This year marks the 270th anniversary of the Lapp Codicil of 1751 (Lappkodicillen), a document equally relevant to Sami cross-border relations in Sweden and Norway today as it was in 1751. On September 21, 1751, the Strömstad Treaty between Norway (Denmark) and Sweden (including Finland) was signed. Norway was then a part of Denmark and in an addendum the Lappkodicillen regulated the Sami reindeer herders cross-border movements between Sweden and Norway.
Why is it called the Sami Magna Carta?
The Sami people are indigenous to Sápmi, an area that spreads across the northern parts of Norway, Sweden, Finland, and the Kola Peninsula in Russia. Although not all Sami herd reindeer, much of the regulations surrounding Sami pertain to the reindeer, including the establishment of Sami administrative areas where groups of Sami herd their reindeer (samebyar in Swedish).
The Lappkodicillen regulates a number of issues related to the migration of Sami across the Swedish-Norwegian border. In 1751, many Sami used areas that spanned Norwegian as well as Swedish land to feed their reindeer. The addendum has 30 articles, specifying how and when the Sami (referred to as “Lapps” in the text) may cross the border, specifically recognizing their right to do so in accordance with established custom (sedvana). (Article 10.) It also provided that Sami should always be considered neutral parties in a time of war. (Articles 10 and 11.) Thus, the Lappkodicillen included specific written rights for the Sami people, a first at the time of its adoption.
However, the Lappkodicillen also limited the Sami people’s freedom and specifies that the Sami have to choose whether to become Swedish or Norwegian citizens, i.e., Swedish or Norwegian Lapps, who may only own tax lands on one side of the border. (Articles 2, 4.) Prior to 1751, Sami individuals or families could hold “Sami tax lands” (referred to as lappskatteland in Swedish and Bøxel-Land in Norwegian) in both Norway and Sweden at the same time. Each country required that the Sami pay tax for such holdings to the crown. However, as specified in article 2 of the Lappkodicillen, following the adoption of the Lappkodicillen, a Sami could only hold land in one country. Thus, the Sami had to, provided that their taxes were current in each country, pick which country to be a citizen of, and hold land in. (Article 4.)
The Lappkodicillen also set out special rules for cross-border marriages between Swedish and Norwegian Sami individuals, allowing men to change their nationality when their foreign wife had more reindeer or a tax land of her own in the other country. Otherwise, as a general rule, the wife would take the husband’s nationality. (Article 8.) This rule also prevented the Sami from, through marriage, acquiring larger tax areas that would span both countries. At the time, the Sami themselves allowed for gender-neutral inheritance rules, whereas the Swedish crown had different inheritance rules for cities and for rural communities.
Below are a number of select English translations from articles of the Lappkodicillen. (All translations by author.)
2 § No Sami person may henceforth hold [Swedish Sami tax lands or Norwegian tax lands] in more than one Kingdom, in order that all reason for commonality in subjects and land henceforth may be avoided.
4 § In case that any Sami currently hold, on both sides of the border, an old Swedish or Norwegian summer tax land, for which prior to 1742 tax has been paid to Sweden or Norway, he may have the freedom to choose which side’s subject he may henceforth want to be, provided he no winter tax land in either side holds. If he holds a winter tax land in either side, the Swedish or the Norwegian, he will belong to the side on which territory he such winter tax land holds.
8 § If a Swedish Sami marries a Norwegian Sami wife, who holds her own tax land in Norway, or has more reindeers than him, he has the freedom to, without obstacle or fee of the property, become a Norwegian Sami, provided that he report this to the Swedish [authorities] and proves such circumstances. The [Swedish authorities] must then provide him with a written permission to move and in the collection book note and from the Swedish tax him exclude. The same applies to a Norwegian Sami in similar circumstances. In other cases, the wife follows the husband.
10 § In case the Sami need access to both Kingdom’s lands, it shall in accordance with old custom be allowed to, in fall and spring, move their herds of Reindeer across the Border in to the other Kingdom, and henceforth in the same manner as the Country’s subjects, exempted at such places as below is specified, may use Land and beaches to support for their animals and themselves, where they shall be friendly welcomed, protected and aided, also during times of War, which onto the Sami regulation no changes should cause, [nor shall] the foreign Sami be exposed to plundering or any form of coercion or excessive force that the times of war bring, but always be as their own subjects considered and handled regardless of on which side they then appear as foreign.
11 § No Sami person who needs to move his animals over the border, may during times of war, any hostile action take. If he is found to have so done, he shall not be punished for acts of war, but be punished as if the action had been taken during times of peace.
Interpreting the Lappkodicillen
Whether the word “äga” (own or hold) means “to own” or “use” has been subject to interpretation over the years. While there is general agreement that during the 1800s the Swedish and Norwegian governments sought to limit the cross-border rights of the Sami, it has not been established conclusively whether at the time of signing in 1751 the Swedish and Norwegian crowns meant to recognize the use of the land as ownership similar to that of certain farmers or as simply a right to use the land (to fish, hunt, graze reindeer, set up tent etc.). Two approaches have been brought forth. Either that the tax lands were similar to certain farm land that was owned and inherited and taxed (see Kaisa Korpijaako-Labbas, Om samernas rättsliga ställning I Sverige-Finland), whereas the other view adopted by the government is that the tax was paid for the use of the land.(see e.g. SOU 2006:1 Samernas sedvanemarker..
Swedish courts have so far not recognized historic holdings of Sami tax lands as proof of ownership. However, the Swedish Supreme Court has held that in theory land used by Sami groups may create, through prolonged use, an ownership right to the land used. (Skattefjällsmålet (NJA 1981 s. 1).)
Importance of the Lappkodicillen today
The Lappkodicillen has never been repealed, and as specified in article 30, continues to be in force, as is the Strömstad Border Convention of 1751. However, several conventions between Sweden and Norway have been entered into over the years to further define the cross-border rules for the Sami reindeer herders, most recently in the Convention of 1972 between Sweden and Noway on reindeer grazing (Konventionen den 9 februari 1972 mellan Sverige och Norge om renbetning). When the 1972 Swedish-Norwegian Convention expired in 2005, the Lappkodicillen again became the main legal document to define the Sami reindeer herders’ rights to cross the Swedish-Norwegian border. A new convention was negotiated in 2009, but was never ratified by the Swedish Parliament. Reportedly, the negotiations for a new cross-border reindeer herding treaty between Norway and Sweden are ongoing.
The Norwegian Supreme Court as recently as this summer held that the Lappkodicillen governs the relationship between Norway and Swedish reindeer herders in the Saarivuoma sameby case, and that the rights established therein cannot be limited by the adoption of domestic Norwegian laws.
Where can I find the original text of the Lappkodicillen?
The Lappkodicillen is part of Sveriges Traktater med Främmande Magter, VIII, 2, pages 586ff.