The problem of culturalizing indigenous self-determination: Sámi cultural autonomy in Finland

ABSTRACT

This article examines the culturalization of Sámi self-determination in Finland. Employing a structural injustice analysis, it argues that the prevailing framework of Sámi cultural autonomy acts as a significant barrier to the effective realisation and practice of the right to Indigenous self-determination. The article traces the trajectory of constructing and limiting Sámi rights in the sphere of language and culture while failing to pass comprehensive legislation addressing land rights, central to operationalising Indigenous self-determination and exercising self-government. It considers the ways in which enacting Sámi self-government is framed in the current Finnish legislation as consultation and analyses how the government has in recent years failed to meet its own legislative duties in this regard. The article underscores the essential link between the right to self-determination, indigenous land rights, and the tangible practice of political self-government, shedding light on the difference between political and cultural autonomy.

KEYWORDS:

• Indigenous
• self-determination
• Sámi
• Finland
• rights
• injustice

Introduction

Self-determination is a central norm in international law recognising that all peoples have the right to determine and have control over their own affairs and develop their own political, social, and cultural institutions. Self-government is a political theory and arrangement that enables a group to govern themselves according to their own will and through their own institutions. Indigenous self-government commonly refers to contemporary arrangements with the state in which an Indigenous people have been delegated certain administrative, representational, or consultative authority and tasks.¹

Culturalization is a problem deeply ingrained in the ways in which mainstream society and the state policies, and legislation construct, constitute, and perceive Indigenous peoples, their societies, and rights. Culturalizing Indigenous peoples involves rendering them and their societies as merely cultures to be celebrated for diversity and their cultural heritage in the name of multiculturalism rather than recognising as distinct peoples with their own historical, political, and territorial contexts.² The narrow cultural portrayal not only oversimplifies the complex realities of Indigenous societies but disregards their peoplehood which under international law is tied to the right to self-determination. At the core of self-determination lies the authority over communities and territories. Culturalization reduces Indigenous rights to a status akin to minority groups. Essentially, culturalization deprives Indigenous peoples of their capacity to exercise their right to self-determination and constrains their political autonomy, including their ability to make decisions regarding their land, resources, and governance.

Sámi self-government in Finland is currently framed in terms of cultural autonomy, a practice common among minorities and which typically takes the form of non-territorial autonomy. Under international law, Indigenous peoples’ self-determination is, however, explicitly tied to land, representing the right of a people to govern their own affairs and pursue and develop their own political, social, and cultural institutions within a specific territory.³ The connection between Indigenous peoples and their territories is affirmed in various international human rights instruments, most specifically in the International Labour Organization (ILO) Indigenous and Tribal Peoples Convention 169.

This article examines what I call the culturalization of Sámi self-determination in Finland. I argue that the current legislative framework of ‘Sámi cultural autonomy’ is a key obstacle in implementing the right to Indigenous self-determination and exercising Sámi self-government in Finland. I employ structural injustice analysis to consider legislative and policy obstacles preventing Indigenous self-determination in Finland. This is done both by constituting the Sámi self-determination in cultural terms and thus failing to understand what the concept of ‘people’ entails, and related, by failing to consider Sámi land and resource rights in legislative processes. The article begins by discussing the problem of culturalization and the theory of structural injustice. Next, it provides historical context regarding the political developments that culminated in the establishment of the Sámi Parliament in Finland. Third, it examines how the implementation of Sámi self-government is depicted within current Finnish legislation as a form of consultation and illustrates how the Finnish government has not fulfilled its legislative responsibilities in this area in recent years.

Following a discussion on the precursor to the Sámi Parliament, I suggest that there are three central barriers obstructing Sámi self-government in Finland. These obstacles, I argue, stem from the failure to pass the proposed Sámi Act in the early 1990s and the subsequent enactment of the less contentious portion of the bill as the Sámi Parliament Act. This involved framing Sámi rights only in terms of language and culture and leaving aside the core aspect of Indigenous self-determination, land, and resource rights. In addition, I demonstrate how a number of consequent legislative or policy attempts to strengthen Sámi rights and authority over Sámi affairs have failed, thus keeping Sámi rights and self-government in Finland within the minority framework.

Culturalization as structural injustice

Structural injustice, according to political theorist Iris Marion Young, is a form of injustice deeply embedded within the societal structures and institutions that perpetuate systemic discrimination and unequal power relations. She argues that structural injustice stems from unequal distribution of resources, power, and opportunities within a society, resulting in marginalised groups being systematically disadvantaged. Structural injustices are ingrained often deeply in social, economic, and political systems, making them difficult to recognise and address. Formal political participation, however, is inadequate for true self-determination which requires non-domination. By domination Young implies ‘structural or systemic phenomena which exclude people from participating in determining their actions or the conditions of their actions’.⁴

Young further argues that the dominant understanding of self-determination as non-interference, separation, and independence is not only misleading but inadequate in interpreting the norm of self-determination. She maintains that a more accurate interpretation is based on the norm of non-domination: ‘Understanding freedom as nondomination implies shifting the idea of state sovereignty into a different context. Sovereign independence is neither a necessary nor a sufficient condition of self-determination understood as nondomination’.⁵ Non-domination forms the foundation of and vision for Indigenous self-determination. Achieving it necessitates restructuring all relationships characterised by domination, including reconfiguring relations of domination with the state, such as the structural injustice perpetuated by state laws, policies, and institutional arrangements.⁶

Political theorist Catherine Lu further contends that addressing structural injustice concerning Indigenous peoples requires contextualising current perceptions of structural injustices within a historical framework. This is essential in order to identify the aspects that raise concerns about contemporary political relations. For instance, understanding the persistent denial of Indigenous self-determination requires delving into the historical context of coercion and forceful assimilation of Indigenous peoples into nation-states. Lu argues that comprehending the specific historical dynamics between Indigenous groups, settler populations, and colonial powers is crucial for accurately diagnosing present-day structural injustices. When considering the unilateral integration into the state, achieving structural justice for Indigenous communities necessitates targeted reparative actions, such as a more equitable distribution of resources and establishing arrangements that surpass democratic equality, enabling and advancing collective self-determination. She maintains:

If the historic destruction of indigenous governance, language, and culture continues to have structural effects for contemporary agents, then redressing such structural injustice requires devoting resources to alleviating these contemporary structural effects of genocide and settler colonialism. Repairing such enduring injustices even justifies departures from liberal neutrality, since the revival of indigenous languages and cultures may be a precondition for indigenous peoples to enjoy fair opportunity for self-determination in contemporary societies.⁷

In contrast, within the cultural difference paradigm challenges are seen to stem from the cultural practices of the ‘cultural others’ rather than systemic, structural injustices upheld by the state and its institutions. Proposed solutions typically revolve around cultural diversity or sensitivity training. The foundational problem with culturalization of Indigenous rights – emphasising cultural identity and cultural difference over legal and political status of Indigenous peoples – is that it essentialises Indigenous peoples and reduces Indigenous rights to minority rights.⁸ The construction of the Sámi rights and Sámi self-government in cultural terms is a prime example of such culturalization and treating Sámi rights as minority rights in legislation and policy practice despite the constitutional recognition of the Sámi as an Indigenous people.

In international law, Indigenous and minority rights partially overlap, but there are different legal instruments for each. While Indigenous and minority rights are both aimed at preserving culture and preventing discrimination, the fundamental distinction between Indigenous and minority rights is that Indigenous peoples’ rights are premised on the rights to self-determination, land and resources due to their status as distinct peoples.⁹ International minority rights do not include these rights, but in international Indigenous rights framework, they play a central role and serve as the basis for other rights.

Legal theorist Patrick Macklem has advanced the concept of Indigenous difference. With the focus on the Canadian context, he argues that there is a distinct and unique constitutional relationship between Aboriginal peoples and the state, a relationship that is absent between other Canadians and the state. This relationship is based on four social facts of Indigenous societies: Indigenous peoples have distinct societies, economies, and cultures that have been historically and presently threatened and undermined by non-Indigenous societies and ideologies; before European contact, Indigenous communities lived and occupied extensive areas of North America; prior to European arrival, Indigenous peoples exercised sovereignty over both individuals and territories; and Indigenous communities engaged and still engage in a treaty process with the Crown, reflecting ongoing character of negotiations and agreements. Macklem further contends that historical sovereignty of Indigenous nations, on par with European counterparts at the time of contact, challenges Canada’s rightful exercise of sovereign authority over Indigenous peoples and their territories.¹⁰

Despite historical differences compared to Indigenous peoples who engaged in formal treaty processes, the concept of Indigenous difference holds relevance for the Sámi people. The Sámi share commonalities with Indigenous peoples globally in terms of the history and on-going processes of colonisation and their relational epistemologies and ontologies that inform their traditional livelihoods and ways of life. The concept of Indigenous difference is particularly pertinent in highlighting the distinct status and rights of the Sámi as an Indigenous people who have historically inhabited and governed specific territories through their siida and other systems and practices – an aspect that is frequently omitted from the Sámi rights discourse.¹¹ It underscores the need to acknowledge and respect the Sámi people’s inherent right to self-determination in policy and law, protect their social, political, and cultural institutions, and advance equitable representation in decisions affecting Sámi society and territories. The right to self-determination is inherent in the sense that the right does not derive from a constitution or legislation of a colonial state but rather, originates from the historical existence of Indigenous peoples as sovereign entities with their own legal and governance systems prior to colonisation.¹² As the subsequent sections illustrate, there is not only a lack of comprehension of the Sámi people through Indigenous difference in Finland, but the Sámi are portrayed and actively constructed as an ethnic or linguistic minority.

The Sámi delegation and the proposed Sámi act

In order to understand the failure of operationalising Sámi self-determination in Finland we need, following Lu’s argument, to contextualise current practices of structural injustice within a historical perspective. For the purposes of this article, the most relevant historical framework is the process of formalising the Sámi political participation within the state structures in the early 1970s. As the pan-Sámi rights movement gained momentum in the Nordic countries, the emerging, recently educated Sámi generation in Finland advocated for establishing a national Sámi organisation akin to those in Norway and Sweden. The idea did not, however, take off among the older generation of politically active Sámi who preferred an elected, representative body within the government. A Sámi representative body was also a central recommendation of the Sámi Committee established in 1971, considered necessary for the Sámi to ‘develop their own culture without outside interference’.¹³ Concerned about the rising Nordic Sámi rights movement, the government of Finland agreed, hoping to address the ‘Sámi question’ by managing it.¹⁴

The first elections of a Sámi representative body were swiftly held in late 1972. Founded by a decree, the Sámi Delegation consisted of 20 members chosen by ballot of eligible Sámi. This practice continues today in the Sámi Parliament elections, held every four years. The candidates are Sámi and there are no electoral districts. All Sámi in Finland, regardless of their domicile, who are registered in the election roll are eligible to run for the elections and cast a vote. The legal position of the Sámi Delegation was ambiguous since it was neither an ordinary state authority nor an organisation subject to private law. The state was under no explicit legal obligation to finance its activities. Unlike its successor the Sámi Parliament, it did not have the authority to represent the Sámi people of Finland nationally or internationally.¹⁵ Without decision-making authority, its role was limited to issuing statements and submitting initiatives related to matters pertaining to the Sámi people in Finland. In certain areas such as education and language policy, the Sámi Delegation had a more proactive role. It strengthened the status of the Sámi language, including the drafting of and proposal for the Sámi Language Act in 1987, passed in 1992 and revised in 2004.¹⁶

In addition to pushing for the establishment of a representative body for the Sámi, the 1971 Sámi Committee recommended drafting and enacting a Sámi Act, as suggested by the first Committee of Sámi Affairs in 1952.¹⁷ Extensive legal and historical research into Sámi land rights had begun in the early 1970s, and in the 1980s a new committee was set up to draft legislation to address Sámi land rights. The proposal for the Sámi Act was submitted to the government in 1990, coinciding with the passing of the ILO Convention 169 in 1989 within the United Nations framework.¹⁸

The proposed Sámi Act consisted of two main components. It sought to recognise the Sámi rights to their territories and transfer the ownership and management of ‘public’ land to Sámi siidas from the state, and able Sámi decision-making authority in their own affairs. Due to vehement opposition, however, the proposed legislation was defeated.¹⁹ Following the failure of the proposed Sámi Act, a compromise was reached whereby the second component, Sámi self-government, was preserved for further negotiation. The legislative efforts concerning Sámi land rights and the ratification of the ILO Convention were separated into a distinct process with the objective of expeditiously addressing them in tandem. The negotiations pertaining to Sámi self-government became known as ‘Sámi cultural autonomy’, and lead to the constitutional recognition of the Sámi as an Indigenous people in Finland and of their right to ‘cultural autonomy’ in 1995. According to the constitutional recognition, the Sámi, in their geographically delineated ‘Sámi home region’, have the right to internal self-determination to affairs related to culture and language.²⁰ Concurrently, the Sámi Parliament Act was passed with the goal of instituting an administrative and political framework for Sámi self-government. The Sámi Parliament replaced the Sámi Delegation and was tasked overseeing Sámi ‘cultural autonomy’.

The mandate of the Sámi parliament: self-administration

The proposed Sámi Act aimed to secure a considerably broader scope of Sámi self-governing powers. Instead, the more limited Sámi Parliament Act was enacted, which underwent further dilution by the Finnish government just prior to approval. During this process, a key mandate – directly proposing initiatives to the national parliament on legislative and funding issues – was removed. The Sámi Parliament was stripped of political authority and relegated to a consultative capacity.²¹ Its mandate is to represent the Sámi in Finland nationally and internationally, and to promote and protect the Sámi language and culture. The Sámi Parliament is also entitled to issue proposals and statements to various authorities on matters relating to the Sámi. It is financed by the state and operates under the Ministry of Justice. Although the Sámi Parliament’s status improved from that of the weaker Sámi Delegation, it lacks self-government authority and jurisdiction. The decision-making power of the Sámi Parliament is limited to hiring staff, organising elections, creating Sámi-language educational materials, and determining the allocation of the annual state budgeted funds for Sámi cultural activities and organisations.

The idea behind the Sámi Parliament was to establish a dynamic framework that would enable the development of Sámi self-government by the Sámi community. The goal was to progressively advance self-government by refining the provisions within the Sámi Parliament Act, thus reinforcing the Sámi Parliament’s role in operationalising self-government. Yet the inverse has occurred, and the growth of Sámi self-government and the exercise of self-determination have been stymied. Over its two-decade-plus existence, there has not been a single amendment to the Sámi Parliament Act that represented a progression of Sámi self-government.²² Not surprisingly, long-standing Sámi leaders have expressed unease with the elected Sámi body focused only on cultural and language matters without authority to advance the Sámi status as an Indigenous people with land rights.²³ This is a growing concern in the current context of exponential increase of development pressures on Sámi territories in the name of decarbonisation and energy transition.

The Sámi and their institutions have been incorporated into participatory democracy and political institutions to an extent that exceeds most other Indigenous peoples globally.²⁴ For some Sámi scholars, this integration has resulted in a greater degree of self-determination for it allows the Sámi, through their representative bodies, to influence decisions and policy relevant to them.²⁵ At best, consultation with national governments constitutes participatory engagement in broader social and political structures, an aspect of the norm of self-determination. Yet, consultation falls short of non-domination and the substance of political autonomy premised on decision-making and authority over internal affairs. There is also a considerable difference between self-government and shared rule and the two should not be conflated.²⁶

What is more, overseeing the administration, appointing representatives to various state bodies and managing funding from the state is not self-government but amounts only to what scholars have called ‘self-administration’.²⁷ Self-administration implies a level of control over the implementation and oversight of programmes and initiatives, yet true self-government involves broader decision-making power and authority over internal affairs. Other scholars suggest that various strategies of incorporation into the state represent contemporary forms of internal colonisation. Political theorist James Tully maintains that internal self-government represents ‘an indirect form of colonial rule’ and therefore, does not constitute a legitimate manifestation of self-determination.²⁸ For Tully, one of the characteristics of incorporation is difference-blind liberalism that treats Indigenous people like any other members of the mainstream society.²⁹ Incorporation and difference-blind liberalism, which treat Indigenous individuals akin to other members of mainstream society, exemplify structural injustice by disregarding historical injustices and the persistent impacts of colonisation, dispossession, and systemic discrimination experienced by Indigenous communities. These approaches perpetuate systemic inequalities and curtail Indigenous peoples’ self-determination regarding their lands, resources, and governance.

In the Nordic countries, the concept of the homogenous nation dominates public perceptions, legal frameworks, and political discussions.³⁰ The ideologies promoting individualism and societal fairness, often leading to a pursuit of uniformity, continue to wield considerable influence in Finland and the other Nordic states.³¹ The framing of equality as sameness takes place within the framework of individualism in which there is very little attention paid to structural relations of power, let alone Indigenous difference.³² In Finland, the state’s stance on Sámi matters has historically been guided by principles of formal equality and integration, where ethnic groups are not granted specific consideration or status based on difference.³³

Contrasting ideologies of the welfare state and the collective rights of Indigenous peoples demonstrates how the core principles of egalitarianism, social parity, and individualism pose significant challenges for the advancement of Sámi self-government. These principles play a role in constraining the understanding of Sámi minority rights among non-Sámi individuals, Scandinavian policy-makers, and society as a whole.³⁴ The Sámi might be constitutionally recognised as an Indigenous people but in policy frameworks and public and political discourse, they are constructed and represented within the frameworks of individualism and formal equality of individuals. Such frameworks do not easily translate into collective self-determination or an exercise of Sámi self-government. Further examples of Sámi self-administration and indirect forms of colonial rule can be found embedded in the Sámi Parliament Act, such as the so-called Sámi definition and duty to consult.

‘The Sámi definition’

Since the passing of the Sámi Parliament Act, there has been an ongoing struggle over the legal definition of the Sámi in Finland. The dispute has played a major role in stalling progress on advancing Sámi rights and developing self-government. The Sámi Parliament Act stipulates that for the purposes of the election register, a person is considered Sámi if (1) they, or at least one of their parents or grandparents has learnt Sámi as their mother tongue; (2) the person is a descendant of a person who historically was entered in a land, taxation or population register as a ‘mountain’, ‘forest’, or ‘fishing’ Lapp; or (3) at least one of their parents has, or could have been, registered as a voter for an election to the Sámi Parliament or its predecessor, the Sámi Delegation.³⁵ Prior to the 1995 legislation, all three Nordic countries had nearly identical definitions based on the language.³⁶ In Finland, the inclusion of an additional category concerning ancestors’ livelihoods in the Sámi Parliament Act was prompted by the incessant pressure from the non-Sámi population in the Sámi region, particularly in response to the vehement objection to the proposed Sámi Act. Despite strong opposition from the Sámi and scholarly community, this amendment was made.³⁷

As a result of the expanded Sámi definition in the 1995 Sámi Parliament Act, several hundred previously non-Sámi individuals have applied for and enrolled in the Sámi Parliament electoral roll. While a specific committee within the Sámi Parliament processes these applications, individuals facing rejections can take their appeals to the Supreme Administrative Court of Finland. In the autumn of 2015, the Supreme Administrative Court endorsed 93 previously rejected applicants just days before the closure of the Sámi Parliament election polls. On these grounds, Finland was rebuked by the UN Human Rights Committee in 2019 for violating the rights of the Sámi people to their right to self-determination, including the right to decide their membership.³⁸

A situation where the Supreme Administrative Court of Finland rather than Sámi institutions decide who is eligible for the Sámi Parliament elections highlights how structural injustices and domination manifest within legal and political systems, leading to unfair outcomes and undermining the very foundation of a people’s right to self-determination. The ability of previously non-Sámi individuals to apply for the Sámi Parliament electoral roll without an existing connection to the Sámi community, can be seen as an unfair manipulation of the system. It allows outsiders to exert influence over Sámi political processes, potentially undermining the self-determination and collective efforts of the Sámi people to maintain and develop their society, culture, and language.³⁹ Moreover, the timing of the Supreme Administrative Court’s endorsement of previously rejected applicants just days before the closure of the Sámi Parliament election polls, raises questions about the fairness and integrity of the electoral process. Such decisions can undermine the legitimacy of the electoral outcomes and contribute to a sense of injustice among the Sámi community.

Largely due the protracted conflict related to the so-called Sámi definition, and a lesser degree to Sámi criticism of the static and outdated legislation, there have been several attempts to amend and update the Sámi Parliament Act since 2011. The most recent proposal from 2022 aims to advance self-government regarding Sámi language and culture and amend the Sámi definition for the purposes of the elections.⁴⁰ Additionally, the proposed legislation seeks to better align with international Indigenous rights mechanisms, emphasising negotiation and cooperation, and considering the principle of free, prior, and informed consent (FPIC). The overall objective is to enhance the Sámi Parliament’s role in decision-making, strengthen authorities’ understanding of Sámi living conditions, and improve the consideration of Sámi rights in policy and state bureaucracy.⁴¹

The most pressing goal of the legislative amendments is to correct the current situation regarding the Sámi definition clause in the Sámi Parliament Act. The UN Human Rights Committee has found that Finland is violating its obligations of the Convention on Civil and Political Rights, and requires that the Sámi definition be revised, the electoral roll be compiled from scratch based on the new criteria, and that appeals in electoral roll matters be developed. In addition, in June 2022, the UN Committee on the Elimination of Racial Discrimination issued its decision in the case concerning persons accepted on the Sámi electoral roll, in which it is stated that Finland has violated the Convention on the political rights of the appellants.⁴² Another central aim is to make it clear that the Sámi definition is solely about being listed in the Sámi Parliament electoral roll, enabling voting, running for office, and participating in decision-making within the Sámi Parliament; that is, not an exhaustive definition of who is considered Sámi in Sámi society.⁴³

The duty to consult

In the current Finnish legislation, the exercise of Sámi self-government is carried out through hearing and negotiating with the Sámi Parliament in accordance with the Sámi Parliament Act article 9. The article requires all authorities in Finland to consult the Sámi people ‘on any far-reaching and significant measure which may have an immediate and specific impact on the status of the Sámi as an Indigenous people and which concern the Sámi homeland’, including ‘exploration for, and exploitation of, mineral deposits and gold mining in the country’s land and water areas’.⁴⁴ This duty to consult also applies to education, social and health services, community planning and the use and management of lands as well as conservation areas in the Sámi region. Specifically, the Sámi Parliament Act stipulates the Sámi participatory rights in relation to the land use in the Sámi area. In addition to the consultation and negotiation procedure, the Sámi Parliament has statutory representation in some institutions as an advisory body. In terms of its legal effectiveness, statutory representation is comparable to consultation and negotiation. In some of the most recent pieces of legislation, the Sámi Parliament has secured the option to monitor the legality of the actions and decisions of the authorities by means of the right of initiation and appeal. Nevertheless, its opportunities and authority to participate in the management of traditional Sámi livelihoods, land and water areas and natural resources remain severely restricted.

The Finnish authorities interpret the obligation to negotiate as a formal administrative procedure and requirement for their decision-making rather than as an arrangement for operationalising Sámi self-determination. Thus, the Sámi people are in a subordinate, unequal position compared to the authorities in any negotiation, considering that the decision-making power rests solely with the authorities. While obligated to consult the Sámi Parliament, state representatives are not bound to take the views of the Sámi Parliament into account in decision-making{Myntti, 1997 #3119: 124;Myntti, 1997 #3120}. The negotiation procedure is also an arrangement outside the actual decision-making process of the authorities. The Sámi have not been secured an opportunity to participate in the decision-making itself, only a means to seek to influence the decision-making. Thus, exercising the consultation right cannot be called participation in actual decision-making or an exercise of Sámi self-government.⁴⁵

What is more, the Finnish Government has frequently failed in recent years to uphold its basic legal responsibilities regarding its duty to consult the Sámi people. In 2016, the revised Act governing Metsähallitus was enacted without obtaining consent from the Sámi Parliament or the affected reindeer herders. Metsähallitus, a state entity, manages land use in more than 90% of the traditional Sámi territories classified as state-owned. An earlier draft of the Act included a specific section containing provisions concerning land use in the Sámi region. It introduced a prohibition against actions that would harm Sámi culture, and it mandated that Metsähallitus conduct an impact assessment of planned activities on Sámi culture and traditional livelihoods while mitigating potential negative effects. The section also granted the Sámi Parliament and Skolt Sámi Village Council the right to appeal decisions made by Metsähallitus if those decisions disregarded the prohibition. Importantly, ‘Sámi culture’ in this context was broadly defined comprising Sámi traditional livelihoods and land use practices.⁴⁶

The ‘Sámi section’ was, however, dropped from the final version of the Act. The omission drew strong criticism from the UN Special Rapporteur on the Rights of Indigenous Peoples, who asserted that Finland’s actions contravene Article 19 of the UN Declaration on the Rights of Indigenous Peoples. This article specifies the right of Indigenous peoples to provide free, prior, and informed consent before new laws and policies are enacted. The UN Special Rapporteur on the Rights of Indigenous Peoples Victoria Tauli-Corpuz expressed her concerns about the amendments of the Metsähallitus Act by noting that the bill is ‘contrary to article 19 of the Declaration of the Rights of Indigenous Peoples which Finland has endorsed’.⁴⁷

In 2017, the Sámi community and their political bodies were inadequately engaged and consulted during the bilateral negotiations between Norway and Finland concerning the fishing agreement for the Deatnu River, known for its extensive history of traditional Sámi salmon fisheries. While Sámi representatives were formally included in the national negotiation teams, their participation appeared largely symbolic. Critical discussions leading to the final agreement occurred behind closed doors, without any Sámi presence, as government representatives from both countries convened for several private meetings. Notwithstanding the appeals made by Sámi members, their reservations about the process and procedures were overlooked, leaving them without a substantial chance to participate in meaningful dialogues with state representatives.⁴⁸

The third example is the currently dormant Arctic Railway Initiative, a process formally initiated in 2017. The Sámi Parliament was not included in the initial consultations despite its multiple requests for consultations with the Minister of Transport and Communications.⁴⁹ According to the former president of the Sámi Parliament Tiina Sanila-Aikio, the proposed Arctic Railway was the underlying reason why the section safeguarding Sámi rights was removed from the Metsähallitus Act in the year previous. This removal was, in Sanila-Aikio’s view, necessary to prevent the Sámi from attaining a position of considerable influence concerning land use and planning in the Sámi region.⁵⁰

The fourth blow to the state’s already deficient track record of upholding its legislative duty to consult the Sámi occurred in March 2019 when amendments were made to the Mining Act. The changes streamlined the process for mining companies to secure initial permits without requiring an environmental impact assessment. These amendments were enacted hastily, and notably, the Sámi Parliament was not consulted during the revisions.⁵¹

Land rights are the foundation for Indigenous peoples’ right to self-determination, enabling jurisdiction over their territories and resources. In the case of the Sámi in Finland, the recognition of their right to land and water has been a long-standing, vexing issue in the country’s political landscape. Since 1990, the Finnish government has delayed the ratification of ILO Convention 169, despite expressing intentions to promptly ratify it. The formal reason for the delay has been the non-alignment of Finnish legislation with the Convention’s provisions regarding Indigenous peoples’ rights to their traditional territories and resources. In the 1990s, the government pushed for a prompt revision of national laws to conform with the Convention in order to lay the groundwork for eventual ratification. However, legal advancements were limited, and the government’s initial ratification objective established in 1990 has gradually faded from prominence due to several factors, not least due to the ongoing struggle over the Sámi definition.⁵² The Finnish government has remained largely unresponsive to criticisms by international human rights bodies and their calls to ratify the Convention. Over the years, numerous proposed solutions for addressing the land question have been rejected, often citing the issue as ‘contradictory’, which demonstrates an ingrained reluctance to uphold fundamental doctrines of international law concerning Indigenous rights.⁵³

Moreover, various United Nations bodies have consistently criticised the Nordic countries, including Finland, over several years for their inadequate protection of the Sámi people’s rights to their lands and traditional livelihoods. These criticisms have revolved around the lack of meaningful consultation and the failure to obtain free, prior, and informed consent from the Sámi community. The Committee for the Elimination of Racial Discrimination (CERD) has repeatedly urged Finland to adhere to international standards and uphold its own laws and constitutional obligations regarding the Sámi people.⁵⁴

FPIC is considered a key mechanism for non-domination and operationalising self-determination as it empowers and enables Indigenous communities to make autonomous decisions regarding projects or policies that may affect their lands, resources, and rights. Through FPIC, Indigenous peoples assert their agency and control over decisions that affect their lives and territories, rather than being subjected to external domination. FPIC seeks to protect Indigenous communities from arbitrary power and to prevent unilateral actions by governments or corporations that could harm Indigenous peoples’ rights and interests, thereby reducing the risk of domination. FPIC embodies principles of participatory democracy that empowers Indigenous peoples to shape their own futures and challenges systems of domination that exclude or marginalise their voices.

Recent failures engage in meaningful consultation demonstrate the state’s reluctance to move beyond the minority rights framework for the Sámi, specifically in terms of considering Sámi land rights. The state perpetuates a narrow focus on cultural aspects alone, relegating the Sámi to a cultural minority rather than recognising their broader rights, including self-determination over their traditional territories. The refusal to address Sámi land rights within a broader framework of self-determination reinforces and perpetuates the culturalization of the Sámi people.

Culturalizing Sámi self-government and indigenous difference

The Sámi in Finland are constitutionally recognised as an Indigenous people but their right to self-determination is confined to language and culture. Under international law, all peoples possess the right to self-determination. Since the adoption of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) in 2007, this right has also been acknowledged as belonging to Indigenous peoples. While UNDRIP’s Article 4 outlines the right to self-determination of Indigenous peoples in relation to ‘internal and local affairs’, it does not confine self-determination to language and culture. The constitutional recognition of the Sámi in Finland resembles legal manipulation; it first acknowledges the Sámi as an Indigenous people but in the same sentence asserts that their rights are in fact minority rights rather than based on the foundational right of Indigenous peoples, that of self-determination.

Understanding the right to self-determination involves distinguishing between cultural and political autonomy. Cultural autonomy focuses on decisions within cultural realms like language and education. Political autonomy, on the other hand, recognised in the UNDRIP’s Article 3, extends to decision-making beyond culture and encompasses broader collective rights for peoples. In Finland, the Sámi are treated and constructed as a linguistic or ethnic minority in law, policy, and public discourse. Minority rights are essentially individual rights, although they may necessitate a group to exercise them such as speaking a language. International minority rights do not fully recognise collective self-determination, even though some groups may have limited cultural autonomy. The Sámi Parliament Act notwithstanding, the Sámi in Finland lack self-government, particularly in key areas like political and social development crucial to the right to self-determination. The Sámi Parliament does not have decision-making authority over Sámi affairs but rather, serves a national advisory body on Sámi issues to the government authorities that have a legislative duty to consult the Sámi on issues affecting them.

Consultation with national governments is a form of participatory engagement within the broader structures of society and politics, aligning with the principle of self-determination. However, it does not fully embody the essence of political autonomy, which entails jurisdiction and decision-making powers over internal affairs. It is also crucial to distinguish between self-government and shared rule. The Sámi and their institutions have been deeply integrated into Nordic participatory democracy and political systems, surpassing the level of integration seen in many other Indigenous communities worldwide. For some, this integration represents a form of self-determination, enabling the Sámi, through their representative bodies, to influence decisions and policies that affect them. In recent years, this influence has been weaning rather than increasing in Finland, evident in examples discussed above. Moreover, others have argued that integration into the state mirror contemporary forms of internal colonisation, suggesting that limited internal self-government is a form of indirect colonial rule, not a valid manifestation of self-determination. Incorporation often involves a difference-blind liberalism that treats Indigenous individuals like any other members of mainstream society. This characteristic continues to be prevalent in the Nordic countries vis-à-vis the Sámi people and forms a major obstacle in implementing Sámi self-determination or exercising Sámi self-government in Finland. Assuming control over administration, funding, and management from the state constitutes ‘self-administration’ rather than genuine self-government.

Redressing structural injustice and relations of domination vis-à-vis the Sámi in Finland requires a profound departure from the current cultural autonomy framework, including construing and perceiving Sámi rights as minority rights and non-compliance with existing legislated national commitments. It would involve revising current laws and formulating new ones that align with the minimum global standards regarding Indigenous rights, alongside allocating resources, and opportunities for their effective implementation. It would also entail properly entrenching Sámi people as an Indigenous people, which encapsulates unique historical, cultural, and social aspects, into policy and legislation in order to implement the Sámi’s right to self-determination and operationalise Sámi self-government in practice. Macklem’s concept of Indigenous difference, while developed within the Canadian context, is pertinent in the Sámi context as well as it highlights a distinct and unique constitutional relationship between the Sámi and the Finnish state. Further, Indigenous difference in the Sámi context would enable greater attention to the ways in which historically, Sámi communities lived and occupied extensive areas of Scandinavia and how prior to colonisation, the Sámi exercised sovereignty over their territories and communities.

As Lu maintains, if the historical destruction of Indigenous governance persists as structural injustice for contemporary individuals, then addressing them necessitates allocating resources to mitigate these ongoing effects of colonialism. Rectifying these enduring injustices may even warrant deviations from difference-blind liberalism in order for Indigenous peoples to have real opportunities for self-determination in contemporary societies.

Conclusion

This article has examined the ways in which framing of Sámi rights in Finland as cultural autonomy – relegating the Sámi people to the status of a culture or minority rather than acknowledging them as a distinct people or polity – represents a fundamental barrier to achieving Sámi self-determination. It has been argued in this article that achieving structural justice for the Sámi people requires reparative actions such as establishing arrangements that surpass democratic equality, enabling and advancing collective self-determination. In my analysis, this involves not only amending the Sámi Parliament Act but revising the constitutional recognition of the Sámi in Finland in way that Sámi self-determination is not confined to language and culture, even if culture is understood as encompassing material foundations.

Constructing Sámi rights in terms of cultural rights reduces the Sámi people to a cultural entity rather than recognising them as a distinct people or political entity with the right to self-determination as construed in international law. As the proposed Sámi Act failed in the early 1990s, the question of Sámi land rights was eliminated from the legislative changes which focused solely on Sámi self-government narrowly constructed as cultural autonomy, or the rights of the Sámi to their language and culture. This framework became the foundation of the Sámi Parliament Act passed in 1995. The recent proposed amendments to the Sámi Parliament Act seek to better attend to the international Indigenous rights framework, including revisions related to the duty to consult and seek to enhance negotiation and cooperation. This would strengthen the Sámi Parliament’s ability to participate and influence matters particularly important for the Sámi community. However, as long as the ‘cultural autonomy’ framework is constitutionally entrenched, the problem of culturalizing the Sámi in Finland persists.

Culturalizing Indigenous peoples disregards and dismisses their history and unique political, social, and legal systems, reducing them to cultures rather than peoples with the right to self-determination under international law. It has significant legal and political implications as it diminishes Indigenous peoples to minority status and frames their rights in terms of minority rights. While there is some overlap between international Indigenous and minority rights, they are governed by separate legal frameworks. Both Indigenous and minority rights are aimed at preserving culture and preventing discrimination. The crucial distinction between Indigenous rights and minority rights lies in the foundation of Indigenous rights; the principles of self-determination and ownership of land and resources emanating from their status as distinct peoples. International minority rights do not contain these fundamental elements, in contrast to Indigenous rights where self-determination serves as the foundation for other rights.

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Notes

¹ Kuokkanen, Restructuring Relations: Indigenous Self-Determination, Governance and Gender.

² See, for example, Kymlicka, “The rise and fall of multiculturalism? New debates on inclusion and accommodation in diverse societies,”. He argues that according to which conventional multicultural policies focusing on celebrating the cultural diversity of minority groups do not adequately address the distinct rights and needs of Indigenous peoples.

³ See, for example, Anaya, Indigenous Peoples in International Law.

⁴ Young, Justice and the politics of difference, 41.

⁵ Young, “Two Concepts of Self-Determination,” 188.

⁶ Kuokkanen, Restructuring Relations: Indigenous Self-Determination, Governance and Gender.

⁷ Lu, Justice and Reconciliation in World Politics, 174.

⁸ Schulte-Tenckhoff, “Treaties, Peoplehood, and Self-Determination: Understanding the Language of Indigenous Rights”.

⁹ Eide and Daes, Working paper on the relationship and distinction between the rights of persons belonging to minorities and those of indigenous peoples.

¹⁰ Macklem, Indigenous Difference and the Constitution of Canada.

¹¹ See, for example, Lehtola, “The Saami siida and the Nordic states from the middle ages to the beginning of the 1900s”.

¹² See, for example, Iorns, “Indigenous peoples and self determination: Challenging state sovereignty,” Case Western Reserve Journal of International Law, 24; McNeil, “Challenging Legislative Infringements of the Inherent Aboriginal Right of Self-Government,” 22.

¹³ Saamelaiskomitea, Saamelaiskomitean mietintö.

¹⁴ Lehtola, Saamelaisten parlamentti.

¹⁵ Myntti, “The Nordic Sami Parliaments”.

¹⁶ The Act on the Use of the Sámi Language before the Authorities (516/1991). Under this act, the Sámi have the right to use their own language before certain authorities and agencies. The act does not, however, place the Sámi language on an equal footing with the two official languages of Finland, Finnish and Swedish.

¹⁷ Saamelaisasiain komitea, Saamelaisasiain komitean mietintö.

¹⁸ Aikio and Hyvärinen, “Review of Finnish legislation on the Sámi in 1993”.

¹⁹ Opposition included a large segment of the non-Sámi population in Northern Finland, a number of state bodies regionally and nationally, several ministries and Metsähallitus, the state-owned parks and forest enterprise.

²⁰ The Constitution of Finland, Art. 17.

²¹ Lehtola, Saamelaisten parlamentti.

²² Guttorm, “aamelaisten itsehallinto Suomessa – dynaaminen vai staattinen?”.

²³ Aikio, and Alajärvi”.Suomen Saamelaiskäräjät täyttää tänään 20 vuotta – ‘Silloin oli suuret odotukset maaoikeuksien suhteen’.

²⁴ Selle et al., Den samiske medborgeren; Myntti, “The right to political participation of indigenous peoples. The case of Finnish Sámi”; Eide, “Indigenous Self-Government in the Arctic, and their Right to Land and Natural Resources”.

²⁵ Broderstad, ‘Implementing Indigenous Self-Determination: The Case of the Sámi in Norway’.

²⁶ See, for example, Bednar, “The Political Science of Federalism”.

²⁷ Green, “Decolonizing in the Era of Globalization”; Angus, “To break with the past. Searching for the meaning of self-determination”; Cornell, Curtis, and Jorgensen, The concept of governance and its implications for First Nations; Coates, ‘Administered peoples: Indigenous nations and regulated societies’; Martin Papillon, Aboriginal Quality of Life Under a Modern Treaty: Lessons From the Experience of the Cree Nation of Eeyou Istchee and the Inuit of Nunavik; Moreton-Robinson, ‘Introduction’.

²⁸ Tully, “The struggles of indigenous peoples for and of freedom”.

²⁹ Ibid.

³⁰ Agust Thor Arnason, “The good state of the constitutional innocents of the Nordic societies”.

³¹ Tuulentie, “For and against the rights of the Sami people: The argumentation of the Finnish majority in the debate on the Sami rights’; Gullestad, ‘Imagined sameness: Shifting notions of “us” and “them” in Norway”.

³² See, for example, Nyyssönen, “Principles and practice in Finnish national policies towards the Sámi people”.

³³ Nyyssönen, “Principles and practice in Finnish national policies towards the Sámi people’; Kuokkanen, “Self-determination and Indigenous Women – ‘Whose Voice Is It We Hear in the Sámi Parliament?”.

³⁴ Olsson and Lewis, “Welfare Rules and Indigenous Rights: the Sami People and the Nordic Welfare States”.

³⁵ Myntti, “The Nordic Sami Parliaments”.

³⁶ See Mörkenstam, Selle, and Valkonen, “Who are ‘we, the people?’ A comparative analysis of the right to register in the Sámi electoral roll in Finland, Norway and Sweden”.

³⁷ Several scholars pointed out these taxation and population registers were not ethnicity, but livelihood based. See, for example, Korpijaakko-Labba, “atsaus saamelaisten maanomistusoloihin’; Kvist, ‘The Racist Legacy in Modern Swedish Saami Policy”.

³⁸ Human Rights Committee, Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communication No. 2668/2015, United Nations (Geneva, 2019).

³⁹ See Junka-Aikio, “Can the Sámi speak Now? Deconstructive research ethos and the debate on who is a Sámi in Finland”.

⁴⁰ The most recent effort to amend the legislation failed in early 2023, in the eve of the parliamentary elections in Finland. The new government submitted the amended bill, similar to the previous one, to the parliament in late 2023. While minor revisions may still occur, the Sámi Parliament has firmly stated that concessions regarding electoral roll entries are no longer feasible. Notably, the approval of the Sámi Parliament is crucial for the legislative reform, strongly opposed by all MPs from Northern Finland.

⁴¹ HE 274/2022, Hallituksen esitys eduskunnalle laeiksi saamelaiskäräjistä annetun lain ja rikoslain 40 luvun 11 §:n muuttamisesta (The government’s proposal to parliament on amending the law on Sámi Parliament and Chapter 40 § 11 of the Criminal Code).

⁴² HE 274/2022, Hallituksen esitys eduskunnalle.

⁴³ Ibid.

⁴⁴ Laki saamelaiskäräjistä 974/1995 Art. 9.3.

⁴⁵ Guttorm, “Saamelaisten itsehallinto Suomessa – dynaaminen vai staattinen?”.

⁴⁶ The material basis of Sámi culture and the connection between countries and culture have also been recognised and confirmed in interpretations of international law. See Smith, “The development of Sámi rights in Norway from 1980 to 2007”; Smith et al., Pohjoismainen saamelaissopimus. Suomalais-norjalais-ruotsalais-saamelaisen asiantuntijatyöryhmän 27. lokakuuta 2005 luovuttama luonnos. See also UN Human Rights Committee, Kitok v. Sweden (197/1985), I. Länsman et al. v. Finland (511/1992), ja J. Länsman et al. v. Finland (671/1995).

⁴⁷ Aikio”.Suomi sai nuhteita YK:n alkuperäiskansojen oikeuksien erityisraportoijalta – ‘Metsähallituslakiluonnos uhkaa saamelaisten oikeuksia’.

⁴⁸ Kuokkanen, “The Deatnu Agreement: a contemporary wall of settler colonialism”.

⁴⁹ Suoninen”.Johtolat- ja diehtojuohkinministeriija ráđđádallá Jiekŋameara ruovdegeainnus Sámedikkiin ođđajagimánus – Sámediggi bivdán ráđđádallamiid juo geasset”.

⁵⁰ Alajärvi. “Sanila-Aikio: ‘Ruovdegeaidnu Jiekŋamerrii duođalaš sivva sámečuoggáid sihkkumii meahciráđđehuslágas”.

⁵¹ Paltto, Suoma ruvkeláhka rievdaduvvoi – Stáhta álkida ruvkefitnodagaid lohppeohcánvuogádaga.

⁵² The common argument by those individuals and groups who feel excluded from the Sámi Parliament is that” Finland cannot ratify an international treaty if we don’t know who it applies to”.

⁵³ Korpijaakko-Labba, Maanomistustyöryhmän selvitys II Osamietintö: Oikeusministeriön maaoikeustutkimus-projektin tuottamien selvitysten oikeudellista arviointia, Saamelaiskäräjät.

⁵⁴ CERD, Concluding observations on the twentieth to twenty-second periodic reports of Finland, adopted by the Committee at its eighty-first session.