1. Dream: Right of Indigenous Peoples to Own Law. Legal Pluralism Put on The Table Dawid Bunikowski Postdoc., Doctor of Laws UEF Law School

2. Structure theses (3) problems concerning theses (many) theses justification – by legal pluralism, by anthropology contemporary examples and the model for the Nordic region conclusions

3. Some introduction and instead of a longer one Who am I? What do I? The context of this conf: the right of indigenous peoples to own law as a part of their social welfare, good individual (and social) well-being and quality of life? Maybe…. Yes, it would be also a good approach indeed.

4. and some citations: The Lapp people are childlike people in more than one respect. As people, they have the child’s impulsive, naïve, undeveloped point of view, and it is the goal of Norwegianization that they are brought to the maturity of man, if this is at all possible, This is an immense and lasting goal to work toward (the learned Rector Andreas Gjølme in Sør-Varange, 1886); The Norwegianization of the Samis was religiously motivated (Bente Persen, a cultural historian from Norway); I felt that I was being treated as a dirt. We were dirty people (Ole Henrik Magga, a famous leader of the Sami from Norway, a professor of language).

5. Theses 1. the indigenous people should have the right to own autonomous law based on culture, social morality, tradition, as it is a natural and historical right; 2. it should be the so called personal law (personally binding) which “follow” the indigenous people wherever they are (the law well known in the early Medieval times); 3. all the state regulations concerning the indigenous people as the citizens should be personally limited in the regions where they live.

6. Problems concerning the implementation of the theses changes of traditional and classical paradigms and concepts of criminal responsibility and civil liability in the states change the principles of constitutional law and the idea of sovereignty in practice or in fact creating free small states/communities of the indigenous people concerns the most fundamental constitutional principles (equality, pacta sunt servanda, property rights) a room for considering a problem of the so called collision rules (what to do when people from different cultures/legal orders meet each other in one country, how to resolve legal problems, requires some additional transnational regulations or international treaties to guarantee the legal status of the indigenous people

7. Justification by legal pluralism. Theses no. 1 and 2. Legal pluralism. Theory. Medieval social orders as a pattern of legal pluralistic systems. Customary law(s) and indigenous peoples. Legal pluralism for Sami in Scandinavia and Finland by the 19 th century – Ahren’s narrative.

8. Legal pluralism A phenomenon of legal pluralism (well described in the worldwide literature by Griffiths 1986, Tamanaha 1993, de Souza 1987, von Benda- Beckmann 2002, or Bunikowski&Dobrzeniecki 2009) A situation in which there are at least two normative systems in the same social sphere, and there is no a rule of recognition (in Hart’s sense) which says to us what a rule is more important and what a rule to choose and apply

9. Tensions of laws Local – state Customary – state Religious – state Moral – state Professional – state State – international

10. Legal pluralism - problems Sometimes you must follow loyalty or you are influenced by fear or business or national interests Rhodesia in 1965, what a rule to follow There was no the rule of recognition, all rules are legitimate!!! Many kinds of legal pluralism (weak, strong etc.) In the EU there is a room for legal pluralism, not multicentrism (the supranational order and domestic orders).

11. Justification by anthropological approach. Theses no. 1 and 2. Ethos as a basis of law. Malinowski’s theory. Values that are universal in humanity and peculiar in tribes. Cultural ecology for the sake of indigenous rights in the North. Dillon’s theory. Psychological theory of law by Petrażycki.

12. Ethos all societies are based on the ethos law is always based on the ethos of society, and the ethos not only includes morality but also religion itself, religious tradition and customs, completely deliberately or quite nescient the ethos is a wider concept than morality or religion, or tradition it is about how to behave in one society, how to think rightly, what is acceptable and what is wrong concerns the culture of society the ethos made by the so called civilised world (e.g. in the Protestant or Catholic countries) is not the ethos of the indigenous people Justification by a historical Justice is also an important part of this argument on ethos: compensation for damages, going back to the origins instead of living in the nation state

13. Justification of thesis no. 3. Why to limit state law in indigenous areas? Question: Is it moral to say that some rights of some citizens should be limited or reduced or changed? Is it correct? Solution: The change should mean more rights in terms of more political indigenous rights and more political indigenous autonomy, and less state rights concerning duties of indigenous peoples as citizens.

14. Contemporary examples and problems of indigenous groups Situation of Sami in the Nordic region nowadays. Nordic Sami Convention? Situation of the Canadian First Nations in Canada. Nisga’a case. Svensson’s narrative. Model of proposed legal pluralism in the Nordic region.

15. The Model Non-indigenous people - state law (and international law as a part of the domestic order) – state courts and jurisdiction Indigenous people – indigenous/customary laws – indigenous courts and jurisdiction Conflicts between the indigenous and the non-indigenous – crown’s court

16. The status of the indigenous would be double and complementary: State status – a formal citizenship, but with an empty content if does not wish by a declaration to have such rights and duties Indigenous status – traditional and customary rights and duties flowing from the membership or belonging to a given indigenous community/group.

17. The social spheres for the indigenous jurisdiction Education, Traditional way of life (like a nomadic way), Natural resources management (land rights, hunting grounds, fishing waters), Property rights (private and public rights), Status of indigenous peoples (rights and duties), Internal security, Public infrastructure, Courts, Public administration and external affairs to a greater extent, Own welfare state (?),

18. And they sphere where both can cooperate are like these: External security, Fiscal policy, Providing common goods like water, energy, electricity, bigger infrastructure, health system, Foreign affairs, formally.

19. Conclusions The better way is to recognize the idea of legal pluralism and the indigenous customary law, and it is more responsible to give a chance to the indigenous people to rule and govern on their own, on behalf of own community, on the ground of own law and for the sake of the indigenous people. It concerns a wider political autonomy or even independence. We can go back to some ideas but we will never come back there. The world is still changing (globalisation, new technologies, new styles of life, also of indigenous peoples).

20. continuing Legal pluralism is the best form of a response or a mean to retain a diversity inside contemporary societies and to guarantee a diversity of laws within a given society and around the world as well. (The model proposed here is the example of thinking in categories of legal pluralism.) This is so obvious in context of indigenous peoples and in the light of the depreciation of their cultures as difficult to manage to do at the same moment. However, his dream, one day, might come true in the Nordic region also.

21. END Thank you for your attention!