Sámi Law: A Methodological Approach¹

2.1 Main characteristics

Law is often understood as a system of rules made and enforced by governmental or societal institutions. Norwegian law fits this model: It is both a system of rules and the product of the Norwegian legal system, which in turn is a civil law system.¹⁴ In the Norwegian legal system there is a separation of powers between three branches: the executive branch, the legislative branch and the judicial branch, in accordance with the Norwegian Constitution adopted in 1814.¹⁵ In this system sources of law consist of legislation, preparatory works, case law, customary law, administrative practice, and a conception of law, especially as expressed in the legal literature and equitable considerations. Each source has a certain dignity in relation to the others, although legislation is the most prominent among them.¹⁶ On the whole, Norwegian law and the legal system is easily accessible to the population in Norway, especially for legal professionals.

The description of Norwegian law above does not apply to Sámi law. Sámi law is not a product of a civil law system nor is it a common law system. Instead, it is of a nature common to Indigenous law, meaning that it is not written down and is primarily transferred orally and through living practices in Sámi communities and other arenas of Sámi society,¹⁷ and used, for instance, to maintain social order.¹⁸ Since it has not been recorded, systematized and articulated, the content of Sámi law can be difficult to access for people outside, and even inside, Sámi communities and arenas where Sámi law prevails.¹⁹ All this means that Sámi law is not necessarily understood as a system where, for instance, powers are shared between different branches and where rules are made and enforced by governmental institutions.

Further, different aspects of what Friedland and Napoleon write about Indigenous legal traditions, can be transferred to Sámi law. For instance, it is misleading to argue that all Sámi law is intact, formally employed, or even in conscious or explicit use.²⁰ Moreover, since Sámi law does not exist or operate in isolation from the Norwegian legal system or the Norwegian state, the impact of Norwegian law on Sámi law should not be underestimated.²¹

Insofar as Norwegian and Sámi law exist in parallel there is potential for legal pluralism. Legal pluralism is a major scientific subject globally and the concept can be applied in several different ways.²² John Griffiths’ definition of legal pluralism: “that it refers to the coexistence of more than one regulatory order in a society”,²³ is widely accepted. Davies argues that legal pluralism arises when more than one law or legal system exists in a geographical space defined by the conventional boundaries of a nation state. Research on legal pluralism includes studies of, for instance, the relationship between colonial and post-colonial societies and customary and Indigenous laws.²⁴

2.2 Some examples of Sámi law in research, legislation and case law

The following three subsections provide examples of how research material and Norwegian legislation and case law address Sámi law.

2.2.1 Research on Sámi law

As mentioned in the first section, the scope of research on Sámi law within Sámi legal scholarship is of a limited extent. However, there is some research that has been conducted by legal scholars and scholars in other fields.²⁵ One of the most cited and oldest publications is Solem’s book Lappiske rettsstudier from 1933. The book presents Sámi customs in former Finnmark County, based on Solem’s studies of historical literature, and his own observations of Sámi society and traditional Sámi livelihoods during an eight year period in the early nineteenth century when he served as a judge in Tana district court, in the northernmost part of Sápmi in Norway.²⁶

Over the last few decades several publications addressing Sámi law have been published. The Norwegian government’s investigation NOU 2001:34 and Funderud Skogvang’s book Samerett²⁷ are central in this respect. The former publication presents the results from a research project in which a number of independent scholars participated and where Sámi customs and legal opinions in different situations were studied, in relation to, inter alia, hunting, fishing, reindeer-herding, and succession. The research also brought forth Sámi terminology related to customs and legal opinions.²⁸ To some extent, the latter publication theorizes Sámi law and provides a description and analysis of how Norwegian legal sources address Sámi law.²⁹ In addition, Oskal’s and Sara’s research is central to the field of Sámi reindeer husbandry, since it contributes important knowledge of traditional reindeer husbandry ethics and system of norms, the siida-system, and the reasoning behind this system.³⁰

2.2.2 Sámi law in Norwegian legislation

In a 2008 research report on best practices for implementation of the principles of ILO Convention No. 169, Henriksen concluded that Sámi law was only taken into account to an extremely limited degree in policy decisions and in the development and application of national legislation.³¹ This conclusion seems equally applicable today, with the development of national legislation for Sámi reindeer husbandry as a partial exception.

Sámi reindeer husbandry is associated with an enormous amount of traditional knowledge about nature, animals and how to survive in nature, expressed through, inter alia, complex terminology and organizational structures.³² In Norway, Sámi reindeer husbandry is practiced according to both Sámi and Norwegian law, where the latter is principally represented by the Norwegian Reindeer Husbandry Act that came into force in 2007. The 84 provisions of the Act, regulate for instance, Sámi reindeer grazing areas, reindeer husbandry practices and organization, reindeer earmarking, and the relationship of reindeer husbandry to other uses. The Law Committee, which drafted the Act, considered it an important aim to draw up provisions based on the culture and traditions of reindeer husbandry.³³ Consequently the Act’s first section states, inter alia, that the Act shall promote culturally sustainable reindeer husbandry based on Sámi culture, traditions and customs. A more specific example is that the Act recognizes the siida as a legal subject which, for instance, can establish rights to use certain land areas.³⁴

The siida is a traditional Sámi reindeer herding unit, which since time immemorial has played a central role in the practice of Sámi reindeer husbandry. The traditional unit is associated with many unwritten norms that active reindeer herders experience as more or less binding.³⁵ However, it is important to mention here that not all of these unwritten norms have been incorporated into the Act, and that the incorporation of the siida into Norwegian law has met with criticism for not having the intended effect, with the explanation that the provisions are not fully based on concepts, understandings and priorities related to the siida.³⁶

2.2.3 Sámi law in Norwegian case law

In 1996 a Norwegian Law Courts Commission was appointed to investigate and report on several major issues, such as the organization of the central courts administration and extra judicial activities. In several places, the Commission’s report refers to a so-called Sámi dimension and discusses what duties the courts in Norway have in relation to the Sámi. The Commission found that according to section 108 (former 110 a) of the Norwegian Constitution, state authorities have a special duty to ensure that everything is done to enable members of the Sámi ethnic group to preserve and develop their language, culture and society, and that a similar duty is implied on behalf of the courts and their organization in respect of the competence, knowledge and attitudes required of judges.³⁷ Based on the Commission’s report, Indre Finnmark tingrett was established in 2004. This is a district court in Troms and Finnmark County given the special purpose of safeguarding the Sámi dimension within the courts.³⁸

Over the years, a number of civil and criminal cases in the Norwegian courts, especially those with jurisdiction in Sápmi, have had a Sámi reindeer husbandry dimension.³⁹ Civil cases have either had an internal or external character. Internal civil cases have primarily consisted of disputes within the siida and raised questions about, inter alia, who has the right to lead a siida-unit, reindeer numbers in a siida and geographical borders between different siidas.⁴⁰ Typical external cases have comprised disputes between a state or privately owned company and a reindeer-herding district, over permission to establish an industry or infrastructure project, or compensation for activities already established on land that reindeer herders in the district have used since time immemorial.⁴¹ Criminal cases with a Sámi reindeer husbandry dimension comprise cases of, for instance, reindeer theft.⁴²

In most of these cases Norwegian law, as provided for in the Norwegian Constitution, the Reindeer Husbandry Act, the Planning and Building Act; the unwritten rule of immemorial use (alders tids bruk); as well as international law, such as article 27 of the International Covenant on Civil and Political rights, have all been applied. Sámi customs have also been invoked as a rule of law in some civil and criminal cases, some with reference to article 8 in ILO Convention no 169, which establishes that states shall pay due regard to Indigenous peoples’ customs and customary law in the implementation of national laws and regulations.⁴³ In criminal cases that have reached the Supreme Court of Norway attempts to invoke Sámi customs have all been rejected in favor of competing norms of Norwegian law.⁴⁴

3.1 A four-phase research methodology

The research methodology developed by Friedland and Napoleon includes four phases.⁵² The following subsections briefly describe each phase.

3.1.1 Phase One: A Specific Research Question

The first phase in their research methodology is about finding a specific research question. According to Friedland and Napoleon it is important to start by identifying the specific question the research is going to focus on, since the better the research question, the better the outcome achieved by the researchers. To illustrate the importance of this point, the two scholars draw on an example from Canadian law: “When researching Canadian state laws, we bring questions to it that we need answers to” and “Why would we not do the same with Indigenous laws?” The two scholars also argue that all law, including Indigenous law, has to be capable of responding to the specific, and applied to the real world rather than to a series of philosophical generalizations.⁵³

3.1.2 Phase Two: Case Analysis

The second phase in Friedland’s and Napoleon’s research methodology is a case analysis, which in turn raises the question of resources⁵⁴ analyzed, with the aim of finding out: a) what the main human problem in the resource is, b) what facts in the resource matter to the particular problem, c) what is decided that solves the problem, and d) what the reason is behind the decision.⁵⁵

Friedland’s and Napoleon’s case analysis model draws on Borrows’ research on stories as a source of Indigenous law. In 2002 Borrows published research in which he retold stories as cases and used the common-law case-method to identify legal principles in single stories.⁵⁶

In the AJR Project the researchers analyzed stories and other material, with the specific research question(s) in mind. Each researcher in the project analyzed between twenty and forty stories that addressed harm or conflict in any way. Friedland and Napoleon write that the case analysis in the AJR Project led to a number of significant outcomes. For instance, it created space for discussions on harm and conflict in the communities, and showed that it is important to analyze many stories in each research area since these stories vary and many are equally rich and complex as sources of normative material.⁵⁷

Friedland and Napoleon observe that access to Indigenous legal sources is not simple, due to the consequences of colonialism. However, they recognize that informal and formal Indigenous law may be recorded in many different ways. In the AJR project they focused on stories but according to the two legal scholars it is also possible to apply many other types of resources, such as songs, dances and art, kinship relationships, place names, narratives, practices, rituals, conventions, oral histories, personal memories, information gained through interviews and other published research, as well as resources found in the structures and aims of institutions. It is also possible to apply other forms of analysis than they did, in order to engage with and articulate Indigenous laws, such as identifying legal meanings through linguistic processes. They also note that it is important to be rigorous, transparent, and consistent in the analysis, for instance by citing sources.⁵⁸

In addition to Friedland’s and Napoleon’s discussion on sources of Indigenous law, Borrows argues that Indigenous law can be found in more broadly dispersed and decentralized forms than legal scholars are accustomed to examining.⁵⁹ According to him, Indigenous law can be found in stories, songs, practices, customs, published collections of ancient origin stories, from family and elders’ teachings regarding laws in nature, from pots, petroglyphs and scrolls found in an ancient ceremonial lodge, terms within an Indigenous language, and descriptive historical accounts recorded by outsiders.⁶⁰ Of oral histories and stories he writes that they provide a public memory and are intellectual resources, and that they communicate ways of perceiving and responding to harm in a structured manner.⁶¹ He also argues that sources of Indigenous law can be sacred, natural, positive, customary, deliberative, and social interaction.⁶²

Finally, Fletcher, a law professor in America specializing in Indigenous law, argues that parties in a tribal court setting, knowledge of language and secondary literature about tribal customs and traditions are also sources of Indigenous law.⁶³

Based on the work of these scholars, Friedland has developed a three-fold categorization of the available resources as: 1) resources that require deep knowledge and full cultural immersion; 2) resources that require some community connection; and 3) resources that are publically available. She also explains how the three legal scholars address different challenges in their work in relation to the identification and availability of existing resources. She roughly sorts these challenges into five categories, namely: 1) challenges of accessibility; 2) challenges of intelligibility; 3) challenges of legitimacy; 4) challenges of distorting stereotypes; and 5) challenges of relevance and utility.⁶⁴

3.1.3 Phase Three: Creating a Framework – Primer, Synthesis, and Legal Theory

The third phase in the research methodology of Friedland and Napoleon is to organize information from the sources in an accessible, convenient way so it can be more readily analyzed, applied, added to, and adapted to present circumstances in a principled manner. The third phase has three concurrent parts: primer, synthesis, and legal theory, each with a particular aim.⁶⁵

The first part, the primer, aims to contextualize the stories analyzed in phase two. Since every story is part of a broader societal structure, contextualizing helps to place each story in the societal structure and intellectual life to which the story belongs. The second part, which the two legal scholars call the main part in this third phase, is the synthesis. The synthesis, aims to synthesize the information from the single stories, into one consistent, structured analytical framework. The synthesis makes use of an analytical framework containing questions such as: a) which legal processes and legal responses a story presents, b) which principles govern the individuals in the story, c) what kind of rights they have, and d) which underlying principles the story reflects. According to the two legal scholars, synthesizing helps identify specific details in the stories, and interconnect them. In addition, the synthesizing exercise enables Indigenous law to move beyond external accounts and develop internal Indigenous views on the law, in the same manner as internal perspectives are developed within national law, for instance in law schools.⁶⁶

The third part of the third phase, regards theorizing Indigenous law embedded in the analyzed sources.⁶⁷ Theories about Indigenous law, such as what law is, have been developed by different legal scholars in the field. For instance, Borrows in Canada’s Indigenous Constitution suggests that Indigenous laws hold modern relevance both for Indigenous communities themselves and for others, and can be developed through contemporary practices.⁶⁸

Napoleon has also theorized Indigenous law and writes:

Law is basically a collaborative process — something that groups of people do together. Law is never static, but rather, lives in each new context. In fact, one of the most important things to understand about any law is how it changes. Moreover, it has to change in order to be an effective part of governance — it has to be appropriate to new contexts and circumstances or it simply will not work. It also has to be appropriate to the experiences of the people or it will have no meaning or legitimacy.⁶⁹

3.1.4 Phase Four: Implementation, Application, and Critical Evaluation

By applying the research methodology and including the synthesis, the AJR Project was able to produce principles, law, processes, and procedures relevant to current human and social issues in the seven partner communities. The fourth phase of the methodology is about applying them. Friedland and Napoleon write that the final phase of their research methodology was not fully realized in the AJR Project at the time their article was written. However, some of the partner communities have started to develop ways to apply the research results to different kind of issues, such as child welfare and criminal court proceedings, and some have expressed a willingness to develop, for instance, their own governance institutions.⁷⁰

4.1 The four-phased Indigenous law research methodology

4.1.1 A specific research question

The first phase in Friedland’s and Napoleon’s four-phased research methodology is about finding a specific research question, in close collaboration with the Indigenous group whose laws the research is supposed to engage with.

To start a research project which aims to engage with Sámi law by identifying one or several specific research questions seems both possible and relevant. It also seems possible and relevant to identify the research question, or research questions, in close collaboration with the Sámi group whose laws the research project intends to engage with. Sámi legal scholars and researchers already collaborate with Sámi in studies on Sámi law, but mainly by using legal sociological methods.⁷² As far as I know, researchers have not arranged workshops with the Sámi in question, in the way the AJR Project did. Hence, researchers’ collaborations with Sámi groups, such as individual reindeer-herding districts or/and siidas, would be a new methodological element in research conducted on the field of Sámi law.

As mentioned in section 3, the AJR project had as a goal to find ways of applying Indigenous legal traditions to resolve harm and conflict between and within Indigenous groups. A similar goal would also be reasonable for research on Sámi law since harm also appears within Sámi society.⁷³ There is also however a great need for continuing research on disagreements of an external character, in other words situations where Sámi groups have disagreements with non-Sámi groups. As mentioned in the introductory section, Sámi reindeer husbandry faces challenges of an external character, such as disagreements with national politicians (and consequently lawmakers) about, for instance, predator control and industrial development projects on land areas traditionally used for Sámi reindeer husbandry. The Canadian material does not comment directly on the use of the methodology for research on issues of an external character. However, since the overall goal of the methodology is to, inter alia, develop political space for symmetrical, reciprocal, and respectful conversations between Indigenous law and national law, research on external issues should also be possible.

4.1.2 Case Analysis

The case analysis method in the second phase of Napoleon’s and Friedland’s research methodology, also seems appropriate for approaching Sámi sources. An application of the approach should be possible for professionals trained in civil-law, as well as individuals without such legal training. However, some training in the case analysis method would be beneficial before applying it. The questions asked in the case analysis may seem simple, but answering them requires a thorough review of the resource(s). It is however positive that the research methodology allows for other forms of analysis, if it turns out that the case analysis method, inspired by the common-law case analysis method, does not work for Sámi resources.

Sámi have always and continue to tell stories, and many of these stories have been written down.⁷⁴ Finding enough Sámi stories to analyze in a single community or in neighboring communities might, however, prove challenging. If this is the case, the methodology seems to have a solution insofar as it is open to using other types of resources than stories in order to engage with Indigenous law. In Sápmi, it might be possible to identify legal constructs through Sámi linguistic processes, documentation of the knowledge of elders and other community members, as well as traditional yoiks.⁷⁵ A yoik is a traditional form of Sámi song that expresses or reflects, for instance, a place, a reindeer-grazing area, or animals.⁷⁶

4.1.3 Creating a framework

In relation to Sámi law, the third phase, which consists of analyzing and expressing potential Sámi legal principles, also seems appropriate and feasible. The part about theorizing Indigenous law in the third phase of the research methodology seems especially desirable in relation to Sámi law. As mentioned in the introduction, research produced within Sámi legal scholarship mainly analyzes and describes what rights and duties Sámi have collectively and individually according to relevant national and international law. This is, of course, an important contribution to an understanding of the Sámi people’s legal situation, but there has been too little focus on theorizing questions about Sámi law. Theories about Sámi law should probably draw on legal theories developed by legal scholars in the field in Canada and other places in the world. Such theorizations could, for instance, address questions of an overall dimension, where the relationship between Sámi and Norwegian law is analyzed, as well as theories related to the Sámi group in question. These theories might also address possible Sámi legal principles and how they are articulated through the research methodology as a source of Sámi law.

4.1.4 Implementation, Application, and Critical Evaluation

As part two of this article shows, Sámi law enjoys recognition in Norway, mainly in the sense that Norwegian legal sources to a certain degree address and recognize Sámi law. However, in terms of having an impact, Sámi law is subordinate to Norwegian law. In practice, this means that the impact of Sámi law in Norway largely depends on how Norwegian legal sources, such as legislation and Supreme Court case law, address it. Most likely this would also apply to Sámi principles articulated through the research methodology.

Henriksen states that whether Indigenous law is recognized and taken into account by national authorities in policy decisions and in the application of national laws and regulations, depends on two main factors: Firstly, it depends on the level of general acceptance of legal pluralism within the national judicial system.⁷⁷

Research about the relationship between Norwegian law and Sámi law from the perspective of legal pluralism is largely absent. Recent legal scholarship in Norway argues that concepts of legal pluralism and polysentrism in Norwegian law refer to its expansion into new fields in Norwegian society, such as biotechnology and information technology, and through its Europeanization and internalization.⁷⁸ This indicates that research on Sámi law, from the perspective of legal pluralism, is also needed.

Whether Indigenous law is recognized and taken into account, secondly depends on the issue at hand and the Indigenous law that is sought to be made applicable. As Henriksen points out, the Norwegian state’s acceptance and application of Sámi law is in general selective and pragmatic, and largely determined by the overall interests of the state, in particular the economic interests of the majority population or certain sectors of the national community.⁷⁹ A 2016 report based on a study conducted among individual reindeer owners, shows that many Sámi reindeer owners have low confidence in central Norwegian public authorities. This lack of confidence is related to the loss of reindeer to predators and loss of land areas of importance to reindeer herding.⁸⁰ As already mentioned, these challenges include the loss of land due to the establishment of, for instance, infrastructure, windmill parks, military activities, power lines, leisure homes and related activities.⁸¹

A conventional assumption is, or at least has been, that Indigenous societies lack binding norms, or at least norms significant enough for the colonizing power to take into account.⁸² A central premise in Indigenous law research methodology is, however, that it is crucial to see Indigenous law as law. People might question why Sámi law should be seen as law in Norway. Research on the content of Sámi law would most likely provide a more detailed answer to this question, but it is already possible to suggest some reasons. First of all it is important to remember that Sámi law exists despite its lack of recognition in national law. The Sámi siida-system in reindeer herding is an example of this. This reindeer herding system has ancient origins and was practiced contrary to national law for a long time.⁸³ The Norwegian Reindeer Herding Act, which came into force 2007, first recognized the siida as a legal subject, with the reasoning that it is important that the act reflect the culture and traditions of reindeer husbandry. Secondly, seeing Sámi law as law would correspond with both article 8 in ILO Convention No. 169 and article 9 in the proposed Nordic Saami Convention that an expert group with representatives from the governments of Norway, Sweden and Finland, and the Saami parliaments of these countries, submitted in 2005.⁸⁴ The first section in the proposed article states: “The states shall show due respect for the Saami people’s conceptions of law, legal traditions and customs.” Thirdly, seeing Sámi law as law would also be an important contribution to fulfilling the Sámi people’s right to self-determination, a right established by article 2 in the UN Declaration of the Rights of the Indigenous, whether or not this is a question of an internal or external aspect of the right to self-determination. At this point it is difficult to establish the content of the two aspects of self-determination and suggestions for what they should contain vary considerably. However, one suggestion is that the right to self-determination contains a material right to exercise autonomy and self-governance arrangements within existing state borders, on a sliding scale, meaning that the more important an issue is for an Indigenous people’s culture, society, and way of life, the greater influence the people shall have concerning the issue.⁸⁵ Research on the content of Sámi law would most likely contribute necessary knowledge to the process of determining the content of Sámi self-determination.

4.2 Final remarks

As my reflections in the previous sections indicate, it seems both possible and appropriate to apply the Indigenous law research methodology developed by Friedland and Napoleon to studies of Sámi law, especially when adjusted to conditions in Sápmi. The research methodology is problem oriented and transparent,⁸⁶ and therefore has the potential to help Sámi and non-Sámi develop ways to live and solve problems together. The exercise of examining Sámi law as law will also require a shift in assumptions about what law is.⁸⁷ This has significant educational potential. In Canada, for instance, regular courses on Indigenous legal traditions are now offered at nine out of twelve English-speaking Canadian law schools.⁸⁸ Once Sámi law has been the subject of greater research such courses could also be offered in Norwegian law faculties.