Indigenous Peoples.

    • Special, Protected, and Autonomous areas organised according to the constitution.

    • Commits to surveys, documentation of biodiversity, and protection programs for marginalised and endangered Indigenous Peoples.

  • Indigenous People and Protected Areas:

    • Amnesty International and Community Self-Reliance Centre report documents human rights violations faced by Indigenous people in Nepal's protected areas.

    • Forced evictions from ancestral lands and denial of access to subsistence areas.

    • Recommendations include consultations for remedy, return to ancestral lands or fair compensation, alternative housing, and amendments to conservation laws with Indigenous participation.

Despite these legal provisions, challenges persist, as highlighted by the International Work Group for Indigenous Affairs (IWGIA), revealing issues such as Khas Arya dominance in parliamentary elections and inadequate representation of Indigenous Peoples in political parties. Ongoing discrimination and marginalisation underscore the need for more effective implementation of these laws to address the collective rights and aspirations of indigenous communities.

Case Law

After a seven-year legal battle, the Newar Indigenous Peoples in Kathmandu secured a significant victory on June 30, 2018, when the Supreme Court of Nepal issued a judgement directing the government to compensate affected landowners and conduct road widening only with the consent of the local people that had been impacted. The court emphasised that the road expansion violated the principle of self-determined development for Indigenous Peoples. Subsequently, on December 31, 2018, the Supreme Court issued a Directive Order, mandating the establishment of the Baram Special, Protected, or Autonomous region, recognizing the unique cultural and social structure of the Baram Indigenous Peoples. This landmark decision has inspired other Indigenous groups, including Majhis, Newa, Magar, Kiratis, and Santhals, to raise similar issues regarding Protected, Special, and Autonomous Areas. Additionally, writ petitions have been filed at the Supreme Court, such as the one against forced eviction by Amrita Shakya and others, aiming to protect cultural rights and resist development aggression on the ancestral lands of the Newa Indigenous Peoples. Another writ petition by LAHUNRIP addresses Indigenous Peoples' meaningful participation in decision-making, including law-making processes.


While Nepal has implemented legal frameworks and international conventions to protect the rights of indigenous communities, significant challenges persist. The 2015 Constitution, despite its inclusive measures, grants supremacy to Khas Arya, resulting in systemic discrimination. The Indigenous Nationalities Commission, though established, faces limitations in power. Positive discrimination measures and economic empowerment strategies are in place, such as reservations and economic privileges, but effective implementation remains a concern. Despite constitutional provisions for representation in electoral systems and various acts addressing indigenous rights, issues like forced evictions and inadequate political representation persist. The Newar Indigenous Peoples' landmark legal victory in 2018 highlights progress, yet ongoing discrimination underscores the necessity for more robust implementation of laws to safeguard the collective rights and aspirations of indigenous communities in Nepal.