The Politization of History and the Negev Bedouin Land Claims: A Review Essay on
Indigenous (In)justice
Author(s): Seth J. Frantzman
Source: Israel Studies , Vol. 19, No. 1 (Spring 2014), pp. 48-74
Published by: Indiana University Press
Stable URL: https://www.jstor.org/stable/10.2979/israelstudies.19.1.48
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48
Seth J. Frantzman
The Politization of History and
the Negev Bedouin Land Claims:
A Review Essay on
Indigenous (In)justice
ABSTRACT
In recent years the study of the Negev Bedouin land claims has become a
specialty of a small group of dedicated scholars. The aim of their research is
to provide evidence that supports the notion that the Bedouin are an indigenous
population whose rights were confirmed in the British and Mandatory
period and therefore should be recognized by the State of Israel. The
edited volume Indigenous (In)justice presents a case study of how research on
this issue has selectively martialed historical sources to aid a contemporary
political-geographical issue affecting a minority community.
Review Essay
Indigenous (In)justice:
Human Rights Law and Bedouin Arabs in the Naqab/Negev
Edited by Ahmad Amara, Ismael Abu-Saad, and Oren Yiftachel
Harvard University Press (Cambridge, MA, 2013)
Indigenous (In)justice is an example of what should be called
“post academics” where the agenda dictates the research, and any evidence
that is contrary is ignored.1 In contrast to the new historians, who relied
on primary sources, this research on the Bedouin reflects a post-historical
study where sources, primarily secondary, are mustered deceptively.2 The
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A Review Essay on Indigenous (In)justice • 49
research presented in an edited volume, such as this, includes only authors
who agree, rather than a range of conclusions and perspectives.
What defines this post-scholarship is that many of the scholars are
non-specialists and they often don’t use traditional methods of inquiry.
For instance, in this volume, Ismael Abu-Saad is a Professor of Education
writing on “Social-political upheaval” and Noa Kram is a PhD candidate in
Social and Cultural Anthropology who studies in a program that “combines
critical social thought with advocacy, while prioritizing education for social
justice”,3 but her article is on “legal struggles for land ownership” and is
passed off as a history paper. The notion of advocacy in pursuit of social
justice implies that the ends dictate the means.4
Examining this book as a case study provides us with several important
results. First, it presents us with a window into how research was warped in
order to serve a specific cause. Second, it provides an explanation of how
the situation of the Negev Bedouin has been removed from its context and
cast as an international issue, to cater to a narrow agenda relating to Israel,
which harms and demeans the rights of indigenous people worldwide.
THE BEDOUIN AND THE NEGEV:
DISPARATE NARRATIVES AND A RESEARCH AGENDA
The Negev is Israel’s largest geographic region (12m dunams), almost 60%
of the country. Less than half of the estimated 160,000 Negev Bedouin5
reside in “unrecognized” settlements, most of which are loose clusters of
farmsteads that stretch over 800,000 dunams of land.6
The debate about Bedouin land rights in the Negev can best be summed
up with a 2000 Ariel Sharon quote from Karkah; “900,000 dunams of
government land are not in our hands, but in the hands of the Bedouin
population . . . the Bedouins are grabbing new territory. They are gnawing
away at the country’s land reserves.”7 In contrast, Amara and Miller explain,
“The process of Judaization and concomitant Bedouin dispossession has
been ongoing since the inception of the state.”8
This juxtaposition of the state and the Bedouin is shoe-horned into a
formulaic where the “indigenous” Bedouin seek rights to “their lands” from
the “colonial settler state” in comparison either to Apartheid South Africa9
or Australia.10 Israel is not compared to her neighbors, even though they
share Bedouin tribes and a similar history of colonial rule; instead research
on the Negev Bedouin presents them as living in a vacuum.11
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50  •  israel studies, volume 19 number 1
Indigenous (In)justice is a project of the Human Rights Clinic at Harvard
Law School.12 In their introduction, Ismael Abu-Saad and Ahmad
Amara lay out the pattern that the book will follow. “Since the British and
Israelis have developed a strong legalistic culture in Palestine, the law is
an essential prism for understanding the Bedouin question.”13 They note
that a legal continuum links the present legal issues in the Negev with the
Ottoman Land Code (OLC) of 1858.
RE-DEFINING INDIGENOUS RIGHTS
TO SUIT THE BEDOUIN
Central to the thesis of this volume is the notion that “The Bedouin share
many common characteristics with indigenous groups in other countries”
and “are part of the broader indigenous Arab people of Palestine.”14 Many
of the authors accept this definition without elaborating.15 Rudolfo Stavenhagen
and Ahmad Amara16 quote Erica Irene-Daes, a former Special Rapporteur,
on the definition of indigenous she provided in 1996: “Priority in
time with respect to the occupation and use of a specific territory . . . the
voluntary perpetuation of cultural distinctiveness . . . self-identification as
well as recognition by other groups or by state authorities . . . an experience
of subjugation, marginalization, dispossession, exclusion or discrimination.”17
This is a convenient and selective quote, especially in regard to
time. The reference that notes that indigenous people merely should have
a “priority in time” misses the fully developed Daes definition. In 2001
she wrote: “In many countries, particularly those of the British Commonwealth,
exclusive use and occupancy of land from time immemorial gives
rise to aboriginal title.”18 The widely recognized idea of indigenous peoples
had always included the time element as a key concept. The World Council
of Indigenous Peoples notes “The term indigenous people refers to people
living in countries which have a population composed of differing ethnic
or racial groups who are descendants of the earliest populations living in
the area.”19 The removal of the time element by the authors is due to the
fact that they admit that the Bedouin have only “lived in Palestine since at
least the fifth century.”20 There is no evidence that the tribes existent in the
fifth century are the same ones there today; the prevailing research shows
that subsequent waves of Bedouin moved into the Negev, the last being the
Tiyaha and Tarabin tribes in 1799 with Napoleon’s invasion.21
Stavenhagen and Amara claim that “The Bedouins of the Naqab have
grown increasingly aware of their own ‘indigeneity’ which has shifted
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A Review Essay on Indigenous (In)justice • 51
perceptions of their land and territoriality.”22 Yet the authors provide no
evidence, from interviews with actual Bedouin, that there is increasing selfidentification
as an “indigenous people”. Presenting self-identification as a
major parameter23 for who constitutes an indigenous people, as well as the
notion of them being marginalized, implies that if the Native Americans
simply stopped identifying as “indigenous” and founded their own state,
that they would suddenly stop being indigenous. This makes indigenousness
more along the lines of a form of nationalism in line with an “imagined
community”, than a legal term.
The most powerful chapter in this book should have been Rudolfo
Stavenhagen’s, co-authored by Ahmad Amara, since Stavenhagen was a
former UN Special Rapporteur on the rights of indigenous peoples. They
begin by noting that “In many parts of the world, small societies of herders
and pastoralists are characterized as indigenous peoples . . . ‘Indigenous’
should be applied to these groups in light of their structurally subordinate
position to other dominant groups.”24 This would seem to favor any group
that is more mobile.25 The authors change the notion of indigenous to fit
the Bedouin; “Indigenous status is dependent not on length of time but
rather on occupation and establishment of complete society prior to the
current regime.”26 What a “complete society” means is unclear.
Stavenhagen’s decision to change the definition of indigenous people
to fit the Bedouin represents a deep harm to the millions of other indigenous
people in the world. Broadening the definition so that it places
a primacy on “self-definition” makes it a tool in political struggles and
demeans its meaning for those marginalized groups that actually do face a
struggle for survival.
The editors also claim that the “Bedouins in Arab states do not view
the regime as colonial or foreign to them, and hence they do not utilize
claims of indigeneity.”27 Indigenous claims are “utilized”, they do not exist
de facto. Yet the general accepted notions of indigenous people do not view
the term “indigenous” as only a tool in a struggle against the state, but a
status of a group of people who share certain elements. It follows that if
the Negev were, in some future scenario, turned over to Egypt the Bedouin
land claims would vanish. This makes the claims transitory, only existing
because Israel exists.28
It is worth noting that, compared to other indigenous groups in the
world, such as the Navajo, whose population has increased from 134,000 in
1975 to 286,000 in 2010,29 the Bedouin in the Negev have increased from
an estimated 14,000 people in 1949 to 170,000 today. Stavenhagen maintains
that “For most indigenous people, survival is the major challenge.”30
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52  •  israel studies, volume 19 number 1
Far from survival being a major challenge, in fact a rapidly expanding
population is the major challenge for the Negev Bedouin.
THE BEDOUIN AS SETTLED CULTIVATOR
Abu-Saad and Craemer argue that “Prior to 1948, 90% of the Bedouin
population in the Naqab lived as subsistence farmers.”31 According to the
authors, over 2 million dunams, of 12 million in the Negev, were cultivated.
“The Bedouins of the region struggle to retain possession of-much less cultivate—386,000
dunams of land [in 2012].”32 Kram asserts that “By 1948,
the majority of the Naqab Bedouins were sedenterized . . . they cultivated
most of the land in the Naqab that was suitable.”33 No source is given for
this claim. Stavenhagen goes further: “By the middle of the twentieth century,
an estimated 95% of the Naqab Bedouins were settled agriculturalists
. . . many of their settlements became villages well before the twentieth
century.”34 This extraordinary claim has no source. Creating an image of
settled cultivators35 seeks to redress the notion of Bedouin as nomads, even
though their indigeneity is predicated on them being pastoralists.
The notion of settled Bedouin agriculturalists is clearly contradicted
by the 1947 UNSCOP report which notes “The vast area of the Beersheba
district, which is arid, semi-desert, supporting at present a very small settled
population and about 90,000 Bedouin nomads.”36 The basis for the 2m
dunams statistic is Eliahu Epstein’s “Area of Cultivatable Land in Palestine”
(1936) published by the Jewish Agency, in which he claimed the oddly
precise number of 2,109,234 dunams being under cultivation. Epstein, as a
Jewish Agency employee, had an interest in showing that the Negev could
be cultivated by Jews. Yet when the British published their annual Survey of
Palestine in 1937 they included a map titled “Cultivation zones” where they
labeled the Beersheba sub-district “cultivation unsurveyed”.37
A subsequent British survey of 1946 claimed that 1.64 million dunams
was “cultivatable”, not necessarily cultivated.38 The Village Statistics of 1945
stated 1,934,849 dunams were cultivated by “Arabs”, but did not note how
many of them were cultivated by Bedouin as opposed to Arabs who had
moved to the sub-district.39 Mandate reports indicate Arabs cultivated
seven million dunams in Palestine in 194540 meaning, if the Bedouin “cultivated”
two million dunams, the Negev was the most intensively cultivated
per capita region in Palestine (20:1 in the Negev versus 5:1 in the rest), which
seems dubious.
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A Review Essay on Indigenous (In)justice • 53
The claim that most of the Bedouin cultivated the Negev and were
settled in farming communities is contradicted by every primary source
available to us. The best source is the British Aerial Survey of Palestine.
Between January and April of 1945 the British photographed the central and
northern Negev as part of a survey of the entire country. H. Muhsam, head
of the Department of Statistics in the Mandate notes “Every individual tent
or hut, or small group of tents and/or huts discovered on a photograph
was plotted on the corresponding spot of a suitable map of the 1:100,000
Palestine series.”41 An analysis of the map the British produced shows that
the British found 9,080 tents,42 hardly indicative of a population that was
“settled”. There were no Bedouin settlements indicated on Mandatory
maps. Muhsam did count isolated dwellings, “In addition 1,600 Bedouin
families were living in huts and houses.” Thus around 6,400 people were
living in houses, about 10% of the Bedouin population, not the 95% that
Stavenhagen claims.
If unsubstantiated claims of widespread cultivation are not enough
to convince people of Bedouin rights, biblical sources are also martialed.
Duane Champagne, a professor of sociology at UCLA who is an expert on
Native Americans, argues that the Bedouin have occupied the Negev “for
hundreds, if not thousands of years” and that “indeed, there are biblical
references to Abraham meeting and negotiating with the Bedouin peoples
living around Beersheba.”43 He provides no source for this biblical assertion
because there are no such biblical references.
The story of Beersheba in the Bible is related in Genesis 20–23, when
Abraham met the king of Gerar, a king from a settled state far to the
north.44 If Champagne wants to base his land claims on the bible, it would
be Abraham and his Jewish descendants therefore who are indigenous.
Champagne’s misuse of the Bible is another example of the way in which
scholarship and historical sources are twisted in order to suit the needs of
the Bedouin today.
THE NON-INTERFERING OTTOMANS
For many years a central narrative of the history of Palestine was the
decline of the Ottoman Empire and its neglect of its Levantine Arab provinces.45
However, recent scholarship illustrates how actively the Ottomans
attempted to preserve their empire. The OLC of 1858 was only one part of
these far-reaching reforms. The authors portray the Ottomans as a weak
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54  •  israel studies, volume 19 number 1
power incapable of governing southern Palestine. Once again, history is
changed in order to suit the present political desires of a group.
Abu-Saad and Craemer note that the Ottomans “largely ignored
the tribal in-fighting [in the Negev],” and then claim that the British
“intervened very little in the daily activities of the Bedouin.”46 The Bedouin
are said to have been a “self-governing society in the area for many
generations.”47
However, this is contradicted by Ottoman experts. Yasmin Avci writes,
“The [Ottoman] government began to use sophisticated means and tactics
in order to secure control and encourage the integration of the Bedouin
element in the empire.”48 Jerusalem Governor Ekrem Bey complained that
“the bloody skirmishes between the different clans caused a state of desperate
poverty and disorder in the region, and a dramatic decrease in the government’s
revenue.”49 Far from “ignoring” tribal in-fighting, the Ottomans
sought to pacify the Bedouin through military expeditions and cement
state control of the Negev by ringing it with planned villages at Kaufakha,
Muharaqqa in the northern Negev, and planned towns at Beersheba and
on the Egyptian border, Auja al Hafir.50
A nuanced understanding of the Ottoman period illustrates just how
deeply the empire cared about the Negev. Not only did it almost fall into
a conflict with Great Britain over a border incident at Aqaba,51 it also
delineated the border with Egypt in 1906 and engaged in several attempts
to settle Bedouin near the fort of Fatish and in the area of the Besor.52
Kram repeats the claim that “Ottoman rule did not interfere with
Bedouin affairs” without providing any evidence of this non-interference.
Aref al-Aref, the governor of Beersheba sub-district, in a survey of how
the Ottomans dealt with the Bedouin notes that they actively interfered
in the imposition of law and clearly forbade the Bedouin from using their
own customary law in land dealings by introducing a land registry. “There
were no formal courts for tribes; rather a management council existed
which comprised a team of employees and another of tribal chiefs. The
council specialized in examining conflicts within the Beersheba district
only.”53
The authors are careful to note that the Bedouin did not pay taxes on
lands that they claimed, “Bedouin Arabs evaded land registration in order
to avoid tax payments, to escape forced military service and to maintain
their traditional land systems.”54 Similarly, Abu-Saad and Craemer note
“The Bedouin Arabs did not register their land holdings.”55
The authors claim that “By the end of the Ottoman period, only 5% of
the land in Palestine had been registered, demonstrating that not only the
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A Review Essay on Indigenous (In)justice • 55
Naqab Bedouins, but most of Palestine’s population had failed to register
their land.”56 This is an interesting argument, but it neglects to mention
that since most land in Palestine was classified miri and in the Negev as
mawat or “waste land” being distant from villagers and uncultivated, it was
un-owned. Many of the lands that were profitable or in private hands had
been registered, especially by effendis, the Ottoman sultan and foreigners
who took an interest in investing in Palestine’s land inventory.57 The
Bedouin had ample opportunity to register lands at the Beersheba land
registry, especially those mawat lands they had supposedly cultivated, and
they chose not to.
The Bedouin are often said not to have paid taxes due to “fear of taxation,
as well as an interest in protecting their customary systems.”58 It is
interesting that the Bedouin relation to taxes is described as a “fear”, the
notion that they alone do not register land because of “fear” of taxes provides
an excuse that is neither warranted nor appropriate. No population
wants to pay taxes, but when a resident of a modern state neglects to pay
taxes, at some point it is not due to “fear” but active avoidance and legal
forfeiture of land claims is the result.
As with the other chapters, Kram sets out an argument that “Ottoman
and British rulers recognized de facto and respected Bedouin land
ownership.”59 This goes along with the claim that the Bedouin practiced
“customary” law that was “de facto” recognized, as stated by Bailey, “rights
to the land they acquired before 1948 and in accordance with the Bedouin
law that then prevailed.”60 These claims are contradicted by a recent study
at Birzeit University that completed a survey of customary, what they call
“informal” law61. “There is no proof that any law was issued by the Ottoman
state that legalized and organized the practice of informal justice [emphasis
added].”62 If the Ottoman and British legal systems had decided to accept
all land agreements decided on through informal law, often called urf, then
they would have written it into their extensive legal codes.
TRAVELERS’ LITERATURE
Kram seeks to focus on the Israeli courts’ use of what she terms “travelers
literature”. She claims the “court relied on such literature to determine that
the claimed land was ‘desolate’.”63 This “conflates contemporary literature
with scientific research.” Kram claims, based on Yiftachel, that the travelers
were interested in “a specifically Christian perception” along a “route”.64
No evidence of this claim is presented.
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56  •  israel studies, volume 19 number 1
In fact many of the “travelers” were professional surveyors and researchers
serving with the British royal engineers, such as Claude R. Conder, and
they were not on a Christian mission because there are no Christian sites
of pilgrimage in the Negev.65 Rather than focus on a “route” many of them
provided detailed maps and analysis of much of the northern Negev. The
Palestine Exploration Fund Map of 1880 was of such high detail it was still
being used by the British in the First World War.
RE-INTERPRETING OTTOMAN LAW
The authors want to argue that “Israeli courts have largely ignored the
interchangeability of ‘inhabited area’ with ‘town’ or ‘village’ in certain
translations of the OLC.”66 But in fact, the authors have not investigated
how Ottoman courts or their Arab successors interpreted this meaning.
The authors don’t compare the Bedouin claims to those in Syria or Iraq
because they prefer to see Israel through the lens of a “colonial settler state”
that belongs in Australia or Canada, rather than being part of the fabric of
the Middle East.
Amara and Miller claim that Bedouin land rights in the Negev hinge
on the interpretation of what constitutes mawat land. They note that the
OLC defined mawat as land that was 1.5 miles from an inhabited settlement.
They then accuse the Israeli courts of narrowly interpreting “inhabited
settlement” since they “determined that a Bedouin encampment would
not constitute a village for these purposes.”67 However the authors provide
no evidence that Ottoman or Shariah courts, or successive courts in the
region, have interpreted “inhabited place/settlement” to mean a Bedouin
encampment that is not recognized by the state authorities. In fact the
Ottoman census and population registers, Nafus and Salname, recognize
only sedentary villages with stone houses as the unit of measurement for
mawat land.
The OLC noted “Mevat [sic] lands are those uncultivated areas which
lie outside the boundaries of existing villages, and which are usually available
for clearing and cultivation.”68 Tute notes that it “did not contemplate
the extension of inhabited sites . . . their rapid growth in recent years brings
them continually nearer to the former mewat area.”69 There was never a
conception that the settled places moved from place to place, as a tent
encampment might, rather they were fixed sites.
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A Review Essay on Indigenous (In)justice • 57
A WESTERN LEGAL SYSTEM?
“Bedouin culture, however, as an oral culture, did not historically attach the
same value to British and Ottoman land titles . . . [F]or a variety of reasons,
Bedouins avoided registering their land . . . [they] did not adopt the Western
system of land registration.”70 The insinuation that land registration and
delineation of ownership is “Western” is a nonsensical orientalist view of the
“East” as some romantic utopia of primitive communism. In fact, as Eisenman
lays out, “Categories of land referred to in Islamic law were included”
in the OLC.71 There was nothing “Western” about the code, which forms
the basis for parts of Israeli land laws today. The Bedouin ignored both the
Islamic system of law and the subsequent British Mandatory authorities,
not because of an aversion to “the West”, but because they didn’t want to
pay taxes and knew that under the Islamic system they also were not viewed
as owners. Kram claims that the Bedouin resisted “means to turn them into
taxpaying subjects of an external authority”72 and in doing so admits the
real reason for non-registration.
Stavenhagen also claims that “Western legal regimes like the one used
in Israel tend to impose restrictive categories of time and space that give
rise to a series of binary oppositions, favoring order/agriculture over chaos/
nomadism.” This Euro-centric assumption that only the “West” has legal
regimes and “favors order” ignores thousands of years of Chinese jurisprudence
as well as 1,300 years of Islamic law, and numerous other civilizations
in the Middle East, Asia, and Africa that were founded on law and order,
dating back to Hammurabi.
The Islamic source of the law was well known in the Mandate. When
Goadby and Doukhan were commissioned to write a statement of the
land law in Palestine, they noted “It is an ancient rule of Moslem [sic]
law, stated in the Hedaya, that ‘whosoever cultivated Mewat (waste) lands
with the permission of the Chief, obtains a property in them; whereas, if a
person cultivate them without such a permission, he does not in that case
become proprietor, according to Hanifa [school of Islamic law]’.” Similarly,
under the Ottoman Mejelle (Civil Code), “If a person, with the leave of the
Sultan, takes and improves a place from arazi-Mewat he becomes the mulk
[private freehold owner] of it.”73 The Islamic system of law upon which
the Ottomans built and reformed in Palestine, was highly advanced and
bureaucratic. That the Bedouin ignored the law is testified to by Aref elAref;
“The Bedouin who seized control of land for himself or for his tribe
did not think about registering the land seized, despite the existence of a
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58  •  israel studies, volume 19 number 1
Land Registration Bureau at that time.”74 It wasn’t a Western legal system
the Bedouin didn’t adhere to, it was the Islamic-Ottoman legal system.
MISREADING THE MANDATE’S LAW
The Mandate period provides an excellent resource for researchers because
it produced a large amount of archival material that is readily accessible.
Of hundreds of thousands of pages of documents several are employed
by researchers to support the claim that the Bedouin enjoy land rights in
the Negev. One is a notation by the Chief Justice of Palestine, Sir Michael
McDonnell, which they quote; “The absence of title deeds to land in the
Beersheba area and the necessity for the production of a title deed under
Article 24 of the Magistrate Law, a case such as this appears to be one of
those for which the application of tribal custom under Article 45 . . . is
specially intended.”75
Article 45 stated “The High Commissioner may by order establish
such separate courts for the district of Beersheba . . . such courts may apply
tribal custom.”76 The Beersheba sub-district court functioned under the
Jerusalem central court, which could refer cases to it and thence to the tribal
courts. The case in question was heard because it was not clear if the land
court should decide it or it should be transferred to the tribal court. Since
there was an absence of title deeds, as the judge notes, and the residents were
from Beersheba sub-district, it was judged to be a case that could be heard
by the tribal courts. Far from being a “recognition of Bedouin historical
land rights”77 as the authors assert, the case illustrates a singular decision
to transfer a dispute to the tribal courts. The tribal courts were specifically
barred from dealing in property in article 6 of the Tribal Courts Procedural
Law 1937, as a normal course of affairs: “The tribal court shall not rule on
cases of ownership of immovable property, but it may issue the decision
it considers just with regard to taking possession of such property.”78 The
point of the courts was to deal in cases that didn’t neatly fit into the Mandate
system until such time as the Mandate had extended its laws fully to
the Negev. The tribal court could not issue title to property, but only mediate
between Bedouin on claims they had among themselves; it conferred
no land rights in its rulings and was specifically barred from doing so.79
The authors also quote a Government of Palestine response to a
Jewish inquiry from 1937 in which the government advisor noted “The
cultivatable land in the Beersheba sub-district is regarded as belonging to
the Bedouin tribes by virtue of possession from time immemorial.”80 This
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A Review Essay on Indigenous (In)justice • 59
is an interesting statement but it is contradicted by every other document
produced by the Mandatory authorities. Not only was the Beersheba subdistrict
never subjected to land settlement, but at the end of the Mandate
in 1945 a map showing state lands remarks of the Negev that it will “no
doubt be found at land settlement to be public.”81 In 1930 John Hope
Simpson, in his report to parliament, noted of the Bedouin: “They claim
rights of cultivation and grazing, of an indefinite character and over indefinite
areas.” The Mandate policy in the Negev never recognized Bedouin
land holdings, and repeated this each time that it sought to eventually
deal with this issue.
Kram claims that Bedouin began writing bills of sale for land they
claimed in the British period due to “influence from merchants from Gaza
and Hebron.”82 She claims that “The British rule regarded it as sufficient
documentation for land registration and the Beersheba tribal court under
the British Mandate used it to rule in land disputes.”83 However the Beersheba
tribal court was not authorized to register land. Assaf Likhovski writes
that “Article 45 of the Palestine Order in Council institutionalized this
system, establishing a Bedouin tribal court that applied ‘tribal custom’ . . .
the jurisdiction of the tribal court established in 1922 was limited to petty
criminal and civil disputes . . . it could not decide cases in which ‘either or
both parties is a settled inhabitant of the town of Beersheba’, nor could it
decide questions of ownership of property.”84 Kram, relying on H. AbuRabia,
ascribes a power to the court it never had.
THE MAWAT LAND ORDINANCE
The authors also misinterpret the 1921 Mawat Land Ordinance. Kram
repeats the claim that it “provided a narrow opportunity to register mawat
land”85 and that those that did not “would lose any ownership rights.” The
source for this is Rosen-Zvi,86 but the reference deals with the modern
Israeli courts’ take on the land ordinance. An article ostensibly posing as an
expert analysis on land law doesn’t bother to reference the primary sources
relating to the law.
The sixty-six word ordinance had two parts, the first of which states,
“Any person who without obtaining the consent of the administration
breaks up or cultivated Waste [mewat] land shall obtain no right to a title
deed for such land and further will be liable to be prosecuted for trespass.”
Only the second paragraph notes that those who had already cultivated
such land should “notify the Registrar of the Land Registry”.87 The first
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60  •  israel studies, volume 19 number 1
paragraph clearly states that with the consent of the administration people
could still revive mewat land, and that even if they didn’t register their land
the administration could still provide such consent after two months.
The authors claim, relying on Sandy Kedar, that “The British themselves
had routinely circumvented” the ordinance.88 Kram and other
authors don’t reference the full ordinance because it contradicts their claims.
For instance, she writes “The British authorities never fully implemented
the 1921 Mawat Land Ordinance, allowed Bedouins to register lands in their
name even after the two month period stipulated in the ordinance.”89 This
sounds remarkably similar to Abu Husayn in his 2003 book, “The British
and the pre-state Zionist institutions continued to recognize Bedouin land
rights after the Mewat Land Ordinance.”90
Stavenhagen and Amara repeat the claim about the 1921 ordinance,
without actually seeming to have read it; “The Mandate government issued
an order in 1921 calling on Naqab inhabitants who cultivated, revitalized
and improved mawat land to register their land. For a variety of reasons the
Bedouin largely chose not to do so, and their land remained unregistered.”91
The Mandate’s 1921 ordinance didn’t “call” on anyone, and certainly did
not mention the Negev; it simply substituted one paragraph for article 103
of the land code.
The ordinance has come down as one of the main reasons for the Bedouin
losing rights to land they claim to have owned. However, it was not
intended to get people to register their mawat claims, but rather to prevent
new mawat claims from arising after 1921. After 1921 when the state subjected
land to survey, registration, and settlement of title, it allowed people
to base their claims prior to the 1921 ordinance and in a sense “circumvent”
it. However in this case the authors argue the Bedouin should be allowed to
claim that their ownership dates from before 1921, but since the Negev had
no fixed settlements except for Beersheba in 1921, the land was all mawat
and thus a form of state land.
The Mandate government and subsequent scholars have interpreted
the meaning of the ordinance to be the conservation of the land from
encroachment by squatters. In 1930 the Mandate reported to the League of
Nations: “In order to conserve the State Domain, the ‘Mewat’ Lands Ordinance
was passed, prohibiting unauthorized encroachment, and requiring
persons who had already cultivated or developed waste land to lodge within
a limited time applications for titles.”92 Similarly Warwick notes that the
ordinance was designed to “conserve natural vegetation and prevent soil
erosion.”93
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A Review Essay on Indigenous (In)justice • 61
If the ordinance was primarily designed not to deal with the Negev, but
the whole of Palestine, and to institute a regulated system of land management
of public resources, why has it become the centerpiece of the Bedouin
rights argument in relation to the Mandate? Because the authors want to
argue that the Bedouin, ignorant of the ordinance, were deprived of their
rights by its narrow time window; but in fact the ordinance was not directed
at existing claims, rather the creation of new claims. The Bedouin simply
had no existing claims prior to 1921; they constructed all the unrecognized
villages afterward.
MANDATORY SOURCES MISINTERPRETED
Kram claims that “The 1931 British census of Palestine pointed out that
89.3% of the Bedouins in the Naqab earned their livelihood through agriculture.”
Actually the census says that of 42,868 supported by agriculture,
only 10,377 earned their living from it. However, the same census notes that
a “primitive method of enumeration”94 that was adopted was inaccurate.
Kram neglects to quote from the next page of the census where it is noted
that “very little of the land of the sub-district is registered in the land office
. . . most of the land may be described as mewat, not having been assigned
or disposed of by deed . . . at present the nomads derive a bare existence
from agriculture.”95 Interestingly the census does give a figure for “landowners”
of 7,869 people and “tenants” as 2,508, but doesn’t note whether
they are absentees, residents of Beersheba, or Bedouin.
In order to prove that the Bedouin owned the land Kram quotes Aref
al-Aref, the British governor of the Beersheba sub-district. “Every inch of
the land is owned by someone and everyone knows his own land.” She
doesn’t quote the larger context of what Aref wrote because it clearly contradicts
the part she chose; al-Aref wrote that the Bedouin “took the land
for roaming and raiding and grazing. When the value of the land began to
dawn on them they adopted a system of acquisition known as Hajer. This
meant, simply, that a Bedawi chief would stand at a point and announce
that he would take all the land within the boundaries fixed by a distant rise
or tree.”96 When the Turkish government called the sheikhs together “and
told the government [that] action was directed at proving and protection
of their title to the land, they [the Bedouin chiefs] pointed to their swords
and rifles and said ‘here are our titles’ . . . to this day Beersheba land is not
included in the register.”97 Conveniently, Kram quotes the next sentence,
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62  •  israel studies, volume 19 number 1
but the context of the quote is clearly relating to the Bedouin use of power
to obtain land, not related to actual ownership or titles.
Further assertions about the Mandate relate to claims about nonexistent
documents. Kram argues that the Bedouin claim rights under
“customary law” and that “they base their claims on tax payment documents
for land they held during the British and Ottoman eras.”98 The
author provides no source for this claim, but notes that Bedouin “sold land
to Zionist organizations before 1948” and that this “proves their rights over
the Naqab lands.”99 However this is contradicted by a note from the district
commissioner of Gaza in 1945, he relates that, “Protests have been raised at
attempted ploughing by Jews of land in Asluj to which they have extremely
doubtful title . . . there are large areas in the Beersheba sub-district which
the Jews claim to have bought . . . but which are not registered in the Land
Registry.”100 This is evidence that although outsiders “purchased” land in
the Negev, that land could not be registered since land settlement of title
was never carried out in the Negev, and for all intents and purposes they
were sold land by people who did not have title to it. A document attributed
to the Palestine Land Development Corporation from 1921 notes
for example that “The Tayaha have no government ownership documents
showing that this area [they live on] belongs to them” and also notes that
“Throughout the area of the tribe the effendis of Gaza, Beersheba and
Hebron own large estates”, which the authors note they took by force or
through money-lending and foreclosure.101 The document illustrates the
convoluted situation in which land was acquired by outsiders from Bedouin
in cases where the Bedouin had no ownership because the outsiders were
willing to go through proper legal channels to register it afterward.
Another interesting assertion is that “The Mandate government also
issued certificates of registration for Jewish buyers of land. In these certificates,
Bedouins are registered as the former owners of the land.”102
The author doesn’t quote which “Bedouin” are listed, since she and other
researchers evidently do not know whether the Arab names on the certificates
were Bedouin or Bedouin residents of Beersheba town, where land
was registered, or Arabs from other districts, such as merchants from Gaza.
In research I carried out on the sub-district with Ruth Kark, we located a
deed executed in November 1933, in which Jurelia Eff. Abu el Hajj Rashid
Shalum sold 2,298 dunams to a man named Joseph Mierowitz for 1250 L.P.
(Palestinian Pounds). The land’s boundaries were described in a written
statement detailing the borders since no block or parcel number could be
provided without a survey.103 This property was located near Beersheba. It
is not noted if Mr. Shalum was a “Bedouin” on the deed.
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A Review Essay on Indigenous (In)justice • 63
Kram also repeats the claim of the other authors that the Israeli “court
interpreted the concept of ‘settlement’ in a way that excluded many Bedouin
forms of settlement (for example the use of tents) from the definition of
‘village’.”104 The author provides no evidence that the British defined tents
as a “village”; in fact they did not. As Sir Henry Gurney, last chief secretary
of the Mandate administration, told the representative from Guatemala at
a June 1947 meeting of the UN Special Committee on Palestine, “Q: So
the Negeb [sic] is more or less deserted? A: Yes.”105 Gurney also told the
committee “The nomads are very difficult people to estimate accurately.”106
Thus Gurney meant by “deserted”, not that there were no people, but no
settlements. This is borne out by Mandatory maps and censuses, which did
not recognize any Bedouin villages in the Negev.
Similarly, Kram disregards the fact that Israeli courts have relied on
British aerial photos which clearly show the absence of settled villages. In
research with Ruth Kark and Noam Levin on aerial photos of the Negev
no “villages” were discovered, although numerous isolated houses did exist
in the northern Negev, along with 9,080 tents.107
The conclusion regarding the Mandate period is that the Bedouin
did not register land holdings in the Negev. Whatever land the Bedouin
did cultivate, they almost never paid taxes on it. No Bedouin villages or
recognized permanent settlements were constructed. A variety of excuses
are mustered for the Bedouin, including selective quotes from sources
that appear to show Mandatory recognition of customary law or that the
Mandate assumed the Bedouin might have land claims. However, the larger
context of every document and law illustrates the weakness of the Bedouin
THE SETTLER STATE AND THE BEDOUIN
In Yiftachel’s conception the Bedouin exist “as a colonized indigenous
people residing within a settler state.”108 John Sheehan connects the state to
other colonial regimes; “The property rights of indigenous peoples—such
as the Bedouins of the Naqab (Negev) Desert—have always been a conundrum
for countries whose land law is rooted in British common law . . .
Israel became a common-law country in 1917.”109 This shows a complete
ignorance of the history; Palestine’s legal framework was not formulated
until after 1920 and Israel’s land law was not borrowed from the common
law.
Craemer and Abu-Saad argue that “The Zionist colonial project portrayed
Palestine as a ‘land without a people for a people without a land’.”110
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64  •  israel studies, volume 19 number 1
However this quote is actually attributed to Christian Zionists; many Zionists
had contacts with Bedouin, including Pessah Bar-Adon and Zalman
David Levontin.111
Nevertheless, the creation of Israel resulted in the “expulsion of roughly
80–90%” of the Negev Bedouin, the imposition of a military government
over those that remained, and “the near complete loss of individual freedoms
and property rights.”112 The authors argue that Israel “impinged on
virtually every aspect of life” and yet “neglected them for the next twenty
years.”113 They note that “the building of permanent structures was prohibited”
in the Negev.114 Although Israel may have “prohibited” types of
construction or movement to certain areas, it doesn’t necessarily mean that
in practice Bedouin obeyed these laws.
Amara and Miller add some more information to the narrative. They
claim, based on an article by H. Noach of the Negev Coexistence Forum,
that “137,400 dunams were expropriated from Bedouin in the Naqab” as
a result of the 1948 war. However this figure relates to land acquired by
the state through the Land Acquisition Law of 1951,115 not land that was
confiscated from individual Bedouin owners. The authors also relate how,
in 1969 under the Land Rights Settlement Ordinance, the state allowed
Bedouin to file land claims, of which 3,220 were filed to 778,856 dunams.116
The early planning authorities for the Negev did not envision an equal
place for the Bedouin alongside the Jews who were moving there. Moshe
Dayan is quoted as saying “We should transform the Bedouin into an urban
proletariat . . . 83% of the Israeli population are not farmers; let the Bedouins
be like them.”117 Planners such as Arieh Sharon were busy transforming
large numbers of Jewish immigrants into this “urban proletariat” in line
with the current socialistic thinking. Abu-Saad and Craemer correctly note
that “Both aims could have been achieved by planning small agricultural
villages or cooperatives with a land base (such as the Jewish moshavim and
kibbutzim) for the Bedouin.”118 The discrimination against the Bedouin by
the planning authorities, however, dovetailed with the state’s overbearing
discrimination against the other 83% of Israeli society that were supposed to
be penned into peripheral urban centers. Rather than singling the Bedouin
out, the Bedouin were simply one more group, alongside most of the Mizrahi
Jewish immigrants, who were not given support to build agricultural
settlements. The state’s discrimination against the Bedouin should be seen
as part of its overall socialistic planned economy.119
The state eventually decided to build towns for the Bedouin, termed
“townships” by the authors to compare them to “Black townships” in South
Africa, which accommodated the majority of the Bedouin population in
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A Review Essay on Indigenous (In)justice • 65
the 1970s and 1980s. The Bedouin towns have been severely neglected and
are not on public transportation routes. The main issue that the researchers
are interested in is not the planned towns and how to make them successful,
but rather the land claims of the unrecognized villages. All of the
selective and faulty evidence martialed about the Mandate and Ottomans
is designed to underpin rights for the minority of Bedouin who reside illegally
on state land, not to provide rights to the other urbanized Bedouin. In
discussing these unrecognized villages the authors claim that their population
is 84,000 people who “typically live in tents or makeshift wooden or
metal shacks.” The source for this is the Regional Council of Unrecognized
Villages, hardly an unbiased observer; in fact most of them do not live in
tents.120 According to the narrative, the presence in these villages represents
“Bedouin Arab resistance to the urbanization program.”121 This presents the
choice to squat on state land not as an act of trespassing, but as an informed
act of “resistance”.
Even though the presence of the unrecognized villages is part political
resistance, Rashida Manjoo’s claims that “The Israeli state . . . has created or
failed to remedy intolerable living conditions created by policies of forced
evictions, home demolitions, and forced urbanization.”122 It is interesting
here that urbanization is juxtaposed with intolerable living conditions. The
Bedouin in the unrecognized villages have chosen over the years to live
in those circumstances that according to the authors reflect their culture,
with women segregated and discriminated against, with flocks of animals,
and large estates. According to Marianne Jordan, “Many Bedouin today
have moved back to ‘unrecognized villages,’ yet formally keep their township
addresses in order to enjoy the limited privileges that these localities
provide.”123 Manjoo leaves the state with no options, except to provide
land for large mansions for each Bedouin family, even while the rest of the
populace of Israel, the world, and of the Bedouin in the rest of the Middle
East, have become urban dwellers.
EQUALITY? BEDOUIN POPULATION
AND LAND OWNERSHIP
Kram disingenuously claims that “Bedouins constitute approximately
25% of the Naqab population; their land claims constitute about 5.4% of
the Naqab.”124 This presents a false rationale whereby one’s percentage in
the population necessarily equals how much land you should own. Jews
constitute 75% of the Negev and only own around 1% of it.125 Jewish
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66  •  israel studies, volume 19 number 1
communities manage an estimated further 6% in their built-up areas.
If anything, the Negev Bedouin seek ownership over a disproportionate
amount of the Negev. Similarly, Amara and Miller delve into the issue
of planning. They note that “The municipalities of Bedouin townships
have jurisdiction over a mere 1.9% of land in the northern Naqab region,
although Bedouin make up 25.2% of the population in the area.”126 In fact,
Beersheba, with a population of 200,000 Jews has only 50,000 dunams
while Bedouin Rahat has a population of 53,000 and 20,000 dunams.
Ninety percent of the Negev is occupied by military bases and national
parks, not Jewish municipalities.
The Bedouin unrecognized villages, if their land claims were approved,
would occupy 800,000 dunams with 80,000 people, making them the largest
per capita land owners in Israel, hardly a discriminated or marginalized
group. Stavenhagen quotes in his conclusion the UN Human Rights Committee
as noting that Bedouin “should be given equality of treatment with
Jewish settlements.”127 However equality with Jewish settlements would
mean that just as 200,000 Jews are crammed into 100 sq. meter apartments
in the 50,000 dunams of Beersheba, likewise 80,000 Bedouin would be
crammed into 20,000 dunams, not the 240,000 that their municipalities
currently control.
CULTURAL NEEDS
Many of these scholars claim that the Bedouin must receive state-supported
housing that matches their culture. The authors note that after Israel constructed
planned towns for the Bedouin, “The small houses were unsuitable
for large families with an average of eight to nine children and the
high density of the town itself conflicted with the Bedouins’ traditionally
dispersed settlements.”128 Manjoo claims “Housing plots in the towns
have been smaller and closer together than those in traditional Bedouin
villages, different families have been forced to live in greater proximity to
one another.”129 Therefore the Bedouin, because they once lived a nomadic
life, must always possess huge amounts of land and large mansions simply
because supposedly their culture demands it? Yet Ethiopian Jews came from
villages and Israel has not built them identical villages in Israel, rather they
have ended up living in cramped apartments. There is some notion that the
Negev Bedouin, alone among the world’s population, should be immune
from the laws of economics and social transition to urban living. In other
Arab states Bedouin have adjusted successfully to urban living.
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A Review Essay on Indigenous (In)justice • 67
The statistics for the Jewish sector are presented as if the Bedouin and
the Jews are the only groups in Israel. However, the real comparison for
the Bedouin, who are a sub-set of the Arab population, should be a sub-set
of the Jewish sector that has a high birth rate, such as the ultra-Orthodox,
and figures for household size for these communities are almost identical,
as are resulting poverty rates.130
Manjoo argues that Israel’s “policy of imposing mixed-gender schools
that fail to account for cultural restrictions discriminate against Bedouin
girls by effectively depriving them of their right to education.”131 This
places the onus on the state for enforcing discrimination against women.
POST-SCHOLARSHIP AND THE BEDOUIN
Proponents of the Negev Bedouin advance several theories regarding their
rights: They are indigenous and arrived in the Negev in the fifth century;
the Ottomans did not interfere with their customary law; Bedouin cultivated
two million dunams; the British respected their customary law; Bedouin
did not register land because a Western legal system was imposed on
them; the Mewat Land Ordinance deprived them of rights; most Bedouin
villages existed before 1948; Israeli courts have narrowly interpreted mewat;
the Bedouin must receive land and housing related to their cultural needs.
As has been shown, all of these claims are disingenuous or based on
a faulty reading of the historical sources. This doesn’t mean that the state
cannot find an equitable solution to the land claims of the Bedouin through
recognizing their tenure as adverse possession, consider learning from Arab
states132 or learning from how European countries deal with the Roma,
with whom the Bedouin share some characteristics. However, every claim
that seeks to show that their rights derive from the law or from concepts of
indigeneity do not correspond to the current situation in the Negev.
The Negev Bedouin represent one of the fastest growing populations
in the world. Their land claims and the argument of their supporters that
they must be provided with land that is in line with their “cultural needs”
means that not only do they claim 800,000 dunams for 80,000 residents
today, but given population growth, in 20 years they will require another
two million dunams, and so forth. In every neighboring Arab country the
majority of the Bedouin have successfully transitioned to a modern urban
or suburban life. As Daes writes, “Indigenous peoples themselves cannot
be frozen in time. Indigenous communities and societies change and evolve
like all other societies.”133
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68  •  israel studies, volume 19 number 1
The land claims are based on assertions that the Bedouin cultivated
up to 2m dunams prior to 1948. However 80% of the pre-1948 population
left the country. Even if the remaining 20% were provided with rights to
the percentage of dunams they might have used for cultivation, it would
only be 200,000 dunams. The land claims today relate to land the Bedouin
have moved to recently.
The authors of this volume seek to discharge the time element and
communal ownership of the lands from the definition of indigenous peoples
because it doesn’t fit their model. This dovetails with the entire volume,
which uses deceptive figures, selective quotes, unsubstantiated assertions
and widespread use of secondary sources, and the discarding of any source
that is not in line with the argument. This volume contributes no new
evidence to the current debate. It provides no paradigm under which the
land claims might be solved, illustrating how little this book contributes to
helping alleviate the actual suffering in the unrecognized villages.
Notes
1.	 Ahmad Amara, Ismael Abu-Saad, and Oren Yiftachel, eds., Indigenous
(In)justice: Human Rights Law and Bedouin Arabs in the Naqab/Negev (Cambridge,
MA, 2013).
2.	 Eugene Rogan and Avi Shlaim, eds., The War for Palestine: Rewriting the
History of 1948 (Cambridge, 2001).
3.	 Amara, Abu-Saad, and Yiftachel, Indigenous, 331.
4.	 Only once in the volume is contrary research mentioned, but its author is
castigated as “a recent US immigrant”; Oren Yiftachel, “Naqab/Negev Bedouins
and the (internal) Colonial paradigm,” in Amara, et al., Indigenous, 321.
5.	 This is the number generally used in the book, although estimates range as
high as 200,000.
6.	 “Bedouins in the State of Israel,” The Knesset (2010), accessed 3 February
2012. http://www.knesset.gov.il/lexicon/eng/bedouim_eng.htm.
7.	 Amara et al., Indigenous, 125. The Sharon quote is also shown in full on
p. 146.
8.	 Amara and Miller, “Unsettling Settlements: Law, Land, and Planning in
the Naqab” in Amara, et al., Indigenous, 96. Developments are ongoing; in January
2013, after the volume’s publication, the cabinet approved the Prawer plan for
legalizing new Bedouin settlements in the Negev.
9.	 Amara et al., Indigenous, 197.
10.	 Sheehan, “Applying an Australian NativeTitle Framework to Bedouin Property”
in Amara et al., Indigenous, 238.
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A Review Essay on Indigenous (In)justice • 69
11.	 Seth J. Frantzman, Havatzelet Yahel, and Ruth Kark, “Contested Indigeneity:
The Development of an Indigenous Discourse on the Bedouin of the Negev,
Israel,” Israel Studies 17.1 (2012): 78–104; Oren Yiftachel, “Bedouin-Arabs and
the Israeli Settler State: Land Policies and Indigenous Resistance,” in The Future
of Indigenous Peoples: Strategies and Survival, ed. Duane Champagne and Ismail
Abu-Saad (Los Angeles, 2003), 21–47; Alexander (Sandy) Kedar, “On the Legal
Geography of Ethnocratic Settler States, notes towards a research agenda,” in Law
and Geography, ed. Jane Holder and Carolyn Harrison (Oxford, 2006), 401–41;
Mansour Nasasra, “The Ongoing Judaization of the Naqab and the Struggle for
Recognizing the Indigenous Rights of the Arab Bedouin People,” Settler Colonial
Studies 2.1 (2012): 59–80.
12.	 Amara, et al., Indigenous, xi.
13.	 Ibid., 2.
14.	 Ibid., 2–3.
15.	 Noa Kram, “The Naqab Bedouins: Legal Struggles for Land Ownership
Rights in Israel,” in Amara et al., Indigenous, 127.
16.	 Rudolfo Stavenhagen and Ahmed Amara, “International Law of Indigenous
peoples and the Naqab Bedouin Arabs,” in Amara et al., Indigenous, 172.
17.	 Ibid.
18.	 Erica-Irene A. Daes, Special Rapporteur, Commission on Human Rights,
Human Right of Indigenous Peoples: Indigenous People and their Relationship to Land,
Second Progress Report, U.N. Doc. E/CN.4/Sub.2/1999/18 (1999), http://www
.unhchr.ch/Huridocda/Huridoca.nsf/TestFrame/154d71ebbbdc126a802567c400
3502bf?
19.	 “Background to the Formation of WCIP,” Canada (April 1980) http://cwis
.org/fwdp/International/wcipinfo.txt.
20.	 Ismael Abu-Saad and Cosette Craemer, “Socio-Political Upheaval and
Current Conditions of the Naqab Bedouin Arabs,” in Amara et al., Indigenous, 21.
21.	 Clinton Bailey, “Dating the Arrival of the Bedouin to the Negev,” Journal
of Economics and Social History XXVIII (1985).
22.	 Stavenhagen and Amara, “International Law,” in Amara et al., Indigenous,
165.
23.	 Amara et al., Indigenous, 4.
24.	 Stavenhagen and Amara, “International Law,” in Amara et al., Indigenous,
159, 177.
25.	 Pima Native-Americans would be less “indigenous” than Apache simply
because they were sedentary.
26.	 Amara et al., Indigenous, 322.
27.	 Ibid..
28.	 Yiftachel, “Naqab/Negev Bedouins and the (Internal) Colonial Paradigm,”
in Amara et al., Indigenous, 297.
29.	 Cindy Yurth, “Census: Native Count Jumps by 27 percent,” Navajo Times,
26 January 2012.
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70  •  israel studies, volume 19 number 1
30.	 Amara et al., Indigenous, 5.
31.	 Abu-Saad and Craemer, “Socio-Political Upheaval,” in Amara et al., Indigenous,
20.
32.	 Ibid., 21.
33.	 Kram, “The Naqab Bedouins,” in Amara et al., Indigenous, 134.
34.	 Stavenhagen and Amara, “International Law,” in Amara et al., Indigenous,
164.
35.	 Clinton Bailey, “Whose Really Taking over the Negev,” Ha’aretz 6 February
2013; Shlomo Swirski and Yael Hasson, “Invisible Citizens: Executive Summary,”
ADVA February 2006, 7.
36.	 “Report to the General Assembly,” vol. 1 Supplement 11, UNSCOP, 1947.
37.	 Survey of Palestine, Jaffa, 1937, 1:1,000,000, “cultivation zones”.
38.	 Government of Palestine, Survey of Palestine (Jerusalem, 1946), 370.
39.	 Village Statistics 1945 (Jerusalem: Government of Palestine, 1945).
40.	 Warwick P.N. Tyler, State Lands and Rural Development in Mandatory Palestine
1920–1945 (Brighton, 2001), 166; Robert Nathan, Oscar Grass, and Daniel
Creamer, Palestine: Problem and Promise (Washington, DC, 1946), 615.
41.	 H.V. Muhsam, “Enumerating the Bedouin of Palestine,” in Bedouin of the
Negev: Eight Demographic Studies (Jerusalem, 1966), 21.
42.	 Ibid., 21; Seth Frantzman, Noam Levin, and Ruth Kark, “Counting Nomads:
British Census Attempts and Tent Counts of the Negev Bedouin 1917–1948,”
submitted to Population, Space and Place.
43.	 Duane Champagne, “‘Indigenous, Citizens’, and Human Rights: The
Bedouins of the Naqab,” in Amara et al., Indigenous, 259.
44.	 Y. Aharoni, “The Land of Gerar,” Israel Exploration Journal 6.1 (1956): 26.
45.	 Mauros Reinkowski, “Late Ottoman rule over Palestine: Its evaluation in
Arab, Turkish and Israeli histories 1970–90.” Middle East Studies 35 (1999): 66–97,
79.
46.	 Abu-Saad and Craemer, “Socio-Political Upheaval,” in Amara et al., Indigenous,
22.
47.	 Amara et al., Indigenous, 322.
48.	 Yasemin Avci, “The Application of Tanzimat in the Desert: The Bedouins
and the Creation of a New Town in Southern Palestine (1860–1914),” Middle
Eastern Studies 45.6 (2009): 971.
49.	 Başbakanlık Osmanlı Arşivi, Sadaret Mektubi Mühimme Kalemi, 1/89, 28
Zilkade 1261/28 November 1845 [Turkish]; Avci, “The Application,” 973.
50.	 Roy S. Fischel and Ruth Kark, “Sultan Abdülhamid II and Palestine: Private
Lands and Imperial Policy,” New Perspectives on Turkey 39 (2008): 12966.
51.	 G. R. Warburg, “The Sinai Peninsula Borders 1906–47,” Journal of Contemporary
History 14.4 (1979): 677–92.
52.	 Dan Gazit, “Sedentary Processes in the Besor Region in the Era of Abdulhamid
II,” in Jerusalem and Eretz Israel, ed. Joshua Schwartz, Zohar Amar, and Irit
Ziffer (Tel-Aviv, 2000 ) [Hebrew].
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A Review Essay on Indigenous (In)justice • 71
53.	 Aref al-Aref, Jurisprudence among the Bedouin (Kitab al-Qada Byan-a alBadw)
(Jerusalem, 1933), 12 [Arabic].
54.	 Amara and Miller, “Unsettling Settlements: Law, Land, and Planning in the
Naqab,” in Amara et al., Indigenous, 81.
55.	 Abu-Saad and Craemer, “Socio-Political Upheaval,” in Amara et al., Indigenous,
23.
56.	 Amara and Miller, “Unsettling Settlements: Law, Land, and Planning in the
Naqab,” in Amara et al., Indigenous, 82.
57.	 Ruth Kark, “Changing Patterns of Landownership in Nineteenth-century
Palestine: The European Influence,” Journal of Historical Geography 10.4 (1984):
357–84.
58.	 Amara and Miller, “Unsettling Settlements: Law, Land, and Planning in the
Naqab,” in Amara et al., Indigenous, 83.
59.	 Kram, “The Naqab Bedouins,” in Amara et al., Indigenous, 128.
60.	 Clinton Bailey, “Time to Settle Bedouin Claims,” Ha’aretz8 April 2011. http://
www.haaretz.com/print-edition/opinion/time-to-settle-bedouin-claims-1.354755
61.	 “The term ‘informal justice’ refers to a social phenomenon widespread
throughout the West Bank and Gaza Strip, comprising the settlement of disputes
between citizens outside the framework of regular or formal courts . . . urf, sulh
is one method used to settle disputes. . . . informal justices includes tribal law”
(Birzeit, 2006), 14.
62.	 “Informal Justice: Rule of Law and Dispute Resolution in Palestine: National
Report on Field Research Results” (Birzeit, 2006), 31. http://lawcenter.birzeit.edu/
iol/en/project/outputfile/5/a391785614.pdf)
63.	 Kram, “The Naqab Bedouins,” in Amara et al., Indigenous, 144.
64.	 Ibid.
65.	 Old Testament Beersheba is not a Christian holy site.
66.	 Amara and Miller, “Unsettling Settlements: Law, Land, and Planning in the
Naqab,” in Amara et al., Indigenous, 90.
67.	 Ibid., 87.
68.	 R.C. Tute, The Ottoman Land Laws with Commentary, Note 1, Art. 1., 2.
69.	 Ibid., Note 2, Art. 6., 16.
70.	 Kram, “The Naqab Bedouins,” in Amara et al., Indigenous, 141.
71.	 Robert H. Eisenman, Islamic Law in Palestine and Israel (Leiden, 1978), 53.
72.	 Kram, “The Naqab Bedouins,” in Amara et al., Indigenous, 141.
73.	 Frederic M. Goadby and Moses J. Doukhan, The Land Law of Palestine
(Tel Aviv, 1935), 46.
74.	 Aref el-Aref, Jurisprudence among the Bedouin (Jerusalem, 1924), 235; also
Bedouin Love, Law and Legend (Jerusalem, 1944), 179–80.
75.	 Amara and Miller, “Unsettling Settlements: Law, Land, and Planning in the
Naqab,” in Amara et al., Indigenous, 84.
76.	 Order-in-Council, Article 45, Government of Palestine.
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72  •  israel studies, volume 19 number 1
77.	 Amara and Miller, “Unsettling Settlements: Law, Land, and Planning in the
Naqab,” in Amara et al., Indigenous, 84.
78.	 Official Gazette, No. 719, 16 September 1937, 2nd Annex, 699 (a) 841. See
also Birzeit Field Research and Aharon Layish, Legal Documents From the Judean
Desert: The Impact of the Sharia on Bedouin Customary Law (Leiden, 2011), 37.
79.	 “Informal Justice: Rule of Law and Dispute Resolution in Palestine: National
Report on Field Research Results.”
80.	 Amara and Miller, “Unsettling Settlements: Law, Land, and Planning in the
Naqab,” in Amara et al., Indigenous, 84.
81.	 “State Domains, 1945,” 1:250,000 State Domains Palestine Map, Government
of Palestine, ISA, map 296.
82.	 Kram, “The Naqab Bedouins,” in Amara et al., Indigenous, 135.
83.	 Ibid.
84.	 Assaf Likhovski, Law and Identity in Mandate Palestine (Chapel Hill, NC,
2006), 34.
85.	 Kram, “The Naqab Bedouins,” in Amara et al., Indigenous, 129.
86.	 Issachar Rosen-Zvi, Taking Space Seriously: Law, Space and Society in
Contemporary Israel (Aldershot, UK, 2004), 47.
87.	 “Mewat Land Ordinance,” amendment to article 103 of Ottoman Land
Code, Herbert Samuel, 16 December 1921, Jerusalem.
88.	 Ibid., 88.
89.	 Kram, “The Naqab Bedouins,” in Amara et al., Indigenous, 139.
90.	 Hussein Abu Hussein and Fiona McKay, Access Denied: Palestinian Land
Rights in Israel (New York, 2003), 122.
91.	 Stavenhagen and Amara, “International Law,” in Amara et al., Indigenous,
164.
92.	 Report of His Majesty’s Government to the League of Nations, on Palestine
andTransjordan, 1930. http://unispal.un.org/unispal.nsf/d0911f77d9bb1f148525740
50052b8d6/c2feff7b90a24815052565e6004e5630?OpenDocument&Highlight=0,
Mewat
93.	 Tyler, State Lands, 22.
94.	 E. Mills, Census of Palestine, vol. 1 (Jerusalem, 1931), 330.
95.	 Ibid., 335.
96.	 el-Aref, Bedouin Love, 179–80.
97.	 Ibid.
98.	 Kram, “The Naqab Bedouins,” in Amara et al., Indigenous, 129.
99.	 Ibid., 130.
100.	 Political Diaries of the Arab World—Palestine and Jordan, 1945–1946, Vol. 8
(Reading, UK, 2001), 228; http://www.plands.org/articles/013.html#note tar 05.
101.	 No author, Palestine Land Development Company (?), Central Zionist
Archives L/2/6289 old number L/18/127/2, Tayaha sections 3 and 5.
102.	 Kram, “The Naqab Bedouins,” in Amara et al., Indigenous, 138.
103.	 ISA, RG23/3865M, 30 November 1935.
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A Review Essay on Indigenous (In)justice • 73
104.	 Kram, “The Naqab Bedouins,” in Amara et al., Indigenous, 143.
105.	 16 June 1947, UNSCOP, verbatim record.
106.	 UNSCOP 16 June 1947.
107.	 Frantzman, Levin, and Kark, “Counting Nomads”.
108.	 Yiftachel, “Naqab/Negev Bedouins”, 292.
109.	 John Sheehan, “Applying an Australian Native Title Framework to Bedouin
Property,” in Amara et al., Indigenous, 229, 238.
110.	 Abu-Saad and Craemer, “Socio-Political Upheaval,” in Amara et al., Indigenous,
23.
111.	 Shmuel Katz, The Aaronsohn Saga (Jerusalem, 2007).
112.	 Abu-Saad and Craemer, “Socio-Political Upheaval,” in Amara et al., Indigenous,
26. Some argue it was 17,000 in 1950, Havatzelet Yahel and Ruth Kark,
“The Negev Bedouin during the 1948 War: Departure and Return,” Presentation,
Association of Israel Studies, Haifa, 2012.
113.	 Ibid., 27.
114.	 Ibid.
115.	 Jews only owned about 1.7 million dunams in Palestine in 1948, 6.59% of the
country. A Mandate map titled “Progress of Land Settlement” from 31 December
1945, shows that 4,808,500 dunams had been “settled”, about 18% of Palestine.
116.	 Amara and Miller, “Unsettling Settlements: Law, Land, and Planning in the
Naqab”, in Amara et al., Indigenous, 78.
117.	 Abu-Saad and Craemer, “Socio-Political Upheaval,” in Amara et al., Indigenous,
30.
118.	 Ibid.
119.	 See for instance S. Ilan Troen and Noah Lucas (eds.), Israel: The First Decade
of Independence (New York, 1995).
120.	 Author’s observation and field research 2008–2011.
121.	 Amara and Miller also mention the “option of resistance”, in Amara et al.,
Indigenous, 38.
122.	 Rashida Manjoo, “Continuum of Injustice: Women, Violence and Housing
Rights,” in Amara et al., Indigenous, 196, 207–8.
123.	 Marianna Jordan, “A Minority Within a Minority: Palestinian Arab Bedouin
of the Negev,” information brief, The Jerusalem Fund, 2009. http://www.the
jerusalemfund.org/ht/a/GetDocumentAction/i/31120.
124.	 Kram, in Amara et al., Indigenous, 148.
125.	 Author’s estimate based on dunams of Jewish municipalities and farms.
126.	 Amara and Miller, “Unsettling Settlements: Law, Land, and Planning in the
Naqab,” in Amara et al., Indigenous, 95.
127.	 Ibid.
128.	 Abu-Saad and Craemer, “Socio-Political Upheaval,” in Amara et al., Indigenous,
32.
129.	 Ibid.
130.	 Sarit Rosenbaum, “Over 25 percent of Children Overweight,” 1 January
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74  •  israel studies, volume 19 number 1
2013. The Health Ministry study showed that “Ultra-Orthodox and Bedouin,
Israel’s poorest populations,” also have unhealthy children. http://www.ynetnews
.com/articles/0,7340,L-4328372,00.html
131.	 Ibid., 216.
132.	 Ruth Kark and Seth J. Frantzman, “Empire, State and the Bedouin of the
Middle East, Past and Present: A Comparative Study of Land and Settlement
Policies,” Middle Eastern Studies 48.4 (2012): 487–510.
133.	 Erica-Irene A. Daes, Special Rapporteur, Commission on Human Rights,
Human Right of Indigenous Peoples: Indigenous People and their Relationship to Land,
Second Progress Report, U.N. Doc. E/CN.4/Sub.2/1999/18 (1999), http://www
.unhchr.ch/Huridocda/Huridoca.nsf/TestFrame/154d71ebbbdc126a802567c400
3502bf?
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