7 Geo. J. L. & Mod. Critical Race Persp. 45 (2015)
The Recognition of Indigenous People's Land: Application of the Customary Land Rights Model on the Arab-Bedouin Case in Israel

handle is hein.journals/gjmodco7 and id is 47 raw text is: 



      The Recognition of Indigenous Peoples' Land:
 Application of the Customary Land Rights Model on
                 the  Arab-Bedouin Case in Israel*


                              DR.  MORAD   ELSANA**

   Inspired by Aboriginal land  recognition in Australia, this article introduces the
native title doctrine and customary  law  doctrine as methods  for indigenous  land
recognition, and introduces the application of these methods to the Bedouin  case of
land conflict. This paper argues that the legal system in Israel includes at least two
options that could recognize Bedouin customary  land rights. The first option is based
on existing law as it appears in the legal codex of the State, and the second is based on
general principles of the Israeli legal system, namely the principle of custom as a
source of law. As an essential part of introducing these options, this paper will also
briefly introduce Bedouin customary  law.

I.  METHODS OF INDIGENOUS LAND RECOGNITION: THE DOCTRINES OF NATIVE
                           TITLE AND  CUSTOMARY LAW
   Many  scholars agree that the recognition of Aboriginal land rights in Australia is
considered  one of the most inspiring cases for indigenous peoples on a community
level, on a political level, and on a legal level. The Aborigines' experience continues to
provide a successful example for indigenous peoples and state leaders on methods of
land  rights recognition. While  some  articles introduce the non-legal struggle of
Aboriginal peoples in Australia, this paper reintroduces the legal aspects of the Aborigi-
nes' experience and focuses on the recognition of their customary land rights through
the native title doctrine.

                           A.  The Native  Title Doctrine
   The  native title doctrine is a major product of the Mabo  v Queensland  (No. 2)
decision. Through  this doctrine, Australian courts recognized rights and interests in


  * This paper is based on chapter 6 of my dissertation, see MORAD ELSANA, THE DISPOSSESSION AND
RECOGNITION OF INDIGENOUS PEOPLES' LAND RIGHTS: THE CASE OF BEDOUIN IN ISRAEL 103-30 (2013).
  ** Adjunct professor at the University of Maryland, College Park until May 2014. Doctorate degree of
Juridical Science from the American University, Washington College of Law, 2013; L.L.M., American
University, Washington College of Law, 2007; Masters of Social Work in Social Advocacy and Community
Development, McGill University; Bachelor's in law, Tel Aviv University. Recipient of: Fulbright Outreach
Fellowship (2009-2012; the New Israel Fund Civil Rights Leadership fellowship (2006-2007; and the McGill
University Middle East Program for Civil Society & Peace Building fellowship (2000-2002). From 2001-
2009, Dr. Elsana served as a Lawyer and director of Adalah-The Legal Center of Arab Minority Rights - the
Naqab (Negev) Office. Dr. Elsana has also worked as a legal advisor for Genesis Community Advocacy
Organization in Beer Sheva and as pro bono legal advisor for the Regional Council for Unrecognized Villages
in the Naqab (Negev). 0 2014, Morad Elsana.
  1. Although some land rights were recognized in a few states in Australia prior to Mabo (No. 2), the
decision introduced judicial recognition of Aboriginal land rights. See GARTH NETTHEIM, Mabo and Legal
Pluralism: The Australian Aboriginal Justice Experience, in LEGAL PLURALISM AND THE COLONIAL LEGACY
103-30 (Kayleen M. Hazelhurst ed., 1995).


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