/ 3Yahel, Kark, Frantzman: Negev Bedouin

Fabricating Palestinian HistoryAre the Negev Bedouinan Indigenous People?

by Havatzelet Yahel, Ruth Kark, and Seth J. Frantzman

In the last two decades, there has been widespread application of the term “indigenous”in relation to various groups worldwide. However, the meaning of this term and its uses tend to be inconsistent and variable. The expression derives from the interaction of

different cultures—the meeting between the original inhabitants of a specific region (knownvariously as “first nations,” “natives,” “indigenes,” or “aborigines”) and new, foreign “set-tlers” or “colonizers,” who imposed their alien value systems and way of life on the indig-enous populations.1

In Israel, the indigenousness claim has been raised over the past few years by thecountry’s Bedouin citizens, a formerly nomadic, Arabic-speaking group centered in thesouthern arid part of the country, the Negev. They argue that Israel denies their basicindigenous rights such as maintaining their traditions and owning their own lands.

Does this claim hold water? What are its implications for Israel as well as for othernations?

Havatzelet Yahel is a doctoral candidate at TheHebrew University of Jerusalem and an attorneyin the Israel Ministry of Justice. Ruth Kark is aprofessor at The Hebrew University of Jerusa-lem. Seth J. Frantzman is a post-doctoral re-searcher at The Hebrew University of Jerusalemand a fellow at the Jerusalem Institute of MarketStudies. The views expressed here are solely thoseof the authors.

INDIGENOUS RIGHTSIN THE

INTERNATIONAL ARENA

What is known today as international lawdeveloped in Europe from the seventeenth cen-

tury onward, parallel to the emergence of sover-eign nation states, with the objective of regulat-ing relations between these new entities. Tradi-tionally, international law made no mention ofgroup rights, which were considered a domesticconcern of the state.2

International law was reluctant to furthergroup rights for several reasons, among themconcern for the integrity of the state and fear ofseparatism that would undermine its stability.3

1 S. James Anaya, Indigenous Peoples in International Law, 2ded. (Oxford and London: Oxford University Press, 2004), p. 3.2 Natan Lerner, Group Rights and Discrimination in Interna-tional Law, 2d ed. (The Hague: Martinus Nijhoff Publishers andKluwer Law International, 2003), p. 112; Robbie Sabel and HilaAdler, eds., Mishpat Benleumy (Jerusalem: Sacher Institute, 2010),p. 241.

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Furthermore, group rights were considered con-tradictory to the concept of a modern state basedon a direct social contract between the citizenand the sovereign.

Over time, however, the idea of group rightsfor indigenous groups began to emerge. Indig-enous societies claimed that their position wasunique in view of the great damage to the inde-pendent political frameworks that they had main-tained from time immemorial, their subjugation to

a regime and lifestyle aliento their culture, and thelimitation of the physicalarea in which they wereforced to live. Their case,therefore, centered on re-voking this perceived in-justice and included de-mands to preserve sacredsites, traditional crafts,and customs as well as tohonor preexisting trea-

ties to the extent that such had been signed.These societies also insisted on their right toself-determination whether in the choice ofgroup members or in the wider sense of sover-eignty. The rights demanded were on behalfof the indigenous group and its common andcollective character.4

As far as the European colonizers wereconcerned, legal rights vis-à-vis both preex-isting populations and other colonizing na-tions were based on the doctrine of “discov-ery.” This maintained that sovereignty overand full ownership of a territory belonged tothe nation that discovered the new land.5

This doctrine was upheld multiple times by theUnited States Supreme Court in the nineteenthcentury, and courts of additional nations fol-lowed suit.6 In Australia, the British Crown usedthe argument of terra nullius (empty land, namelyan unoccupied territory with no sovereignty orrecognized system of rights) to justify its classifi-cation as crown land.7 However, beginning in theeighteenth century, it was conceded in courts ofvarious states that the population that lived in aterritory before the advent of the Europeans didpossess rights. Legal arguments focused on thequestion of whether, prior to the arrival of thecolonizers, a system of land rights already existedin a specific territory that had to be taken intoaccount, and if so, in what manner.8

Early attempts by indigenous peoples tobring their case before international forums be-gan in the 1920s.9 Their first successes, how-ever, came decades later when activity shiftedfrom domestic arenas to regional, and later, in-ternational organizations. On the internationallevel, the issue of indigenousness was advancedin three major frameworks. The first comprisedtwo covenants adopted by the InternationalLabor Organization, an affiliate of the UnitedNations: the Indigenous and Tribal PopulationsConvention of 1957 (No. 107), and later, the In-digenous and Tribal Peoples Convention of 1989(No. 169)10—neither of which was successfullyimplemented.

The second framework consisted of the ef-

The Declarationon the Rightsof IndigenousPeoples refers tothe land rights ofa collective body,not individuals.

3 Lerner, Group Rights and Discrimination, p. 111; Borhan U.Khan and Muhammad M. Rahman, “Protection of Minorities: ASouth Asian Discourse,” The European Academy of Bozen/Bolzano, Italy, 2009; Arif Dirlik, “Globalization, Indigenism,and the Politics of Place,” New Bulgarian University, anthropol-ogy dept., accessed Feb. 23, 2011; Ruth Gavison and Tali Balfur,“Zhuyot Kibutziot shel Miutim,” working paper, submitted tothe Constitutional Committee, Sept. 13, 2005.4 Patrick Thornberry, International Law and the Rights ofMinorities (Oxford: Clarendon Press, 1991), p. 335; Lerner, GroupRights and Discrimination, p. 115; Siegfried Wiessner, “Rightsand Status of Indigenous Peoples: A Global Comparative andInternational Legal Analysis,” Harvard Human Rights Journal,12 (1999): 99.

5 Robert J. Miller, “The Doctrine of Discovery,” in idem, et al.,Discovering Indigenous Lands: The Doctrine of Discovery in theEnglish Colonies (Oxford: Oxford University Press, 2010), p. 2.6 Johnson v. M’cintosh, 21 U.S. 543, 5 L.Ed. 681, 8 Wheat. 543(1823); Worcester v. State of Georgia, 31 U.S. 515 (1832); St.Catharine’s Milling and Lumber Company v. the Queen (Canada,1887); Mabo and Others v. Queensland (Aus.), no. 2, AU 1992,175 CLR1.7 Erica-Irene Daes, “Indigenous Peoples and their Relationship toLand,” UNE/CN.4/Sub.2/2001/21, U.N. Commission on HumanRights, Geneva, June 11, 2001, p. 11.8 See, for example, “Western Sahara, Advisory Opinion,” Interna-tional Court of Justice reports, The Hague, Oct. 16, 1975, p. 12.9 State of the World’s Indigenous Peoples, Secretariat of theUnited Nations Permanent Forum on Indigenous Issues, NewYork, p. 2, accessed Mar. 19, 2012.10 Indigenous and Tribal Peoples Convention of 1989, Interna-tional Labor Organization, Geneva, June 27, 1989; Lerner, GroupRights and Discrimination, p. 112.

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forts of organizations such as the WorldBank, which since the 1990s began tolist indigenous rights as an issue of con-cern in its dealing with countries, espe-cially in the Third World.11

The third framework was informalaction within various forums of the U.N.dealing with human rights. This in-cluded initiating conferences12 and pro-moting study of the topic. Beginningin 1971, the U.N. Economic and SocialCouncil (ECOSOC) conducted an ex-tensive study of the issue of nativepopulations.13 Carried out over a pe-riod of about ten years, the researchwas published in a series of reportssubmitted between 1981 and 1986. In1982, the U.N. Working Group on In-digenous Populations was established,charged with protecting native popu-lations and the development of inter-national standards relating to theirrights.14 A draft Declaration on the Rights of In-digenous Peoples (DRIP)15 was enjoined in 1985,and almost twenty years later in 2006, was finallysubmitted to the U.N. General Assembly andapproved the next year with the support of morethan 140 nations. Four nations that votedagainst it (the United States, Canada, Austra-lia, and New Zealand) eventually withdrew theiropposition. Israel did not participate in the vot-ing.16 During this time, the assembly declared1995-2004 to be the “International Decade ofthe World’s Indigenous Peoples” and estab-lished a permanent forum on this issue within

the framework of the Subcommission on Pre-vention of Discrimination and Protection ofMinorities.17 The assembly declared a seconddecade on December 20, 2004.18

Much of the delay in presenting DRIP cen-tered on differences of opinion related to the con-cept of sovereignty19 as well as the definition ofindigenous.20 Since no consensus was reachedon this crucial definition, the problem was cir-cumvented by deleting it from the draft.21 Numer-ous countries, mainly from Asia and Africa, madequalifying statements regarding their support for

Yahel, Kark, Frantzman: Negev Bedouin

11 “Operational Directive: Indigenous Peoples,” The WorldBank Operational Manual, 4.20, Sept. 1991, pp. 1-6.12 See, for example, Conference on Discrimination against In-digenous Peoples of the Americas, Geneva, 1977; World Councilof Indigenous Peoples, Kiruna, Sweden, 1977; State of the World’sIndigenous Peoples, accessed Mar. 19, 2012.13 “The Problem of Indigenous Population,” ECOSOC Res.1589 (L), 50th Session Supplement, no.1, U.N. Doc. E/5044,May 21, 1971, p. 16.14 Robert A. Williams, Jr., “Frontier of Legal Thoughts III:Encounters on the Frontiers of International Human Rights Law:Redefining the Terms of Indigenous Peoples’ Survival in theWorld,” Duke Law Journal, Sept. 1990, p. 676.15 Lerner, Group Rights and Discrimination, p. 115.16 Ha’aretz (Tel Aviv), Oct. 2, 2007.

17 U.N. General Assembly resolution 48/63, New York, Dec.21, 1993; U.N. General Assembly resolution 49/214, New York,Dec. 23, 1994.18 U.N. General Assembly resolution 59/174, New York, Dec.20, 2004.19 Anaya, Indigenous Peoples, p. 97.20 Sarah Pritchard, “Working Group on Indigenous Population:Mandate, Standard-setting Activities and Future Perspectives,”in Sarah Pritchard, ed., Indigenous Peoples, the United Nationsand Human Rights (London: Zed Books and Leichhardt: Federa-tion Press, 1998), p. 43; Wiessner, “Rights and Status of Indig-enous Peoples,” p. 99; Lerner, Group Rights and Discrimina-tion, p. 112.21 John A. Mills, “Legal Constructions of Cultural Identity inLatin America: An Argument against Defining ‘IndigenousPeoples,’” Texas Hispanic Journal of Law and Policy, Mar.2002, p. 57.

Far from being the indigenous inhabitants, the Bedouinwere relative latecomers to the Negev, preying on thevillages and caravansaries that dotted the sparselypopulated wilderness. Here, a Bedouin family is picturedin the early 1900s.

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the declaration. Indonesia for example, with itshodgepodge of ethnicities and languages, arguedthat “the rights in the Declaration accorded exclu-sively to indigenous people and did not apply inthe context of Indonesia.”22 A more restricted view

of indigenousness hadbeen articulated as early as1999 by Miguel AlfonsoMartinez, then specialrapporteur of the U.N.Working Group on Indig-enous Populations. Hisview is consistent with aconcept that indigenous-ness is relevant to coun-tries where there is a “two-stage model” of first in-

habitants and colonizers and is less relevant orcompletely irrelevant in an environment of multi-stage historical development.23

The final version of the Declaration on theRights of Indigenous Peoples, adopted in 2007,also did not include a definition of an indigenouspeople, mainly because the relevant U.N. bodieswere unable to agree on the matter.24 This has con-tributed to the low level of de facto implementationof the declaration among U.N. member states.

WHAT IS ANINDIGENOUS PEOPLE?

Despite the absence of a universally accepteddefinition, DRIP manages to shed some light onthe question of what an indigenous people is: aseparate political entity with unique characteris-tics within the framework of the state. Accordingto its articles, such entity or nation has the sov-ereign right to determine the structure of its in-stitutions, its identity, and its membership.25

Moreover, the declaration differentiates betweenrights accruing to individuals and to the collec-tive body; articles dealing with land rights referonly to the rights of indigenous peoples as acollective body, not as individuals.

Based on this declaration and the existingliterature,26 a list of recurring parameters of indig-enousness can be established:

• Original inhabitants: Indigenes are de-scendants of the people who were first ina particular territory.27

• Time duration: Indigenous people havelived on the land “from time immemo-rial”—thousands, and even tens of thou-sands of years. The Australian aborigi-nes, for example, have lived in their terri-tory for anywhere between 40,000 and60,000 years while Native Americansclaim a history of thousands of years.Another related attribute is that indig-enous people were on the land beforenewcomers arrived.28

• Pre-colonial sovereignty.

• Experience of oppression by a for-eign culture and legal regime. Whilemany groups may sense having beingoppressed, oppression in this contextrefers to “colonialism or something likecolonialism.”29

• Group attachment to land: Indigenouspeoples maintain a unique, common rela-tionship of a spiritual nature with the landon which they live or have lived.30 This

22 U.N. media release, New York, Sept. 13, 2007.23 Miguel Alfonso Martinez, “Human Rights of IndigenousPeople: Study on Treaties, Agreements and Other ConstructiveArrangements between States and Indigenous Populations,” 1999,E/CN.4/Sub.2/1999/20, paras. 78, 91.24 United Nations Declaration on the Rights of IndigenousPeoples, G.A. Res. 61/295, U.N. doc. A/RES/61/295, Sept. 13,2007.25 Ibid., arts. 33, 35.

26 See, for example: José R. Martinez Cobo, “Study of theProblem of Discrimination against Indigenous People,” 1987,UN E/CN.4/Sub.2/1986/7/Add.4, p. 29; Ronald Niezen, TheOrigins of Indigenism: Human Rights and the Politics of Identity(Los Angeles: University of California Press, 2003), p. 19;Wiessner, “Rights and Status of Indigenous Peoples,” p. 60.27 David Maybury-Lewis, Indigenous Peoples, Ethnic Groups,and the State, 2d ed. (Boston: Allayn and Bacon, 2002), p. 6;U.N. Conference on Environment and Development, Rio de Janeiro,June 13, 1992, U.N. Doc. A/CONF.151q/26 (vol. 3) at 16 annex2 (1992), chap. 26, quoted in Anaya, Indigenous Peoples, p. 315.28 Anaya, Indigenous Peoples, p. 5.29 Ibid.30 Daes, “Indigenous Peoples,” p. 9.

Jewish attachmentto the land fromthe Negev to theGolan Heightspredates Arabpresence thereby millennia.

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is often reflected in the be-lief that land is a gift to thatpeople from God.31

• Distinct, non-dominant(marginalized) populations.

• Separate customary, cul-tural, economic, social, andpolitical institutions.

• Self-identification andrecognition by others asindigenous.

An important differentiationbetween indigenous peoples andminorities is connected to thoseparameters that relate to the his-torical dimension such as “firstnationhood” or former (i.e., pre-colonial) sovereignty on thesoil.32 While such a distinctionhas recently been challenged (pri-marily by groups in Africa forwhom proving the historical connection is prob-lematic),33 it is important to maintain the differ-ence. In fact, a crucial differentiation betweenminority rights and indigenous rights is that mi-nority rights are formulated as individual rightswhereas indigenous rights are collective.34 Thisdistinction, as well as the articles incorporatedinto DRIP, has a particular relevance to the claimsof the Negev Bedouins.

THE NEGEV’S“FIRST PEOPLE”

In the past few years, the Bedouin of Israel’sNegev have begun claiming the status of an in-digenous people, arguing that Israel like othercolonialist regimes dominated their territory, re-fused to admit their lengthy presence in their na-tive land, and denied their rights.35 This line ofargument is consistent with the position of theArab leadership, voiced as early as the early 1920s,that disparaged the Jewish national revival as analien, colonial intrusion into the pan-Arab patri-mony. These arguments are both erroneous and

Yahel, Kark, Frantzman: Negev Bedouin

31 Andrew Erueti, “The Demarcation of Indigenous Peoples’Traditional Lands: Comparing Domestic Principles of Demarca-tion with Emerging Principles of International Law,” ArizonaJournal of International and Comparative Law, 23 (2006): 544;Ruth Kark, “Land-God-Man: Concepts of Land Ownership inTraditional Cultures and in Eretz Yisrael,” in Alan R.H. Bakerand Gideon Biger, eds., Ideology and Landscape in HistoricalPerspective (Cambridge: Cambridge University Press, 1992),pp. 63-82.32 Lerner, Group Rights and Discrimination, p. 113; Thornberry,International Law and the Rights of Minorities, p. 331.33 Dorothy L. Hodgson, “Becoming Indigenous in Africa,”African Studies Review, 3 (2009): 7.34 Indigenous Peoples in Africa: The Forgotten Peoples? TheAfrican Commission’s Work on Indigenous Peoples in Africa(Banjul, Gambia: African Commission on Human and Peoples’Rights and Copenhagen: International Work Group for Indig-enous Affairs, 2006), p. 13.

35 For general and Bedouin-related arguments, see GeremyForman and Alexandre Kedar, “Colonialism, Colonization, andLand Law in Mandate Palestine: The Zor al-Zarqa and BarratQisarya Land Disputed in Historical Perspective,” TheoreticalInquiries in Law, 4 (2003): 496-534; Aref Abu Rabia, “Displace-ment, Forced Settlement and Conservation,” in Dawn Chatty andMarcus Colchester, eds., Conservation and Mobile IndigenousPeoples: Displacement, Forced Settlement, and Conservation(London: Berghahn, 2002), pp. 202-11; Oren Yiftachel, “LikratHakara Be-kfarey Ha-Beduim Tihnun Metropolin Beer-Sheva mulVaadat Goldberg,” Tichnun, 11 (2009): 56-71.

Bedouins vote in the 1951 elections for the second Knesset.While the Negev Bedouin may be at the lower end of Israel’ssocioeconomic strata, attempts have been made since thebeginnings of the modern state to incorporate and integratethem into Israel’s multiethnic society.

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misleading. To begin with, the Bedouin are by nomeans the only people who can lay claim to thenotion of being a “first people” in Palestine: Jew-ish attachment to the land predates Arab pres-ence there by millennia. Indeed, of the countlessgroups that have lived in Palestine since antiq-uity, Jews are the only nation that can claim anuninterrupted presence on the land from biblicaltimes to date—for a significant amount of the timeas its rulers.

About three millennia ago, a kingdom of Is-rael was established inthe landmass from theNegev in the south to theGolan Heights in thenorth. At one stage, itwas split into two king-doms: Israel and Judah.The northern kingdom ofIsrael was conquered byAssyria in the eighth

century B.C.E., and a portion of its populationwas exiled. The southern kingdom of Judah,which exercised sovereignty over the Negev,continued to exist until it fell in the sixth cen-tury B.C.E. to the Babylonians, who exiled aconsiderable segment of the populace. TheBabylonian Empire was soon, thereafter, con-quered by the Persians, who allowed the exiledJews to return to their homeland in 538 B.C.E. Inaddition to the returning Jews, the land waspeopled at this time by Idumeans (Edomites), theremnant of the Philistines, Samaritans (a mixtureof Israelites and Assyrian colonists), and someArab groups, likely the ancestors of those whowould come to be called the Nabateans.

Over the course of approximately four cen-turies, the country was under the control of vari-ous non-Jewish rulers, but from 141-63 B.C.E.,the sovereign Jewish kingdom of the Hasmoneandynasty was established, eventually fallingwithin the sphere of Rome, which ruled it withsome minor hiatus for the next seven centuries.With the Muslim conquest of the seventh cen-tury C.E., there began an increased movement ofArab tribes into the area. Over the next nine cen-turies, various foreign Muslim and non-Muslimoccupiers controlled the land, culminating in theOttoman conquest in 1517.36

Since its advent in the seventh century, Is-lam constituted the organizing principle of thesociopolitical order underpinning the long stringof great Muslim empires.37 Islamic principles be-came the framework that brought Arab tribes to-gether, served as a unifying force for social orga-nization, and invested the empire with politicallegitimacy with the sultan-caliph recognized asthe religious and temporal head of (most of) theworld Muslim community.38 Tribal lifestyle and cus-toms also became an integral part of the systemsof government and law.39 Courts were establishedthroughout the empire that passed judgment ac-cording to Shari‘a (Islamic law), an Ottoman landlaw formalized in 1858, and other civil jurisprudencecodified in 1876 as the Ottoman Mejelle.40

During World War I, Britain took control ofthe land and in 1922 was appointed the manda-tory administrator for Palestine by the League ofNations with the specific goal of facilitating theestablishment of a Jewish national home in Pales-tine as envisaged by the Balfour declaration. TheBritish Mandate in Palestine continued utilizingmost of the existing Ottoman legal system, in-cluding laws related to land.41 With the estab-lishment of Israel, the Provisional State Council(the temporary parliament antecedent to theKnesset) enacted the Law and AdministrationOrdinance of 1948 that maintained the existinglegal system with its roots in Ottoman law.42

Thus, in contrast to colonies in which West-ern powers imposed a foreign legal system, in

36 Moshe Gil, A History of Palestine, 634-1099 (Cambridge:Cambridge University Press, 1997), pp. 23-40.37 Efraim Karsh, Islamic Imperialism: A History (New Haven:Yale University Press, 2006), pp. 9-20.38 Ira M. Lapidus, “Tribes and State Formation in IslamicHistory,” in Tribes and State Formation in the Middle East,Philip S. Khoury and Joseph Kostiner, eds. (London and NewYork: I.B. Tauris, 1991), pp. 42, 44.39 Abraham Sochowolski, Adam—Adama Mishpat—Safa (TelAviv: Hagigim, 2001), p. 74.40 Pliah Albek and Ran Fleisher, Diney Mekarkein Be-Israel(Jerusalem: Albek and Fleisher, 2005), p. 7; Daniel Friedmann,“The Effect of the Foreign Law on the Law of Israel: Remnants ofthe Ottoman Period,” Israel Law Review, 10 (1975): 196.41 Bernard Joseph, “Palestine Legislation under the British,”Annals of the American Academy of Political and Social Science,164 (1932): 39-46.42 Law and Administration Ordinance, Provisional Council ofState, Tel Aviv, May 19, 1948.

For the Jewishpeople, MandatePalestine wasits ancestralhomeland.

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Mandate Palestine, and later Israel, the judicialsystem that developed over the years wasgrounded in the norms of tribal life and the Mus-lim population. More important, neither the Brit-ish nor the Israelis considered the land terra nul-lius to which the old European doctrine of dis-covery applied for the simple reason that it wasneither “empty” nor “discovered.” As far as theJewish people was concerned, Mandate Pales-tine was its ancestral homeland, and it was thegeneral recognition of this fact that underlay theLeague of Nations’ mandate for the establishmentof a Jewish national home there.

THE NEGEV BEDOUIN

Until the twentieth century the Bedouin ofthe Middle East, including those of the Negev,were livestock-raising nomads whose movementswere dictated by a constant search for pastureand water.43 It has long been noted that what char-acterizes the Bedouin is their relationship to thetribe, rather than to a specific place or territory.44

Among the Bedouin tribes living in the Negevtoday, most view themselves as descendants ofnomadic tribes from the Arabian Peninsula.45 Infact, most of them arrived fairly recently, duringthe late eighteenth and the nineteenth centuries,from the deserts of Arabia, Transjordan, Sinai,and Egypt.46 Part of this migration occurred inthe wake of Napoleon’s invasion of Egypt andPalestine in 1798-99 and subsequent Egyptian ruleunder Muhammad Ali and his son Ibrahim Pasha(r. 1831-41). During this period, Egyptian forcesmoved through Sinai and into the Negev using

the coastal road that runs through Rafah, accom-panied by numerous camp followers, peasants,and Bedouin. Some of the Egyptian peasants whofollowed in the footsteps of the army establishednew settlements and neighborhoods in Palestine,others joined Bedouin tribes in the Negev.47

Ottoman tax registers demonstrate that thetribes which lived in the Negev in 1596-97 are notthose residing there today.48 According to his-torians Wolf-Dieter Hütteroth and KamalAbdulfattah, the tax registers that reflect mate-rial collected in those years show names of forty-three Bedouin tribes living in what became Man-datory Palestine, including six in the Negev.There is not much information on what becameof those tribes.49 However, the names of thetribes currently living in the Negev do not ap-pear on the tax registers from 1596.50 The Otto-man government did notmaintain reliable recordsfor this area after 1596, sothese registers are thebest indicators of whichtribes existed in the earlyOttoman period. ClintonBailey, a scholar of Be-douin culture, also foundno evidence in the thir-teenth and fourteenthcenturies of the conti-nuity or existence ofBedouin tribes, whichlater lived in the Negev in the eighteenth andnineteenth centuries.51

Bedouin consolidation of their Negev foot-hold was achieved through armed intertribalstruggles as well as raids on established Arab

Yahel, Kark, Frantzman: Negev Bedouin

43 Emanuel Marx, “The Tribe as Subsistence Unit: NomadicPastoralism in the Middle East,” American Anthropologist, June1977, p. 345.44 Clinton Bailey, Ha-Beduim (Sede-Boqer: Midreshet Sede-Boqer, 1969), pp. 1, 6.45 Toviyah Ashkenazi, Ha-Beduim Be-Eretz Yisrael (Jerusalem:Reuben Mass Publishing House, 1957), p. 30; Joseph Ben-David, Ha-Beduim Be-Yisrael—Hebetim Hevratiyim Ve-Karkaiim(Jerusalem: Jerusalem Institute of Israel Studies, 2004), pp. 36,57-9, 424-81; Reuven Aharoni, The Pasha’s Bedouin (Londonand New York: Routledge, 2007), pp. 30-1.46 Moshe Sharon, “Ha-Beduim Be-Eretz Yisrael Bameot Ha-Shmone Esre Ve-Ha-Tsha-Esre,” M.A. thesis, The Hebrew Uni-versity of Jerusalem, 1964, pp. 21-4.

47 Gideon M. Kressel and Reuven Aharoni, “Masaey UhlusimMemitzrayim La-Levant Bameot Ha-19 Ve-Ha 20,” Jama’a, 12(2004): 206-45; telephone interview with Gideon Kressel, Mar.8, 2012.48 Wolf-Dieter Hütteroth and Kamal Abdulfattah, HistoricalGeography of Palestine, Transjordan and Southern Syria in theLate 16th Century (Erlangen: Palm and Enke, 1977), p. 3.49 Ibid., pp. 51-3.50 Ibid.51 Clinton Bailey, “Dating the Arrival of the Bedouin Tribes inSinai and the Negev,” Journal of the Economic and Social His-tory of the Orient, 28 (1980): 21-4; idem, “The Negev in the19th Century,” Asian and African Studies, 14 (1980): 42, 45.

The Bedouintribes in theNegev today viewthemselves asdescendants ofnomadic tribesfrom the ArabianPeninsula.

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settlements that caused the latter’s demise.52

Although the nomads depended upon sedentarypopulations for survival, they looked down uponthem while settled Arabs viewed the Bedouin asopportunists or worse, as cruel robbers.53 Nu-merous authors have documented the Bedouinrole in conquering the Negev as well as the plun-dering and expulsion of settled Arabs from otherparts of Palestine.54 British surveyor and arche-

ologist Claude R. Conder,writing in the 1880s, de-scribed a situation of un-ending war between theBedouin tribes and thesettled villagers.55

Nomadism continuedin Palestine until the begin-ning of the twentieth cen-tury when a transition tosemi-nomadic life and settle-ment took place.56 Concur-rently, there was a gradualshift in the manner in whichthe Bedouin related to theland, from common exploi-tation for grazing by allmembers of the tribe to pri-vate use.57 Simultaneously,there was a gradual transi-tion from animal husbandryto agriculture.58 By 2000,animal husbandry was prac-

ticed by only about 10 percent of the Bedouin,and many of the younger generation have ex-pressed reservations about maintaining their par-ents’ lifestyle.59

Prior to the establishment of Israel therewere about 65,000 Negev Bedouin. During the1948 war and in its immediate aftermath, mostleft for neighboring states, reducing the NegevBedouin population to about 11,000.60 Sincethen, however, numbers have dramatically in-creased to almost 200,000 persons in 2011. Therehas also been significant improvement in edu-

Bedouin tents, Tel Megiddo, Israel, 2005. Until the twentieth century,the Bedouin of the Middle East, including those of the Negev, werelivestock-raising nomads whose movements were dictated by aconstant search for pasture and water. What characterizes theBedouin is their relationship to the tribe, rather than to a specificplace or territory.

52 Sharon, “Ha-Beduim Be-Eretz Yisrael,” p. 49; Joseph Ben-David, “Od Al Ha-Konflict Ha-Karkai bein Beduei Ha-NegevLevain Ha-Medina,” Karka 44 (1998): 64; Emanuel Marx, Ha-Hevra Ha-Beduit Ba-Negev (Tel Aviv: Reshafim, 1974), p. 15;Emanuel Marx, Bedouin of the Negev (Manchester: ManchesterUniversity Press, 1967), p. 7.53 Anatoly M. Khazanov, ed., Nomads and the Outside World,2nd ed. (Madison: University of Wisconsin Press, 1994), p. 199;Aref al-Aref, Bedouin Love Law and Legend: Dealing Exclusivelywith the Badu of Beersheba (Jerusalem: Cosmos, 1944; repr.1974), p. 202; Ben-David, Ha-Beduim Be-Yisrael, p. 17; Hütterothand Abdulfattah, Historical Geography, p. 11.54 Avraham Granovski, Ha-Mishtar Ha-Karkai Be-Eretz Yisrael(Tel Aviv: Dvir, 1949), p. 32; David H.K. Amiran, “The Patternof Settlement in Palestine,” Israel Exploration Journal, 3 (1953):69; see, also, Hütteroth and Abdulfattah, Historical Geography,p. 62; Muhammad Yusuf Sawaed, “Ha-Beduim Be-Eretz YisraelBein Ha-Shanim 1804 and 1908,” M.A. thesis, Bar-Ilan Univer-sity, Ramat Gan, 1992, p. 147-9; Eliahu Epstein, “Bedouin ofthe Negeb,” Palestine Exploration Fund Quarterly, 71 (1939):59-78.

55 Claude R. Conder, Tent Work in Palestine (London: A. PWatt, 1895), p. 271.56 Ashkenazi, Ha-Beduim Be-Eretz Yisrael, p. 23; Marx, “TheTribe as a Unit of Subsistence,” p. 348.57 Avinoam Meir, “Hithavut Ha-Teritorialiyut Be-Kerev BedveyHa-Negev Bama’aver Me-Navadut le-Hityashvut Keva,” MehkarimBe-Geographiya shel Eretz Yisrael, 14 (1984): 76.58 Gideon M. Kressel, Joseph Ben-David, and Khalil Abu-Rabi’a, “Changes in the Land Usage by the Negev Bedouin sincethe Mid-19th Century: The Intra-Tribal Perspective,” NomadicPeople, 28 (1991): 29.59 A. Allan Degen, Roger W. Benjamin, and Jan C. Hoorweg,“Bedouin Households and Sheep Production in the Negev Desert,Israel,” Nomadic People, 1 (2000): 130, 142.60 H. V. Muhsam, “Sedentarization of the Bedouin in Israel,”International Social Science Journal, 4 (1959): 542.

/ 11

cation and in health indices among IsraeliBedouin. However, when compared with othergroups in Israeli society, including urban and ru-ral Arabs, they remain at the lowest socioeco-nomic level.61

In the 1970s, about 3,000 Bedouin filedclaims demanding that Israel recognize their fullprivate ownership of hundreds of thousands ofdunams of land in the Negev (1 dunam=1000m2), including the right to sell. Israeli courts,basing their decision on Ottoman and Britishlaw, have consistently refused to sanction theBedouin claims. The courts have decreed thatthe lands claimed were never allocated for pri-vate use, and that they are of the category ofmewat (defined by the Ottoman land law as thearea of waste land that lies beyond the carry ofthe human voice when uttered from the nearesthabitation). It is public land and cannot be as-signed as privately owned.62 Currently, there areno claims before Israeli courts for collective landrights, and there is no expressed interest in landfor collective grazing or for the maintenance ofnomadic traditions.

ARE THE NEGEVBEDOUIN INDIGENOUS?

While there is no universally agreed-upondefinition of indigenous, do the Bedouin of theNegev fit the previously outlined parameters forwhat constitutes an indigenous people? Usingsuch criteria, the answer is an unequivocal No:

• Original inhabitants. Many groups pre-ceded the Bedouin in Palestine in generaland in the Negev in particular, includingthe Jewish people, which has maintaineduninterrupted presence in the land since

biblical times. Hence, the Bedouin canhardly claim to be the country’s originalinhabitants.

• Time dimension. This requires a lengthypresence in a territory—the so-called “timeimmemorial” parameter. But the NegevBedouin have been there for only two cen-turies. Nor can they claim presence in theland before the arrival of the foreign poweras the imperial Otto-man presence therepredated that of theBedouin by centu-ries. By contrast, theJewish presence inPalestine fully corre-sponds to the “fromtime immemorial”parameter.

• Sovereignty. In the case of the NegevBedouin, they were never sovereign in thearea. When they arrived, the Negev wasalready under Ottoman rule, before com-ing under British, then Israeli sovereignauthority.

• Oppression by a foreign culture andlegal regime. It was, in fact, the Bedouinwho imposed themselves on establishedsettlers in the Negev, displacing them anddestroying their villages. The OttomanMuslim order, which they confrontedupon arrival, was similar to what they hadexperienced in the other parts of the em-pire from which they migrated to Pales-tine. Britain was indeed a foreign power,but it never attempted to colonize Pales-tine as its presence there was transitoryfrom the start in line with the League ofNations mandate. As for the Jews, farfrom being colonial intruders, they weredescendants of the country’s ancient in-habitants, authorized by the internationalcommunity—as represented by theLeague of Nations—to reestablish theirindependence in the ancestral homeland.

• Unique spiritual relationship to the ter-

Yahel, Kark, Frantzman: Negev Bedouin

There is noevidence of long-standing Bedouintraditions relatingto the Negev.

61 Eliezer Goldberg, et al., Din Ve-Heshbon Ha-Vaada Le-Hatzaat Mediniut Le-Hasdarat Hityashvut Ha-Beduim Ba-Negev(Jerusalem: Medinat Israel, 2008), p. 39.62 Hawashla ve-Aherim Neged Medinat Yisrael ve-Aherim,Court of Appeal, 21 8/74, 38(3) P.D. 141; Justice Tute, “TheLaw of State Lands in Palestine,” Journal of Comparative Legis-lation and International Law, 3rd series, 4 (1927): 165-82.

12 / MIDDLE EAST QUARTERLY SUMMER 2012

ritory. While nomadic life, by definition,precludes permanent attachment to spe-cific territory, pastoral lands do becomea significant element in Bedouin life giventheir importance for tribal subsistence.Furthermore, even today, control of anarea is a matter of honor among theBedouin, and any challenge to this con-

trol, however legiti-mate or legal, is con-sidered an insult.63

Nonetheless, there isno evidence of long-standing Bedouin tra-ditions relating to theNegev, a logical situa-tion considering theirfairly short presence

there and nomadic lifestyle, and they lookto the Arabian Peninsula as their histori-cal homeland.

Moreover, the Bedouin are not cur-rently asking for collective land rights,rather all their claims are formulated on anindividual basis (overwhelmingly by maleswith almost total exclusion of women), de-manding the right of individuals to sellland and transfer it to a third party.64 Theseprivate demands are not congruent withthe spiritual dimension parameter andeven contradict it, which leads to the con-clusion that the main Bedouin aspirationsare for private gain and have no real col-lective element relevant to a campaign forrecognition as indigenes.

• A minority with an identity differentfrom that of the general population. TheBedouin are, without doubt, a small mi-nority in Israel, not only of the entire popu-lation but even within the country’s Arabcitizens. Indeed, until the middle of theMandate period, the Bedouin were con-

sidered by the Palestinian Arab peasantsas their enemies.65

Recently there have been signs of anabandonment of an independent Bedouinidentity and the gradual adoption of a Pal-estinian Arab identity accompanied by in-creasing involvement in Muslim funda-mentalism.66 A 2003 study concluded thatthe Bedouin should no longer be consid-ered a “society unto themselves” and thattheir identity today is Palestinian Arab,lacking any common tribal element, and isin the process of being shaped anew. Itfurther claimed there was an ulterior mo-tive behind the long-standing categoriza-tion of a separate Bedouin identity: to ne-gate the national Palestinian Arab iden-tity.67 The last conclusion, however, fliesin the face of historical evidence, ignoringthe unambiguous Ottoman view of theBedouin as a separate group, long beforethe advent of confrontation between theArab and Jewish populations of Palestine.

• A group with separate economic, so-cial, cultural, and political institutions.In the past, Bedouin tribes behaved asseparate units with an accepted leader-ship in the person of tribal sheiks. Tribeshad a system of customs that governedall aspects of life, and each of them was anindependent economic and social group;occasionally several tribes would join to-gether politically to form a confederation.Today, the situation has changed dramati-cally. Studies attest to a significant weak-ening of the framework that handled tribalaffairs and of tribes’ ability to come to de-cisions acceptable to all individuals. In-stitutions that formerly made decisionswithin the tribe or in intertribal relationsno longer exist today.68

Customary law and values necessary

63 Aref al-Aref, Toldot Be’er Sheva Ve-Shvateha: Shivtey Ha-Beduim Bemahoz Be’er Sheva (Jerusalem: Ariel, 2000), photo-copy of first edition, Tel-Aviv: Bustenay, 1937, p. 273.64 See the statement of Hussein el-Rifaaya to the committeeheaded by Justice Goldberg, Goldberg et al., Report, session ofFeb. 7, 2008.

65 Conder, Tent Life, p. 71.66 Ben-David, Ha-Beduim Be-Yisrael, pp. 21, 29.67 Musa el-Hujeirat, “Ha-Zehut Ha-Kolektivit Shel Ha-BeduimBe-Eretz Yisrael,” Reshimot Be-Nose Ha-Beduim, 35 (2003): 6.68 Ben-David, Ha-Beduim Be-Yisrael, p. 21.

No other Bedouintribe in the entireMiddle East hasraised a claim toindigenousness.

/ 13Yahel, Kark, Frantzman: Negev Bedouin

when the Bedouin were nomads, such asmutual responsibility, are no longer rel-evant.69 It would seem that today one can-not speak of Bedouin tribes in the Negev,alone or in confederation, as an opera-tional administrative framework. The endof nomadism and the transition to perma-nent settlements during the past centuryhave done away with identification of thetribe as a separate economic entity. To-day, every household has its own occu-pation as part of the general economy, andthere is no universally acceptable authori-tative leadership. Nor are there conse-quential political frameworks whose deci-sions are accepted by all even in areasthat are of primary importance to indig-enous peoples, such as lands. Decisionsrelating to land are taken only by individu-als; any declaration in the name of the tribeor in the name of the Bedouin is, there-fore, not legitimate. There have been nodemands by individual Bedouins to sub-ordinate themselves once again to an in-ternal, independent tribal framework. Theopposite is the case: The tendency todayis to increase individual rights. Authoritythat formerly rested with the sheik vis-à-vis his tribe, including matters relating toland usage, was abrogated after membersof the tribe claimed that such authoritywas superfluous and that the sheiks ex-ploited it to further their own interests atthe expense of ordinary tribesmen. Despitethe disappearance of an authority to man-age and operate tribal matters, and the ab-sence of tribal political frameworks, spe-cific customs and traditions continue to ex-ist as part of Bedouin customary law, butmainly in certain spheres of personal andfamily life such as marriage and inheritancerights.70

• The group identifies itself, and is viewedby others, as an indigenous people in theterritory. As has been demonstrated, theBedouin claim to indigenousness is verynew, having been raised for the first timeonly a few years ago.71 Earlier studies didnot report that the Negev Bedouin considerthemselves as such,nor did the research-ers make the claimthat they were anindigenous people.Since Bedouin tribesin other Middle East-ern countries havenever claimed indig-enousness, the valid-ity of this claim by theNegev Bedouin isdoubtful. Are the Bedouin somehow in-digenous only in relation to the Negevbut not in their homeland—Arabia—orin other Middle Eastern countries inwhich they abound?72 Even parts of thesame tribes as those in the Negev thatlive elsewhere, for example, in the Sinai,do not claim indigenousness in theircountries of residence.

CONCLUSIONS

Although there is no official definition ofindigeneity in international law, Negev Bedouincannot be regarded as an indigenous people inthe commonly accepted sense. If anything, the

69 Ibid., pp. 335-6, 352.70 Khalil Abu Rabia, Shlosha Maagalim Badin: Ha-KonflictBein Ha-Minhag Ha-Bedvi, Hukey Ha-Sharia Ve-Hok MedinatYisrael (Beersheba: Ben-Gurion University of the Negev, 2011),pp. 13-4; Clinton Bailey, Bedouin Law from Sinai and theNegev: Justice without Government (New Haven: Yale UniversityPress, 2009), pp. 300-1.

71 Alexandre Kedar, “Land Settlement in the Negev in Interna-tional Law Perspective,” Adalah’s Newsletter, Dec. 2004, pp. 1-7; Elana Boteach, “The Bedouins in the Negev as an IndigenousPopulation: A Report Submitted to the UN Working Group onIndigenous Populations,” The Negev Coexistence Forum News-letter, Beersheba, Sept. 2005, p. 2; Ismael Abu Saad, “TheEducation of Israel’s Negev Bedouin: Background and Pros-pects,” Israel Studies, 2 (1997): 21-39; “Off the Map,” HumanRights Watch, New York, Mar. 30, 2008, pp. 78-80; JamesAnaya, “Report by the Special Rapporteur on the rights of indig-enous peoples,” A/HRC/18/35/Add.1, Aug. 22, 2011.72 See Seth Frantzman, Havatzelet Yahel, and Ruth Kark, “Con-tested Indigeneity: The Development of an Indigenous Discourseon the Bedouin of the Negev, Israel,” Israel Studies, Spring 2012,pp. 78-105.

Bedouininstitutions thatformerly madedecisions withinthe tribe or inintertribal relationsno longer exist.

14 / MIDDLE EAST QUARTERLY SUMMER 2012

Bedouin have more in common with the Euro-pean settlers who migrated to other lands, com-ing into contact with existing populations withoften unfortunate results for the latter.

Moreover, rather than suffering an alien im-position on their indigenous way of life, theBedouin migrated mainly from one part of theOttoman Empire to another, governed by thesame system of administration and legislationwith which they were familiar and which the Brit-ish and the Israelis have subsequently largelymaintained.

As clearly demonstrated, the Negev Bedouindo not presently prefer tobe a separate and inde-pendent entity in variousspheres of public life suchas economic and politicalactivities. Their aspira-tions are of an individualnature. They are not in-terested in maintainingnomadic traditions ofcollective ownership oflands for the maintenanceof a collective communitybut rather in an exclu-

sively male proprietorship that would enableBedouin men to sell the land to others at theirown discretion. No studies have shown the exist-ence today of functioning, independent institu-tions in various spheres of daily life that couldpoint to the Bedouin being an indigenous people.

That no other Bedouin tribe in the entireMiddle East has raised a claim to indigenousnessraises questions regarding the motivations andauthenticity of such an argument. Since theBedouin in the Negev in some cases are from thesame tribe as those found in neighboring coun-tries, it is not logical that they can only be indig-

enous when they are on the Israeli side of theborder.

The entire question of indigenousness isparticularly problematic with regard to Israel. Thefear is that instead of providing remedies and es-tablished order, it will create new disputes. TheLand of Israel has a dual history, marked both byconstant waves of immigration and invasion byvarious peoples and uninterrupted Jewish pres-ence in the land from time immemorial. The Jewshave always considered the Land of Israel theirnational homeland, have lived in it as a sovereignnation in historical times, maintained at least atoehold there despite persecution, and returnedto it time and again after being exiled. This spiri-tual relationship is also expressed in both Jewishdaily prayers and Israel’s Declaration of Indepen-dence. If the parameters and preconditions forindigenousness are made more flexible to includearrivistes like the Bedouin, surely Jews can alsoraise a claim to be the indigenous people in Israel,a land which they called home thousands of yearsbefore the Negev Bedouin.73 In such a case, itmay also be expected that other ethnic groups,such as Druze, Christian Arabs, and Samaritans,would claim indigenous status. No doubt, thiswould add to confrontations already existing overcontrol of land and the holy places.

The concept of indigenousness was in-tended to help remedy past injustices by givingnative peoples the means to preserve their sepa-rate identity, common lifestyle, and the customsof their past. The Negev Bedouin may be a poorand marginal sector of Israeli society, yet this doesnot transform them into an indigenous people.

73 Allen Z. Hertz, “Aboriginal Rights of the Jewish People,”American Thinker, Oct. 30, 2011.

The Jewishspiritualrelationship to theland is expressedin daily prayersand in Israel’sDeclaration ofIndependence.