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Sweden: Sami Rights Litigated in Dispute Between Two Sami Groups

(Nov. 27, 2019) On November 8, 2019, two indigenous Sami groups met in Lycksele District Court over who had the “better right” to herd reindeer in the Vapsten reindeer herding area, which includes parts of Storuman municipality in northern Sweden. (Case no. T329-17, Aktbilaga 133 Sammanställning [Case Addendum 13 Summary], on file with author.)

Legal Background

The Swedish Constitution states that the Sami have a legal right to herd reindeer, but that right is also regulated by law. (2 kap. 17 § Regeringsformen [Instrument of Government] (Swedish Constitution).)  The legal right to herd reindeer is regulated by the Swedish Reindeer Herding Act of 1971 (Rennäringslag (SFS 1971:437) as amended), which recognizes this right as an urminneshävd (right from time immemorial), and vests the right to herd reindeer with a legal entity, the Sameby (literally Sami Village) (1 § 2 and 3 st. Rennäringslag).

The Sameby was created by the Reindeer Herding Act, and its importance stems from the fact that only its members have a legally protected right to herd reindeer and receive funding from the state. (Id.) Fishing and hunting rights are tied to membership in the Sameby as well. The Sameby is an administrative and financial legal entity vested by the state with the right to herd reindeer in areas (designated as reindeer herding districts) on public and private land held by others. (1 § 3 st, and 6 § Rennäringslag.) Membership requires that a person be designated as Sami and is typically inherited from a parent, but the Sameby may also accept other Sami into the legal entity. (Id. 12 §.) In cases where a Sami person is not granted membership into a Sameby, the Sami Parliament (Sameting) may grant the Sami person membership if there are special reasons. (Id. 12 § 2 st.) In addition, a Sami’s rights would also be guaranteed under the European Convention on Human Rights (ECHR), which protects civil liberties and property rights and whose principles are enshrined in the Swedish Constitution. (2 kap. 19 § RF.)

Historical Background of the Dispute

The Sami people have historically lived in the area of Sápmi, an area covering the northernmost parts of what is today the national states of Norway, Sweden, Finland, and Russia. Starting in the late 1800s and continuing into the 1900s the regulation of cross-border grazing of reindeer limited how Sami reindeer herders could move their reindeer. Specifically, in 1919, with the passage of the Swedish-Norwegian Reindeer Herding Convention (1919 års Renbeteskonvention), the Swedish state undertook to limit the number of Swedish reindeer in Norway. As a result, the North-Sami people were forced out of Karesuendo by the Swedish state and ultimately moved south into South Sami areas, including Vapsten in the county of Västerbotten, where South Sami groups were already living and herding reindeer. (Per Axelsson et al., “Ethnic Identity and Resource Rights in Sweden,” in The Politics of Arctic Resources 129–131 (E. Carina H. Keskitalo ed., 2019).)

Despite protests from Vapsten-based herders and the prospect of growing potential for conflict and severe problems, the relocation to Vapsten became permanent and had profound consequences for local reindeer husbandry practices. Extensive herding practices of the Karesuando region replaced more intensive southern Sami practices, as the newcomers’ large herds absorbed the smaller local herds. Another contributor to tensions was that the nomadic Karesuando Sami corresponded much more closely than the non-nomadic southern Sami to the Swedish state’s segregationist ideal representation of “genuine” reindeer herders who had been allegedly less spoiled by exposure to Swedish culture. (Id. at 130.)

The Vapsten Lappby’s Arguments

By initiating the court case, the Vapsten Lappby (not part of the Sameby) have asked the court to rule that they have a “better right” to herd reindeer in the area than the Vapsten Sameby because their ancestors have been there for centuries. (Case at 2, 4–5.) The Lappby are thereby relying on the same legal construct of urminneshävd as the Girjas Sameby did when arguing for a better right to fishing and hunting rights than the Swedish state in the Girjas Supreme Court case (which finished oral arguments in October 2019, with a judgment expected by the end of the year).

The Lappby argue that, by not being allowed membership in the Sameby, the South Sami group is being prevented from exercising their legal right to herd reindeer, and that a property right has thereby been de facto expropriated from them. The Lappby also claim they have been denied their human rights, arguing that failure to welcome them into the Vapsten Sameby is a violation of article 1 (on protection of property) of the 1952 Protocol of the European Convention on Human Rights, as well as 2 kap. 15 § of the Swedish Constitution. (Case at 2.)

The Lappby argue that, with the creation of the Vapsten Sameby in the 1970s, they were discriminated against by not being allowed to join the Sameby, which was controlled by the North Sami, and that prior to 1970, the respondents forced them to cease herding reindeer by mixing the two groups’ reindeer and marking all calves as belonging to Vapsten Sameby. (Case at 10–11.) By initiating the court case the group are hoping to restore rights that they claim have been effectively taken from them.

Moreover the Lappby claim that the Vapsten Sameby’s ancestors never had a legal right to enter or remain in the Vapsten area in the first place. (Case at 2, 5–8).

The Vapsten Sameby’s Counter Arguments

The respondents, the Vapsten Samebyn, on the other hand, argue that they did indeed have a right to enter and remain in Vapsten (Case at 19–23), and that the South Sami Vapsten Lappby group have lost their herding rights by voluntarily ceasing to herd reindeer in the area. (Case at 23–25.) In addition, reportedly during the oral proceedings the Vapsten Sameby argued that there is not enough herding space to include the South Sami in the Vapsten Sameby, as the area cannot sustain a greater number of reindeer than are already herded within the Sameby, and, regardless, being a member of a Sami village requires the ability to cooperate with the current members of the Sameby, something they claim the Lappby group are not able to do.

Legal Process

The Court of Appeals for the Övre Norrland has allowed the case to go forward, finding that the Lappby have standing and that the local courts, not the Sami Parliament (Sametinget), are the correct adjudicator of the dispute.

Judgment Expected

According to the Lycksele District Court, a decision is not expected until January 31, 2020—that is, after the Supreme Court delivers its decision in the Girjas case, which is set to determine the legal meaning of the term urminneshävd, by the end of 2019.