Supreme Administrative Court’s rulings are exposing the Sámi to threats and cyberhate.
Last week, representing the Centre Party demanded openly that the Sámi Parliament should be closed down and all funding cut off, claiming its Electoral Committee guilty of legal offences and violations of human rights. In addition to complaining to the state’s ombudsman, he announced that he had initiated a police investigation to the activities of the Electoral Committee.
As several times before, his populist rhetoric met a receptive public in like-minded “human rights defenders”, some of whom were ready to call the Sámi publicly as “total pigs”, to demand dissolution of “the whole Sámi Parliament shit”, or to argue that “the whole bunch” should be “placed in front of the wall”, presumably in reference to the style of execution that was used against leftist opposition during Finland’s 1918 Civil War.* Since my spouse is a Sámi who works for the Sámi Parliament, such words do more than raise academic curiosity – they actually feel sickening.
Unfortunately, similar discussions relating to the Sámi can be found very easily in the social media and on relevant discussion forums. While online hate-speech, which targets especially women and ethnic or sexual minorities, might be characteristic of our time generally, in Finland its intensification against the Sámi is also a result of an ongoing crisis in Finland’s Indigenous policy.
This crisis has evolved especially around the question of how to regulate membership in the Sámi Parliament’s electoral register when it is viewed increasingly as a personal “status”, which comes with putative benefits or leverage over Finland’s Indigenous policy, and which is therefore worth demanding, even if one’s connections to the Sámi need to be searched in distant historical records and with a magnifier lens. Although there is no doubt that personal motivations behind the broad push to the electoral register are varied, very often these new claims to Sámi identity are also accompanied by distinctively hostile rhetoric towards the Sámi, and by loud demands to bring the Sámi Parliament down, for instance by “cutting off the money”.
The movement behind these demands has been well organized, and its roots reach back to the 1990s when the establishment of Sámi Parliament and talk about the possible ratification of the ILO 169 Convention raised fears among local Finnish communities that their rights would be negatively affected (Hirvonen 2001; Lehtola 2015a and 2015b; Pääkkönen 2009). This trajectory is not unique to Finland – for instance in Canada and the United States, strikingly similar developments and movements, discussed increasingly under the conceptual grid of “race-shifting”, have become a serious concern for Indigenous peoples and critical scholarship (for instance Gaudry and Andersen 2018; Gaudry and Leroux 2017; Gaudry 2018; Leroux 2019; Sturm 2011; Valkonen, Kotiranta and Tervaniemi 2018). (Since I cannot dwell on these complex histories and debates in this short posting, I have compiled a list of relevant readings at the end of this post – I hope to expand and update the list soon).
However, unlike in Canada, where formal “status” as an Indian actually grants its holders tangible social benefits and rights, in Finland membership in the electoral roll provides nothing but a right to vote and stand as a candidate in the elections of an Indigenous institution, which has very little substantial power. There are no identity cards handed out by the Sami Parliament, and information on the electoral register itself is strongly protected by data protection laws. Accordingly, even if some actors or institutions – such as Sami language schools or kindergartens – would want to privilege families where one of the parents is “legally” Sami, they would have no means to implement such selection criteria. Despite this, rumours about “added benefits” linked to membership are spread actively, even by academics.
In addition to fuelling anti-indigenous resentment, confusion around this issue has now generated a legal-political mess which the state has been slow to grasp. This mess relates, in particular, to the Supreme Administrative Court’s involvement in Sami Parliament’s elections in 2011 and 2015, to the subsequent appeal made to the UN Human Rights Committee, and to the ways in which the state of Finland has handled the case since then.
Sanila-Aikio v Finland
is the supreme body which formally represents the Sámi in Finland and implements Sami cultural autonomy. The right to vote and stand as a candidate in its elections is regulated by Finland’s which includes a legal definition of persons who should be considered Sámi. New applications to the electoral register maybe submitted to Sámi Parliament’s Electoral Committee before elections, which are held every four years. Those unhappy with the Electoral Committee’s decisions have a right to appeal three times, first to the Electoral Committee, then to the board of the Sámi Parliament, and then to the Supreme Administrative Court (SAC). Accordingly, final decisions on whether the applicant should be considered Sámi are made by SAC, which has zero Sámi representation – a fact that, in itself, could be seen as a breech of Indigenous self-determination. However, each of these bodies is bound in their decisions by the legal Sami definition provided in the Act on Sámi Parliament.
The Sámi Parliament has never been entirely happy with the legal definition for reasons that are too complex to explain here, but until 2011, there was no significant divergence in the ways in which it and the Supreme Administrative Court (SAC) interpreted the law. This changed in 2011 when SAC ruled in favour of four persons whose applications to the electoral register the Election Committee and the board of Sámi Parliament had turned down. In the next elections in 2015, the drift between SAC and the Sami Parliament became even wider as SAC ordered 94 new persons, whom the Sami Parliament considered not Sami, to be added in its electoral roll. (Note: there are about 10 000 Sámi persons in Finland but the total number of persons included in the electoral roll is much smaller, as one has to be 18 years old to apply). These elections also saw one of them, Kari Kyrö, run as a candidate and gain a seat.
In response, the head of the Sami Parliament (Tiina Sanila-Aikio) filed an appeal to the UN Human Rights Committee, claiming that SAC’s rulings were lawless and arbitrary, and that they had seriously damaged the capacity of the Sámi Parliament to represent the Sámi, and to promote and protect the rights of the Sámi people. The appeal was made right after the latter elections in 2015, but it took three years for the Committee to investigate the matter.
In itspublished on February 1st 2019, the Human Rights Committee confirmed Sanila-Aikio’s claims, and rebuked Finland heavily. Most importantly, the Committee criticised Supreme Administrative Court for the tendency to depart, from the letter of the legal Sámi definition. According to the Act on Sámi Parliament, a person should be considered a Sámi if she meets at least one of the three objective criteria listed in the legal definition and if, in addition to that, the person considers herself Sami. In other words, you cannot add a person who meets one of the objective criteria in the electoral register if the person doesn’t self-identify, but self-identification alone does not grant a person a voting right in an institution which was established to represent the Sámi politically, and to implement Sámi cultural autonomy.
Acknowledging this, the Human Rights Committee noted that in a majority of the cases, Supreme Administrative Court had “failed to require the satisfaction of at least one of the objective criteria” listed in the legal definition, “instead applying an ‘overall consideration’” (implying that none of the objective criteria needed to be fully met for a person to be regarded as Sámi; for more, see Labba 2017), “and examining whether a person’s own opinion about considering themselves Sámi was ‘strong’” (p. 11-12).
Accordingly, the UN Human Rights Committee concluded that Supreme Administrative Court’s interpretation, which privileged the applicant’s subjective claims to self-identification and overrode the views of the Sámi Parliament, was not based on reasonable and objective criteria. Instead, SAC’s rulings had seriously damaged “the capacity of the Sami people, through its Parliament, to exercise a key dimension of Sami self-determination in determining who is Sami” and amounted to a gross violation of “Sami right for self-determination and of Sami right not to be forcefully assimilated” (ibid.) Consequently, the Committee obliged Finland to provide effective and enforceable remedy, including “full reparation” to those whose rights had been violated, and to “take all steps necessary to prevent similar violations in future”. Finland would also have to submit information on the measures taken “to give effect to the Committee’s views” to the UN by the end of July 2019.
Finland “responds”
How, then, has Finland responded? Instead of taking clear and decisive steps in compliance with the Human Rights Committee’s decision, so far the state’s actions have been characterised by inaction and by the re-enforcement of done violations. Unless there is a sudden change, the next elections of the Sámi parliament – due already this September – will take place under conditions which, considering the views of the Human Rights Committee, violate Sámi self-determination and cultural autonomy.
Below is an outline of the major events that have taken place since the Committee’s report.
Firstly, so far no process to amend the Act on Sámi Parliament has been started. Given this, the Sámi Parliament asked in June 2019 the government to postpone the coming elections by two years, until the necessary steps required by the UN would have been taken. , saying that time is too short.
Secondly, the Supreme Administrative Court has not taken any steps to annul its decisions relating to the electoral register. Therefore, the Sámi Parliament submitted formal applications to the Supreme Administrative Court, demanding it to undo its past rulings in compliance with the UN Human Rights Committee’s views. to do that, arguing that their decisions had not been illegal at the point in time they were given.
As other remedies were exhausted, in July 2019 the Sámi Parliament’s Electoral Committee removed the persons under dispute from the electoral register by itself, arguing that it was their duty to use the powers of their own jurisdiction to ensure respect for law and human rights, in a situation in which the state of Finland failed to do so.
This act resulted in a new round of individual appeals, to which SAC replied at a record speed – in a couple of days and without hearing the Electoral Committee. Presumably, rushed decisions were made in order to ensure that the persons removed from the register would have a chance to stand as a candidate in the forthcoming election. A day before the deadline for election candidacy (2.8.2019), the demanding the Electoral Committee to put them back in the electoral register.
Meanwhile, Finland submitted in all silence its formal response to the UN, which was due at the end of July, but so far its contents have not been made public. Judging on the ways the state has handled the case so far, the document is unlikely to reveal a u-turn in Finland’s Indigenous policy.
Source:
Related to SDG 10: Reduced inequalities
