The Politicization of Being Indigenous – the Question of Sáminess in the Era of Neoliberal Governance

The Sámi in Finland have a constitutionally safeguarded status as an Indig-enous people. One concrete realization of this status in Finland is cultural autonomy in the Sámi Homeland,33 provided for in the Act on the Sámi Par-liament of 1995 and implemented by the Sámi ParPar-liament.34 During the

dec-31 See e.g. YLE Sápmi 8 October 2014: Juvvá Lemet ja Hánno Heaiká leaba duđavaččat vuođđoláhkaváljagotti gullamii [Juvvá Lemet and Hánno Heaiká are satisfijied with the hearing of the Constitutional Law Committee] <http://yle.fiji/uutiset/juvva_lemet_ja_han-no_heaika_leaba_duavaccat_vuoolahkavaljagotti_gullamii/7515677> accessed 16 Novem-ber 2015.

32 See Yle Sápmi 18 July 2014: Ođđa rap-lohpádus Nikke Ankara lea sápmelaš [The new rap talent Nikke Ankara is a Sámi] <http://yle.fiji/uutiset/oa_rap-lohpadus_nikke_ankara_lea_

sapmelas/7364149> accessed 16 November 2015.

33 The Sámi Homeland of Finland is situated in Northern Finland and in the area of four Finnish municipalities.

34 Finnish Constitution/2/paragraph 17 <http://www.fijinlex.fiji/fiji/laki/ajantasa/1999/19990731>, accessed 16 November 2015; The Act on the Sámi Parliament/1995/974/paragraph 25 <htt-ps://www.fijinlex.fiji/fiji/laki/ajantasa/1995/19950974> accessed 16 November 2015.

ades after the Sámi in Finland acquired the status of an Indigenous people recognized by the state as well as established their own decision-making body for managing their autonomy, the issue of defijinition – how ‘Sámi’ and thus members of the Indigenous people should be defijined – has become strongly politicized.

Before their status was laid down in the Finnish Constitution and the Sámi Parliament was established, Sámi afffairs were managed by the Sámi Delegation, set up in 1973. The Decree on the Sámi Delegation contained a defijinition of a Sámi which has basically not been questioned by any parties whereby a Sámi means a person one of whose parents or grandparents has learned Sámi as his or her fijirst language and any of that person’s descendants. A person also had to feel that he or she was a Sámi, as no one could be considered a Sámi against his or her will.35 This defijinition emphasized that a person defijined as a Sámi had to have a close connection to Sámi-speaking society over a period of three generations. A Sámi did not have to know the Sámi language, one reason being that after World War II the schools, among other institutions, alienated many Sámi from their language. In efffect, the defijinition involved kinship-based eth-nic recognition: in practice, families were considered Sámi if Sámi had been a living, spoken language for them at least up until the post-war period.36

In the 1995 Act on the Sámi Parliament, an addition was made to the Del-egation’s defijinition of a Sámi whereby a person was also considered a Sámi

“if he is a descendent of a person who has been entered in a land, taxation or population register as a mountain, forest or fijishing Lapp”. The aim was to make it possible to identify who was a Sámi also on the basis of the 1875 or later land and taxation records.37 The purpose of the addition was to reinforce the con-nection of the Sámi to the land through the letter of the law. The records from 1875 and thereafter were seen as guaranteeing that the addition would apply principally to the contemporary ethnic Sámi, not contemporary ethnic Finns.

However, the Finnish Constitutional Law Committee dropped the date (1875), as its inclusion would have required that a decree be issued. The Sámi Delega-tion was not asked for its posiDelega-tion on the changed defijiniDelega-tion. The end result of the process was that the defijinition based on historical documents had no

35 Committee Report 1973:46, 6.

36 See e.g. V.-P. Lehtola, 2012, 434; S. Valkonen, 2009, 237.

37 See V.-P. Lehtola, Saamelaisten parlamentti. Suomen saamelaisvaltuuskunta 1973-1995 ja Saamelaiskäräjät 1996-2003 [The Sámi Parliament. The Finnish Sámi Delegation 1973-1995 and The Sámi Parliament 1996-2003] (Saamelaiskäräjät 2005).

temporal limit.38 This then meant that the language-based defijinition covered three generations but the defijinition based on historical records went back per-haps hundreds of years: anyone who could fijind even one ancestor who was a documented resident of a Lapp village, perhaps centuries ago, could insist that he or she be considered a member of the Sámi people and demand the legal and political rights accorded the Sámi, such as the right to vote and to stand for election to the Sámi Parliament.

The Sámi communities in general do not consider this so-called Lapp cri-terion to be a legitimate one for proving that one is a Sámi, as it is not based on the Sámi’s conception of the membership of their communities.39 Nor has the Sámi Parliament, the people’s representative body, approved the addition.

In fact, from its establishment, the Sámi Parliament’s policies have stressed the self-determination of the Sámi and the defijinition of a Sámi as based on the language criterion which mostly is feasible with the kinship -based ethnic recognition.40

From the outset, the Sámi Parliament has proceeded from the principle that the Sámi, as an Indigenous people, must be allowed to defijine “who we are” on the basis of Sámi traditions and practices.41 The right of an Indigenous people to defijine itself is safeguarded in article 33 of the UN Declaration on the Rights of Indigenous Peoples:

1. Indigenous peoples have the right to determine their own identity or membership in accordance with their customs and traditions. This does not impair the right of indigenous individuals to obtain citizenship of the States in which they live.

38 See L. Heinämäki et al., Saamelaisten oikeuksien toteutuminen: kansainvälinen oikeusver-taileva tutkimus [Actualizing Sámi Rights: International Comparative Research]. Publi-cations of the Government´s analysis, assessment and research activities 4/2017 (Prime Minister´s Offfijice, 25.1.2017), 187-194.

39 See e.g. L. Heinämäki et al., 2017, 176-223; V.-P. Lehtola, Suomen saamelaiskiista. Sortaako Suomi alkuperäiskansaansa? [The Sámi Conflict of Finland. Does Finland Oppress its In-digenous People?] (Into-Kustannus 2015).

40 See L. Heinämäki et al., 2017, 86-216; S. Valkonen, 2009, 155-172; V.-P. Lehtola, 2015, 214-215.

41 See e.g. Saamelaiskäräjät [The Sámi Parliament], Saamelaiskäräjien lausunto perus-tuslakivaliokunnan pykälämuutosehdotuksista saamelaiskäräjistä annetun lain muut-tamiseen [Statement on the Changes in the Act on the Sámi Parliament] 10.12.2014 Dnro:

565/D.a.4/2014. <http://www.samediggi.fiji/index.php?option=com_docmanandtask=cat_

viewandgid=259andItemid=165> accessed 3 February 2016; L. Heinämäki et al., 2017, 176-223.

2. Indigenous peoples have the right to determine the structures and to se-lect the membership of their institutions in accordance with their own procedures.42

Finland intended to amend the Act on the Sámi Parliament in 2015, as the law was considered to be outdated and inefffective in many particulars. A key point to be reformed was the defijinition of a Sámi. The bill, drafted by a working group established by the Ministry of Justice that comprised representatives of the Sámi Parliament, the Finnish government and other experts, put forward kinship and socialization into Sámi culture (to complete the Lapp criterion) as the key criteria in addition to language.43 Expressly incorporating kinship into the defijinition is a sign that kinship-based ethnic recognition is not only a traditional practice, but also one that is very much present today; it is a living means for constituting the Sámi community and one that the people wish to see continue in the future.

The bill, and particularly the defijinition it contained, met with extensive op-position by many diffferent, mostly non-Sámi parties.44 The fear was that legal Sámi subjectivity defijined by the Sámi kinship would lead to arbitrary deci-sions as to who is a Sámi and who is not and exclusion at the hands of the dominant Sámi families. The reference to kinship in the defijinition in the Act was considered too vague and unclear. In fact, doubts were expressed as to the existence of the practice of kinship-based recognition or it was deemed to be nothing but a political tool by which the Sámi elite could wield exclusionary power.45 It was the Finnish Members of Parliament from Lapland in particular who found allowing the Sámi to exercise self-determination in the question of who is a Sámi to be very problematic. They considered – and this view has persisted in the debate during recent decades – that the Sámi way to defijine who the Sámi are runs contrary to the defijinitions of “Indigenous people” in

42 UNDRIP 2007, Article 33 <http://www.un.org/esa/socdev/unpfijii/documents/DRIPS_

en.pdf>, accessed 8 January 2016.

43 Ministry of Justice, Saamelaiskäräjälakityöryhmän mietintö [Government bill] 55/2013

<http://www.oikeusministerio.fiji/fiji/index/julkaisut/julkaisuarkisto/1382513081296/Files/

OMML_55_2013_MIETINTO_196_s.pdf> accessed 23 November 2015.

44 About the political mobilization and complex debate related to defijining Sáminess in Fin-land see V.-P. Lehtola, 2015; J. Valkonen, S. Valkonen and T. Koivurova, ‘Groupism and the Politics of Indigeneity: A Case Study on the Sámi Debate in Finland’ [2016] Ethnicities June 19, 2016.

45 See V.-P. Lehtola, 2015.

international law, particularly that found in ILO Convention No. 169.46 Their opposition ultimately led to the bill being rejected in the Finnish Parliament and to the previous defijinition of Sámi, the one strongly opposed by the Sámi Parliament, remaining in force.47

Lenzerini writes about the philosophical rationale for preserving the intan-gible cultural heritage, which has a fijirm basis in the presence of self-identifiji-cation by the group concerned as one of the heritage’s constitutive elements.

This difffers radically from the defijinition of material cultural heritage, which is based on “an objective evaluation of its outstanding worth from the standpoint of a presumed universally valid appreciation of value”.48 The nature of intan-gible cultural heritage, by contrast, “rests in the self-recognition of it as part of the cultural heritage of the communities, groups, and (if the case) individu-als concerned”.49 According to Lenzerini, “the presence of self-identifijication among its constitutive elements makes intangible cultural heritage valuable in light of the subjective perspective of its creators and bearers, who recognize the heritage concerned as an essential part of their idiosyncratic cultural inherit-ance, even though it may appear absolutely worthless to external observers.”50 A second inherent characteristic of the intangible cultural heritage cited by Lenzerini, one also closely linked to self-identifijication, is “its deep connection with the identity and cultural distinctiveness of its creators and bearers”.51 He notes that the connection is well evidenced by the defijinition in Article 2 of the Convention for the Safeguarding of the Intangible Cultural Heritage, which describes the intangible cultural heritage as an entity that gives communities and groups a sense of identity and continuity. Lenzerini goes on to conclude that this is probably the principal value of the intangible cultural heritage.52

Clearly, the system of kinship-based ethnic recognition fulfijils the criteria of self-identifijication by the community and deep connection with the identity and cultural distinctiveness of its creators and bearers. The system is a living reality that has adapted to the historical and social evolution of the Sámi but without losing its character as an element of collective customary law in

de-46 See V.-P. Lehtola 2015, 179-233; The ILO Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries (1989), art. 1. <http://www.ilo.org/dyn/normlex/

en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C169.> accessed 24 March 2015.

47 V.-P. Lehtola, 2015, 179-223.

48 F. Lenzerini, 2011, 108.

49 Ibid.

50 Ibid.

51 Ibid.

52 Ibid., 109.

fijining the boundaries of the community and the subjects belonging to that community. Defijining the boundaries of a community is a collective practice which evolves as the community does; the practice lives and is understandable within the particular culture and community.

The reform of the Sámi Parliament and particularly the (Finnish) debate on the defijinition of Sámi revealed clearly that a culture’s internal, immaterial and intangible practices and mechanisms, ones based on the culture’s internal dynamic and its institutions, often go unacknowledged or there is no interest in acknowledging them in the mainstream society. Yet, for Sámi culture it is precisely such practices, however hard to defijine, that are crucial if the culture is to survive. It is these practices that sustain the core of the culture and sense of community; they are essential in defijining and maintaining membership in, the interrelationships within and the boundaries of the community. In other words, the practices are crucial for the ontological foundation of the commu-nity, whereby the system of kinship-based recognition of ethnicity is a consti-tutive element of Sámi society.

Why is it then that accepting kinship-based identifijication with the commu-nity as a part of Sámi autonomy – and thus as a form of the Sámi cultural herit-age, which enjoys statutory protection – has been so difffijicult and prompted such resistance? We suggest that one central aspect of the answer lies in the limitations of the prevailing political institutions and ideologies; they seem to be infijiltrated by the pervasive influence of neoliberal governance, making them unable to understand and acknowledge a conception of community and of membership in a community that is predicated on a diffferent type (non-Western) of ontology.53

Neoliberalism is a global economic, political and social phenomenon and political rationality that emphasizes and is based on deregulation, privatiza-tion, individualization and transformation of the state-citizen relationship. It entails “practices, knowledge, and ways of inhabiting the world that empha-size the market, individual rationality, and the responsibility of entrepreneuri-al subjects”.54 Neoliberentrepreneuri-alism entrepreneuri-also “shapes the constitution of identity and

com-53 About neoliberalism and Indigenous peoples, see e.g. I. Altamirano-Jiménez, 2013; F. E.

McCormack, ‘Levels of indigeneity: the Maori and neoliberalism’ [2011] Journal of the Royal Anthropological Institute, 17(2), 281-300; M. Mora ‘The Politics of Justice: Zapatista Autonomy at the Margins of the Neoliberal Mexican State’ [2015] Latin American and Car-ibbean Ethnic Studies Vol. 10:1, 87-106.

54 C. R. Hale, ‘Does Multiculturalism Menace? Governance, Cultural Rights, and the Poli-tics of Identity in Guatemala’ [2002] Journal of Latin American Studies 34 (3), 136-46; I.

Altamirano-Jiménez, 2013, 70.

modifijication of nature”55 and thus has “cultural, social and political efffects that exceed its surface”.56

Embracing the defijinitions of “Indigenous” in international law, the Finnish debate on the defijinition of Sámi places considerable emphasis on the rights and identity of the individual. The salient questions in discussing and imple-menting politics in Finland are who at the individual level are Indigenous, who are entitled to indigenous rights and how “indigeneity” is to be defijined.

I. Altamirano-Jiménez writes that “the adoption of global discourses of indi-geneity at the local level, although politically empowering, raises a number of extremely political questions. Who defijines ‘Indigenous’ and what is ‘authentic’

or ‘traditional’?”57 The emergence of these questions, as has happened in the Sámi context in Finland, illustrates how the global discourses and develop-ments related to Indigenous peoples’ rights and political position, while be-ing Indigenous resistance against a colonial world order and the legitimacy of state powers, are at the same time constrained by those very power struc-tures.58 They are part of the complex legacy of colonialism, in which the emer-gence of neoliberal rationalities is producing new forms of governance that rest on “old”, existing injustices and unequal structures.

Although Indigenous peoples themselves are shaping and producing glob-al articulations of indigeneity, “the sites involved create a complex fijield in which Indigenous peoples negotiate a balance between local needs and global wants.”59 In Finland, the discussions among some established researchers and certain politicians on the defijinition of Sámi have foregrounded the rights and the identity of the individual as the basis of indigeneity; being a member of an Indigenous people is seen as a right of an individual and, in keeping with the reading of international Indigenous law, it becomes necessary to “fijind” the

in-55 I. Altamirano-Jiménez, 2013, 70; N. Laurie, R. Andolina and S. Radclifffe, ‘The Excluded

“Indigenous”? The Implications of Multi-ethnic Policies for water Reform in Bolivia’, in R.

Sieder (ed.), Multiculturalism in Latin America: Indigenous Rights, Diversity and Democ-racy (Palgrave MacMillan 2002), 252-76.

56 W. Brown, Politics Out of History (Princeton University Press 2001); I. Altamirano-Jiménez, 2013, 70.

57 I. Altamirano-Jiménez, 2013, 7.

58 Cf. J. Cliffford, ‘Indigenous Articulations’ [2001] Contemporary Pacifijic 13 (2), 472; Altamira-no-Jiménez 2013, 4; see also C. Sturm, Becoming Indian: The Struggle over Cherokee Identity in the Twenty-fijirst Century (SAR Press 2010); A. Simpson, Mohawk Interruptus: Political Life Across the Borders of Settler States (Duke University Press 2014).

59 I. Altamirano-Jiménez 2013, 4.

dividuals who can belong to a given Indigenous people.60 The question “Who is a Sámi?” has also become a question of an individual’s identity, meaning that the right to membership in an Indigenous people is considered to be bound up with an individual’s identity as he or she personally experiences it.61 This line of reasoning is at odds with Sámi conceptions of communality and the Sámi custom of defijining the group based on group identifijication. After all, it is an interpretation that originates in the political rationalities of modern societies, which places the rights of the individual at the core of society. What is more, it hampers effforts to secure political acceptance of the Sámi ontology as the foundation of a political community.

The decades-long deliberation of the defijinition of Sámi and, in particular, the discussions in 2015 surrounding the amendment of the Act on the Sámi Parliament and the ratifijication of the ILO Convention no. 169 reflect, among other things, the power relations and asymmetrical power structures that im-pact effforts to defijine “Indigenous cultural heritage” and by extension an “In-digenous people”; those processes also reveal the deeply political condition of Indigenous self-determination within the mainstream society. Although kinship-based ethnic recognition satisfijies both the community’s own criterion for self-identifijication and the elements of deep identity and cultural unique-ness defijined by its creators and bearers, it is difffijicult to accurately verify and document in a manner that would enable political actors from outside Sámi society to understand it.