The Complex Consequences of Indigenous Rights Litigation: Assessing the Impact of Legal Mobilization in the Girjas and Fosen Cases

How can indigenous groups alter social conflict dynamics by employing litigation strategies? In recent decades, groups of Sami – an indigenous people inhabiting Sápmi, a region stretching across the borders of Finland, Norway, Sweden and Finland – been involved in numerous legal disputes on rights to land and natural resources. This legal mobilization occurs in a context of enhanced cultural autonomy for the Sami people, ongoing reconciliation and transitional justice processes, and an increasing number of laws granting legal status and recognition. Existing literatures suggest the choices of actors who initiate litigation and their effects are complex, indeterminate, and contingent (M. McCann, 2008). For movements, litigation is typically a double-edged sword: It can remedy grievances, produce policy change, place issues on public agendas, and provide new forms of participation (Cichowski, 2006; M. W. McCann, 1994). Groups can use the threat of litigation as a bargaining tool to gain leverage in other arenas, and successful litigation can stimulate political activity by showing that a system seemingly impervious to change is actually alterable (Vanhala & Kinghan, 2018). Even losing a court case can be strategically useful, by revealing how biased the state is against a marginalized group (Langford et al., 2019). However, court litigation tends to benefit privileged actors (Galanter, 1974). Foregrounding legal action at the expense of wider movement goals may alienate grassroots and dissipate activism (Levitsky, 2006; Vanhala & Kinghan, 2018). Specifically, indigenous groups face the dilemma that any action within the state’s legal-judicial system can both challenge and legitimate the state’s claims to sovereign jurisdiction over their traditional lands. Moreover, adversarial legalism can be divisive and polarizing, diverting parties from more constructive ways of resolving conflicts (Kagan, 2001; Rosenberg, 2008). Litigation may also prompt backlashes and counter-mobilisation, as powerful adversaries seek to protect their interests. Lastly, even a landmark courtroom victory can deepen discord in local communities. This paper assesses how strategic litigation on indigenous rights may alter conflict dynamics by analysing the impact of two recent landmark supreme court cases won by Sami litigants in Norway and Sweden: The 2020 Girjas Case in Sweden and the 2021 Fosen Case in Norway. In the Girjas Case, Girjas Reindeer Herding Community sued the state to claim the right to administer hunting and fishing rights on its reindeer grazing lands. In the Fosen Case, reindeer herders claimed that underestimating the impact on reindeer herding, a traditional Sami livelihood, the licence for a major wind turbine park on the Fosen peninsula in mid-Norway entailed a violation of the right to culture safeguarded in ICCPR Article 27. Considering both states’ long history of oppressive policies toward the Sami people, indigenous activists, human rights groups and environmentalists hailed these judgments as epic victories. However, in neither case, the judgments decisively settled the underlying societal conflicts, which afterwards continued in different forms. Taking stock of these post-judgment dynamics and effects, the paper contributes to theorising the role of litigation strategies in indigenous communities’ struggles for justice.