This three-author book promises “to critically examine, for the first time, the legal history and legal geography of the Negev” (15; Naqab in Arabic). Rooted in postcolonial studies, the premise is that Israel's settler-society efforts “to Judaize the Negev” (269) deny Bedouin landowners of their rights. Israel displaced about 80 % of the Negev's Bedouins in 1948, driving them to (then) Jordanian-controlled Palestinian territories (the “west bank”) and to Egypt's Sinai. The remaining few were forced into one designated area of the Negev and the book focuses on them.
Ever since the 1950s, Israel and Bedouins have engaged in a multifaceted protracted conflict over land rights, grazing areas, and planning and construction issues. The authors argue that the Bedouins are indigenous to the Negev and are entitled to protections under international law. Another argument is that the body of State law that governs the Bedouin is factually and jurisprudentially wrong. The authors concentrate on correcting the historical-geographical evidence and proving the doctrinal errors of the courts.
The case of the al-Uqbi Bedouin family occupies centerstage. The family claimed ownership of roughly 1200 dunam (300 acres). The case pitted two geography professors—Ruth Kark for the State and Oren Yiftachel, a coauthor of this book, for the claimants—against each other as courtroom experts. The District Court Judge ruled against the claimants, praised Kark, and questioned Yiftachel's professional credibility.
The court followed a well-known formalistic precedent: the disputed land had been classified as Mawat (“dead”; belonging to no one) by the pre-WW1 Ottoman rulers of the Negev. Post-war British legislation allowed claimants to establish ownership rights and register Mawat land as private property on condition that they had done so before a set deadline (1921); the Bedouins failed to do so. Consequently, Israel inherited this Mawat land and, at any rate, geographers established that “no permanent settlements or cultivation existed in the disputed lands during the relevant period for establishing land rights” (111). The land was Mawat—legally and factually—and could lawfully be registered as State property. On appeal, the Supreme Court upheld the ruling.
The authors argue that the court ignored the “historical and geographic documents submitted by Yiftachel” (111) and they seek to set the record straight. It is a thoughtful and serious endeavor, impressive in breadth and detail, committed to showing that “the large tracts of land in the northern Negev were not Mawat. They had been owned, possessed, inhabited, and cultivated by Bedouin Arabs for generations” (17).
Professor Kark is the antihero of the book. Heavily cited throughout, Kark and her followers are “deniers” (172) who (1) “cling to anachronistic concepts and definitions concerning indigenous peoples” (159) and (2) help the State “to ‘normalize’ and legitimize contested state narratives under the guise of ‘scientific truth’”(110). The “deniers” consider Kedar and Yiftachel as “post academics” whose “agenda dictates the research”: “a post-historical study where sources, primarily secondary, are mustered deceptively” (Reference FrantzmanFrantzman 2014: 48–9.) It is a heated debate, and the authors stress that it is not “a personal matter” (111).
In earnest, the parameters of the debate are anything but new, although the tone has been raised in the past decade. The book opens up too few new directions of inquiry and theoretical frontiers. One direction concerns an interesting methodological dispute about reading old maps (147–150; Reference Levin, Kark and GalileeLevin et al. 2010.) Another continues Reference NasasraNasasra's (2012) expose of pre-statehood Jewish purchases of land from Bedouin sellers. The authors present archival materials showing the Zionist double-standard: working through the land registry in arranging purchases of land before 1948 and a blanket denial of Bedouin ownership rights afterward.
Some readers may find it ironic that compared to Israel, the British appear here as enlightened rulers who not simply tolerated but actively facilitated the Bedouin ways: “[I]t was a matter of a consistent policy of the judicial, legislative, and executive authorities to accord broad legal and cultural autonomy to the Bedouin tribes” (including “[r]ecognition of customary Bedouin land law” 77–78). The argument is pitched against the “deniers” who claim that the British were simply neglectful and disinterested. The question of Zionist-British-Bedouin relations before 1948 is a fascinating topic. The book continues the works of Reference NasasraNasasra (2012, Reference Nasasra2015) in this direction, but avoids his pioneering framework of subaltern politics and resistance (Reference Nasasra2011); the British-Bedouin affair revolves around more than progressive colonial policies of granting cultural and legal autonomy.
The final part of the book addresses Bedouin indigeneity. Authors clash with Kark et al. over traits and definitions and display unflinching conviction that State recognition of the Bedouin as indigenous is necessarily “a good thing”. Perhaps so, yet authors dedicate only half a page to contemporary critical voices who think otherwise (172). One theoretical challenge to explore is that indigeneity is a product of western-liberal cultural fetishisation. Tatour asserts that “the culturalisation of indigeneity, both in international law and in the production of Bedouin indigeneity… risks compromising the long-term claims of indigenous peoples to land by conditioning them upon the perpetual practice of ‘authentic’ culture” (2019:1569). The altercation with Kark comes at the expense of reflections along these lines.
The book advocates “a need for a new approach” (21) yet displays a quaint positivistic yearning: if the courts were open to hearing the full breadth of legal and historical facts they would have revised their doctrines. But perhaps, the socio-legal drama lies elsewhere. “Time immemorial” inhabitants of the desert areas of which the Negev is part—oftentimes de-facto rulers—this historically nomadic tribal society have over the years perfected methods of resisting and subverting the impositions of imperial powers and sovereign states. Although never formally recognizing their land rights and at times resorting to the brute and deadly force of eviction and demolition, Israel's dealings with the Bedouins reveal a tacit acknowledgement of their inalienable relationship to the land; hence its investments in building heavily subsidized Bedouin towns (“permanent settlements”), devising resettlement plans, offering monetary compensations, settling legal claims out of court, dragging its feet in registering lands as State property, and often avoiding the enforcement of its own planning and construction regulations. A new approach could have explored how the legal history and geography of the Negev unfolds through these multiple layers of compromise, conflict and resistance.
