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Israel says Bedouin 'trespass' on state land. New study: Not so

Their ancestors bought land from the Turkish and British authorities, records show 

By Oren Yiftachel, Ahmad Amara and Sandy Kedar   1 January, 2014   Haaretz

Bedouin protesters take to the streets in Be'er Sheva to reject the Prawer plan. Photo by Ilan Assayag 

Who do the lands of the Bedouin Arab villages belong to? In the heated debate over the Prawer bill, which threatens to destroy and relocate many Bedouin villages in the Negev, the argument repeatedly has been made that these villages, which occupy a mere 3 percent of the Negev’s land, are trespassing on state land. Foreign Minister Avigdor Lieberman took his usual extreme stance accusing the Bedouin of “robbing our lands.” Is that so?

A comprehensive, first-of-its-kind study that we are conducting actually shows otherwise: that these lands never belonged to the state, and many of the Bedouin claims stand on firm historical and legal grounds. There is abundant evidence attesting to the recognition of Bedouin land ownership during the Ottoman and British eras, both in terms of traditional law and also formal land registration (known in Israel as "Tabu"). Most modern-day Bedouin villages sit on land the villagers inherited from their ancestors, who in turn inherited or bought it legitimately during the Turkish or British eras.

Any reasonable person would therefore conclude that the Bedouin are, in fact, not trespassers. And that is precisely what former Supreme Court Justice Eliezer Goldberg concluded in a report he submitted to the government in 2008, in which he advised recognizing these villages “insofar as is possible.” Clearly this doesn’t mean all Bedouin ownership claims are correct, but they must be examined on their own merits, not be rejected en masse.

The state is ignoring the history of Bedouin land and settlement. It claims the Bedouin had an opportunity to register their lands until April 1921, as required under the British Mewat Land Ordinance (the so-called “dead land” ordinance), but failed to do so, becoming trespassers. Is this claim credible? Our research refutes it.

Let’s begin with the issue of registration. Most of the Bedouin indeed didn’t register their lands in Israel's official land registry. But they weren’t alone. In May 1921, the Abramson Report was submitted to the British government, which noted that only 4.5 percent of the territory of the Land of Israel/Palestine had been registered; more than half of that was registered by Jewish organizations. In other words, almost none of the villages in the entire country bothered to register its land by the given deadline – yet only the Bedouin are being punished for that today, more than 90 years later.

Beyond the basic injustice of punishing grandchildren for their grandparents’ actions – and in a discriminatory manner, at that – it also seems the British, who enacted the “dead land” ordinance, drew conclusions from the lack of registration. They began a different process of registering land ownership that was based on the state’s own initiative, and used new legislation that made the “dead land” ordinance superfluous. As a result, the British did not appropriate even a single dunam of Bedouin land on the basis of its classification as “dead land.”

In the mid-1920s, the British began mapping and registering all cultivated, possessed and allocated land in the names of its traditional owners. The process was based on testimony from neighbors, tax documents and confirmation from community leaders, which was usually enough for the registrars, alongside the Ottoman registration or traditional contracts of sale. Only a few disputed cases reached the courts.

There is no doubt that if this process had reached the Negev before 1948, the cultivated and settled Bedouin land would have been registered in their names. But the British registered only about a fifth of the country, and never reached the Negev. Israel continued the registration process in most regions but, oddly, it was stopped in the Negev roughly 40 years ago, after more than 3,200 Bedouin filed claims to land that was mostly owned, cultivated or settled before 1948. It seems the state stopped the registration process because the Bedouin were a marginalized minority, and since then it has been trying to take ownership of the land. Today, claims to approximately 5 percent of the Negev’s land remain open, but even that small number has not deterred the state from attempting to nationalize what is left.

The attempt to nationalize the land has been based on what we call “the dead Negev doctrine,” which was drawn up as a response to Bedouin claims by a team from the Justice Ministry led by attorney Plia Albeck. (She became known later for her key part in legally facilitating Jewish settlement in the West Bank.)This doctrine states that until the British Mandate era, the Bedouin were nomads with no permanent localities or agriculture, so the land in the area was effectively 'dead.'

The state claimed that the lack of registration in 1921 rendered the land “dead” forever, regardless of its being settled or cultivated. In other words, the state dispossessed the Bedouin retroactively using a doctrine similar to the one Europeans used to take control over land in Africa, Asia and Australia. Owing to the Bedouins’ political and legal weakness, the “dead Negev doctrine” was never really challenged, enabling the creation of powerful legal precedents dispossessing the Bedouin, which are difficult to overcome in the Israeli legal system.

Yet our research, which includes the following three key points, shows that the claims on which the doctrine is based are false.

Bedouin agriculture: For centuries, the Bedouin cultivated large tracts of land. Of course, such cultivation required settlement, usually in small clusters of tents, together with an economy based on livestock. Travelers who passed through the area described at length Bedouin farming around Be’er Sheva. One such traveler was the British scholar Henry Baker Tristram, who in 1858 described the Be’er Sheva region as marked by "the cultivation of crops by Arabs in large fields". In 1883, British researcher Edward Hull also wrote that the Bedouin region is cultivated with immense crops of wheat, barley and maize.

Additionally, a report by the Zionist "Palestine Land Development Corporation" provides important details about the boundaries of ownership and extent of farming of all the Bedouin tribes in 1920 (a year before the “dead land” ordinance). Bedouin cultivation reached close to two million dunams in the northern Negev, utterly disproving the claim that the Negev was “dead." Likewise, aerial photographs from the 1940s clearly show that the Bedouin cultivated almost all the arable land in the northern Negev.

Recognition by the authorities: The previous regimes recognized traditional Bedouin ownership of the land. For example, the Ottoman Empire purchased the land for the establishment of Be’er Sheva from the Azazma tribe and paid for it in full. Those Bedouin who wished to do so registered thousands of dunams in their names during the Ottoman and British periods, and we have the land registry documents to prove it. How could the Bedouin register the land if it belonged to the state? In addition, Herbert Samuel, the high commissioner of Palestine, and Winston Churchill, who served as secretary of state for the colonies at the time, made official promises to the Bedouin in 1921 that the British would respect Bedouin traditional law. The Mandatory authorities appointed tribal courts to deal with Bedouin affairs, including land ownership.

The British also collected crop taxes in an orderly fashion, writing the names of thousands of Bedouin land owners and villages on their forms. In 1931, the British census classified 89 percent of the Bedouin as farmers, and in 1937, the high commissioner wrote to David Ben-Gurion, who had asked for a modest allocation of land for Jewish settlement: “[T]he cultivable land in the Beersheba sub-district is regarded as belonging to the Bedouins tribes by virtue of possession from time immemorial.”

Purchase by Jewish organizations: The purchase of large tracts of land from the Bedouin by Jews during the Mandate period provides further clear evidence of ownership by the sellers. The Jewish National Fund and other organizations bought more than 100,000 dunams of land, rendering the claim of the former, which denies Bedouin ownership today, particularly hypocritical.

Coincidentally, the land for Kibbutz Mishmar Hanegev and the land of the Al-Turi tribe (who live in the unrecognized village of Al-Araqib) were purchased in the same region and in the same year – 1926. The purchase of the kibbutz was recognized, while the village of Al-Araqib, accused of trespassing, was destroyed more than 50 times. The inequality speaks for itself.

Even in the first years of Israel’s independence, policy-makers had no doubt about the Bedouin ownership of the land. In 1953, for example, Yosef Weitz (who later became head of the Israel Land Authority), in his capacity as head of a government committee dealing with Bedouin land affairs, wrote: “During the Mandate period, large tracts of land were registered in the Bedouins’ names on the basis of proof that they cultivated them.... We must not avoid recognizing the Bedouins’ rights to the ownership of the land that they are proven to have cultivated.”

Therefore, the Prawer bill, which is based on the assumption that the Bedouin have no legal right of ownership over their land, should be buried, and the use of the distorted “dead Negev doctrine” should be stopped. But the main question here is not a legal one, but one of ethics, history and geography: Is it appropriate for the state to dispossess an indigenous population from its traditional holdings by means of legal acrobatics?

The state must grant infrastructure and development rights without conditioning them onland registration. This will end Bedouin suffering, resulting from generations of neglect.

The Regional Council of Unrecognized Villages of the Negev, together with the non-profit organizations Bimkom and Sidrah, have prepared a master plan that shows it is possible to recognize the villages according to professional criteria. This plan will lead to a quick, affordable, just and practicable solution in the Negev – certainly more than the forceful imposition of the Prawer Plan, which will cause terrible harm to Bedouin society. The proposed master plan will revive the “dead Negev” -- to the benefit of all its inhabitants.

The writers are researchers from academia who are assisting the plaintiffs in Bedouin land ownership cases currently before the Supreme Court.