54 No. 69 JUSTICE with the ownership claims of Bedouins from the Al-Uqbi family in the Negev, who claim ownership over thousands of dunams.8 This lawsuit is part of broader ownership claims that Bedouins have regarding hundreds of thousands of dunams in the Negev.9 Before rejecting AlUqbi’s claim, the court heard arguments regarding questions of Ottoman land laws, the Mandate, the implications of the Independence War, and the Land Acquisition Law of 1953.10 An identity question brought before the court was about indigeneity. The people of Al-Uqbi claim that the Bedouin population in the Negev are “indigenous people” as the term is used in international law and defined in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) of 2007, and therefore entitled to ownership of the Negev lands. Ruling over the issue of indigenousness involves weighty questions such as: who was in the Land of Israel first? Who has historical rights to the land?11 The Bedouin claim of indigeneity rests on the assumption that Zionism is a colonialist movement and that the Jews are foreign immigrants to the region. Hence, accepting the indigenous argument would conflict with the Jewish conception of the Land of Israel as the historical homeland of the Jewish people, a concept that is expressed, inter alia, in the Balfour Declaration, the British Mandate granted by the League of Nations, and Israel’s Declaration of Independence.12 In the sixth chapter, “Creative Judiciary: Equitable and Constitutional Safeguards to Property Rights,” Sandberg seeks to show, under the heading “Creative Judiciary,” how land laws are intertwined with issues relating to the status and independence of the judicial system. Israel, he claims, is blessed with an independent judiciary renowned throughout the world, while at the same time, its creativity and the boundaries of its authority are central in a heated public debate regarding the identity and character of the state as a democratic state. Sandberg focuses on two arenas of discussion of legal activism. First, the applicability of equitable remedies in land laws as a legacy of British law, and second, the constitutional protection afforded to private property. In the epilogue, Sandberg concludes that the analysis of the changes in land laws reflects the changes in the identity conflict as well as the current situation in which Israel finds itself – a struggle for independence and difficulty disengaging from the past. The author simulates the identity analysis of the characteristics of Israel to the analysis done through Freudian therapy. According to him, “the underlying theme of this analysis is that Israel is in a constant state of flux, looking to the future while remaining haunted by the past,” a reality which “The Freudian analyst would probably conclude that the imaginary patient is a conflicted soul fraught with dilemmas and uncertainty” (p. 209). Alongside the many praises accorded to this book, one element is missing. Sandberg does not deal with issues of de-facto implementation and enforcement of land laws, which raises the question of whether it is enough to discuss laws in isolation from their actual application. Can discussing and analyzing “land law” be complete without such aspects? Does the law only include what is written and ruled by judges, or is it also what happens in practice? Moreover, does not the lack of enforcement by itself create a law? In Israel, there are large areas in which land laws have systematically not been enforced over the years. In those areas, court rulings are no more than ink on white paper. The largest and most prominent of this phenomenon is 8. Civil Further Hearing 3751/15 Al-Uqbi v. State of Israel (2015); Civil Appeal 4220/12 Al-Uqbi v. State of Israel (2015). 9. See Havatzelet Yahel, “The Conflict over Land Ownership and Unauthorized Construction in the Negev,” 6 CONTEMPORARY REVIEW OF THE MIDDLE EAST 3-4, 352 (2019). In contrast see Alexandre Kedar, Ahmad Amara, and Oren Yiftachel, EMPTIED LANDS: A LEGAL GEOGRAPHY OF BEDOUIN RIGHTS IN THE NEGEV (Stanford, CA: Stanford University Press, 2018). 10. Land Acquisition (Validation of Acts and Compensation) Law, 5713-1953, SEFER HAHUKIM 58 (Hebrew). 11. Havatzelet Yahel, “The Jewish People and Indigenous Resilience,” in David Danto and Masood Zangeneh, eds., INDIGENOUS KNOWLEDGE AND MENTAL HEALTH: A GLOBAL PERSPECTIVE, 145 (Cham: Springer, 2022). 12. The Declaration of Independence opens with the words “Eretz Israel was the birthplace of the Jewish people. Here their spiritual, religious and political identity was shaped. Here they first attained statehood, created cultural values of national and universal significance, and gave the world the eternal Book of Books," which expresses the Jewish identity element and the concept of an unbreakable connection between the territory and the Jewish people. See Havatzelet Yahel, “The Declaration of Independence and the Discourse of the Indigenous Peoples,” in Dov Elbaum ed., THE DECLARATION OF INDEPENDENCE WITH AN ISRAELI TALMUD: SOURCES AND MIDRASHIM, LITERATURE AND STUDIES 80 (Rishon Lezion: Bina, 2019, Hebrew).
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