Fabricating Palestinian History Are the Negev Bedouin an Indigenous People? by Havatzelet Yahel, Ruth Kark, and Seth J. Frantzman n 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 I 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 (known variously 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 the country’s Bedouin citizens, a formerly nomadic, Arabic-speaking group centered in the southern arid part of the country, the Negev. They argue that Israel denies their basic indigenous 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 other nations? tury onward, parallel to the emergence of sover- INDIGENOUS RIGHTS eign nation states, with the objective of regulat- IN THE ing relations between these new entities. Tradi- tionally, international law made no mention of INTERNATIONAL ARENA group rights, which were considered a domestic concern of the state.2 What is known today as international law International law was reluctant to further developed in Europe from the seventeenth cen- group rights for several reasons, among them concern for the integrity of the state and fear of separatism that would undermine its stability.3 Havatzelet Yahel is a doctoral candidate at The Hebrew University of Jerusalem and an attorney in the Israel Ministry of Justice. Ruth Kark is a professor at The Hebrew University of Jerusa- 1 S. James Anaya, Indigenous Peoples in International Law, 2d lem. Seth J. Frantzman is a post-doctoral re- ed. (Oxford and London: Oxford University Press, 2004), p. 3. searcher at The Hebrew University of Jerusalem 2 Natan Lerner, Group Rights and Discrimination in Interna- tional Law, 2d ed. (The Hague: Martinus Nijhoff Publishers and and a fellow at the Jerusalem Institute of Market Kluwer Law International, 2003), p. 112; Robbie Sabel and Hila Studies. The views expressed here are solely those Adler, eds., Mishpat Benleumy (Jerusalem: Sacher Institute, 2010), p. 241. of the authors. Yahel, Kark, Frantzman: Negev Bedouin / 3 Furthermore, group rights were considered con- This doctrine was upheld multiple times by the tradictory to the concept of a modern state based United States Supreme Court in the nineteenth on a direct social contract between the citizen century, and courts of additional nations fol- and the sovereign. lowed suit.6 In Australia, the British Crown used Over time, however, the idea of group rights the argument of terra nullius (empty land, namely for indigenous groups began to emerge. Indig- an unoccupied territory with no sovereignty or enous societies claimed that their position was recognized system of rights) to justify its classifi- unique in view of the great damage to the inde- cation as crown land.7 However, beginning in the pendent political frameworks that they had main- eighteenth century, it was conceded in courts of tained from time immemorial, their subjugation to various states that the population that lived in a a regime and lifestyle alien territory before the advent of the Europeans did to their culture, and the possess rights. Legal arguments focused on the The Declaration limitation of the physical question of whether, prior to the arrival of the on the Rights area in which they were colonizers, a system of land rights already existed of Indigenous forced to live. Their case, in a specific territory that had to be taken into therefore, centered on re- account, and if so, in what manner.8 Peoples refers to voking this perceived in- Early attempts by indigenous peoples to the land rights of justice and included de- bring their case before international forums be- a collective body, mands to preserve sacred gan in the 1920s.9 Their first successes, how- not individuals. sites, traditional crafts, ever, came decades later when activity shifted and customs as well as to from domestic arenas to regional, and later, in- honor preexisting trea- ternational organizations. On the international ties to the extent that such had been signed. level, the issue of indigenousness was advanced These societies also insisted on their right to in three major frameworks. The first comprised self-determination whether in the choice of two covenants adopted by the International group members or in the wider sense of sover- Labor Organization, an affiliate of the United eignty. The rights demanded were on behalf Nations: the Indigenous and Tribal Populations of the indigenous group and its common and Convention of 1957 (No. 107), and later, the In- collective character.4 digenous and Tribal Peoples Convention of 1989 As far as the European colonizers were (No. 169)10—neither of which was successfully concerned, legal rights vis-à-vis both preex- implemented. isting populations and other colonizing na- The second framework consisted of the ef- tions were based on the doctrine of “discov- ery.” This maintained that sovereignty over and full ownership of a territory belonged to the nation that discovered the new land.5 5 Robert J. Miller, “The Doctrine of Discovery,” in idem, et al., Discovering Indigenous Lands: The Doctrine of Discovery in the English 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, 3 Lerner, Group Rights and Discrimination, p. 111; Borhan U. 1887); Mabo and Others v. Queensland (Aus.), no. 2, AU 1992, Khan and Muhammad M. Rahman, “Protection of Minorities: A 175 CLR1. South Asian Discourse,” The European Academy of Bozen/ 7 Erica-Irene Daes, “Indigenous Peoples and their Relationship to Bolzano, Italy, 2009; Arif Dirlik, “Globalization, Indigenism, Land,” UNE/CN.4/Sub.2/2001/21, U.N. Commission on Human and the Politics of Place,” New Bulgarian University, anthropol- Rights, Geneva, June 11, 2001, p. 11. ogy dept., accessed Feb. 23, 2011; Ruth Gavison and Tali Balfur, “Zhuyot Kibutziot shel Miutim,” working paper, submitted to 8 See, for example, “Western Sahara, Advisory Opinion,” Interna- the Constitutional Committee, Sept. 13, 2005. tional Court of Justice reports, The Hague, Oct. 16, 1975, p. 12. 4 Patrick Thornberry, International Law and the Rights of 9 State of the World’s Indigenous Peoples, Secretariat of the Minorities (Oxford: Clarendon Press, 1991), p. 335; Lerner, Group United Nations Permanent Forum on Indigenous Issues, New Rights and Discrimination, p. 115; Siegfried Wiessner, “Rights York, p. 2, accessed Mar. 19, 2012. and Status of Indigenous Peoples: A Global Comparative and 10 Indigenous and Tribal Peoples Convention of 1989, Interna- International Legal Analysis,” Harvard Human Rights Journal, tional Labor Organization, Geneva, June 27, 1989; Lerner, Group 12 (1999): 99. Rights and Discrimination, p. 112. 4 / MIDDLE EAST QUARTERLY SUMMER 2012 forts of organizations such as the World Bank, which since the 1990s began to list indigenous rights as an issue of con- cern in its dealing with countries, espe- cially in the Third World.11 The third framework was informal action within various forums of the U.N. dealing with human rights. This in- cluded initiating conferences12 and pro- moting study of the topic. Beginning in 1971, the U.N. Economic and Social Council (ECOSOC) conducted an ex- tensive study of the issue of native populations.13 Carried out over a pe- riod of about ten years, the research was published in a series of reports Far from being the indigenous inhabitants, the Bedouin submitted between 1981 and 1986. In were relative latecomers to the Negev, preying on the 1982, the U.N. Working Group on In- villages and caravansaries that dotted the sparsely digenous Populations was established, populated wilderness. Here, a Bedouin family is pictured charged with protecting native popu- in the early 1900s. lations and the development of inter- national standards relating to their rights.14 A draft Declaration on the Rights of In- the framework of the Subcommission on Pre- digenous Peoples (DRIP)15 was enjoined in 1985, vention of Discrimination and Protection of and almost twenty years later in 2006, was finally Minorities.17 The assembly declared a second submitted to the U.N. General Assembly and decade on December 20, 2004.18 approved the next year with the support of more Much of the delay in presenting DRIP cen- than 140 nations. Four nations that voted tered on differences of opinion related to the con- against it (the United States, Canada, Austra- cept of sovereignty19 as well as the definition of lia, and New Zealand) eventually withdrew their indigenous.20 Since no consensus was reached opposition. Israel did not participate in the vot- on this crucial definition, the problem was cir- ing.16 During this time, the assembly declared cumvented by deleting it from the draft.21 Numer- 1995-2004 to be the “International Decade of ous countries, mainly from Asia and Africa, made the World’s Indigenous Peoples” and estab- qualifying statements regarding their support for lished a permanent forum on this issue within 17 U.N. General Assembly resolution 48/63, New York, Dec. 11 “Operational Directive: Indigenous Peoples,” The World 21, 1993; U.N. General Assembly resolution 49/214, New York, Bank Operational Manual, 4.20, Sept. 1991, pp. 1-6. Dec. 23, 1994. 12 See, for example, Conference on Discrimination against In- 18 U.N.