Of late, the media have been reverberating with charges that Israeli settlements on the West Bank are illegal and are an “obstacle to peace.” It’s difficult to see how that can be true, since before 1967, before there were any Israeli settlements on the West Bank, there was no peace — the Arabs were just as hostile and just as committed to the destruction of Israel then as they are now. But if we are going to talk about legality of settlements, shouldn’t we also consider what American law has to say on the subject, instead of arguing about highly ambiguous, disembodied passages in United Nations documents, that upon close reading do not apply to this situation? Slice it any way you like, the fact remains that all Americans are “settlers” — we all live on formerly Indian, Mexican and Hawaiian lands that we conquered and settled by force of arms. So let’s take a look at how American law deals with the subject of settlements and their legality, vel non.
In Johnson v. M’Intosh, 21 U.S. 543 (1823), Johnson held title to land in Illinois, which his father had bought from local Piankeshaw Indians. On the other hand, M’Intosh held a government patent to the same land. So the question was which conveyance trumped the other. Speaking for a unanimous court, Chief Justice Marshall held that when the United States occupied the subject land, it not only displaced Indian sovereignty, but it also acquired preexisting Indian titles to it. That was the custom of nations, and Marshall noted that “all the nations of Europe who have acquired land on this continent, have asserted in themselves, and have recognised in others, the exclusive right of the discoverer to appropriate the lands occupied by Indians.” So the M’Intosh patent trumped Johnson’s Indian deed.
In Worcester v. Georgia, 31 U.S. 515 (1830) the appellant was convicted under a state law that forbade whites to reside within the territory of the Cherokee Indian Nation. The Supreme Court held that states had no power to forbid anyone from residing in Indian territory. Eventually, under the 1830 congressional Indian Removal Act, the Cherokees were expelled from Georgia and sent off on the “trail of tears” to Oklahoma, in spite of the Supreme Court’s ruling that this was illegal. Said President Andrew Jackson: “John Marshall has made his decision. Now let him enforce it.” The rest is history — local settlers got the Cherokees’ land.
If you think that this is a case of “that was then – this is now,” be advised that Johnson v. M’Intosh continues to be the law of the land. In Northwest Band of Shoshone Indians v. United States , 324 U.S. 335, 339 (1945) the Supreme Court had this to say: “Since Johnson v. M’Intosh, . . . gave rationalization to the appropriation of Indian lands by the white man’s government, the extinguishments of Indian title by that sovereignty has proceeded, as a political matter, without any admitted legal responsibility in the sovereign to compensate the Indian for his loss. Exclusive title to the lands passed to the white discoverers, subject to the Indian title with power in the white sovereign alone to extinguish that right by ‘purchase or conquest.’ . . . The whites enforced their claims by the sword and occupied the lands as the Indians abandoned them. Congress has authorized suits on the original Indian title but no recovery has yet been obtained.” And as recently as 2006, in Delaware Nation v. Commonwealth [of Pennsylvania], 2004 U.S. Dist. LEXIS 24178, affirmed, 2006 U.S. App. LEXIS 11085, an Indian lawsuit to recover possession of ancestral land was dismissed because the Tribe’s aboriginal title had been extinguished by an act of the sovereign, and the justness of the sovereign’s act was a political question that was not justiciable. So much for claims of settlement illegality under American law.
So the question virtually asks itself: even if one recognizes the political components of the Middle East donnybrook, and all that Realpolitik jazz that goes with it, where do American politicians like Hillary Clinton, get off lecturing Israel about these matters, claiming that what is deemed legal by black-letter American law is “illegal” over there? To add insult to injury, these lectures assiduously avoid any mention of land tenure in the Middle East, which is not at all like ours.
Over there, most land is owned by the state, and most private holdings are on a leasehold basis which gives the land’s occupants usufructary rights, but no title as in our system. There are four different types of land over there: mulk, miri, mewat and metrouka. Mulk land is closest to our system. It is mostly urban and developed. It has not been subject to controversy. But it’s another story with miri land. It is state-owned but anyone can settle on it. If such settlers maintain residence, cultivate the land, and pay taxes on it, they can eventually obtain a certificate of usufructary title which is registered, sort of like under the Torrens system with which California experimented in the 1920s. A settler who fails to satisfy these conditions is deemed a squatter and has no rights in that land. Mewat land is also government-owned land, on which no one can settle without explicit, written government permission. Finally, metrouka land is land that is already devoted to government or communal uses — it may not be conveyed to or occupied by private parties under any circumstances. So it follows that unless you know what kind of land is involved in a particular controversy over there – something that American media never explain – you cannot make a valid judgment as to the legality or illegality of the actors’ behavior under their own law. And that law has been in force since the Holy Land was a part of the Turkish Ottoman Empire before World War I, under the British occupiers when they ruled the Palestine Mandate between the two World Wars, under the law of Jordan which conquered and occupied the West Bank between 1948 and 1967, and under the law of Israel which recaptured it in 1967, when several Arab nations launched a war to push the Jews into the sea, as the Arabs were fond of putting it.
Bottom line: the history of nations is a history of conquest, and I know of no country, other than Israel, that is being hectored about having to relinquish lands it captured in a war against genocidal aggressors. We don’t hear much kvetching about India, Pakistan, Russia, Poland, Germany, Japan, the Ukraine and Byelarus, China and Tibet, or Cyprus and Turkey, all of whom were involved in territorial conquests and/or population exchanges since World War II. To say nothing of the expulsion of some 800,000 Jews from Arab lands in the 1940s. No one is demanding that Russia give back eastern East Prussia to Germany, even though it is no longer contiguous to the rest of Russia, or that Russians shouldn’t be permitted to settle there. And in Great Britain, where Israel bashing has become a popular sport, you don’t see many demands that the Brits get out of Ulster and turn it over to the Irish Republic, and that the Scots who settled there after the British conquest be shipped back to Scotland. And as the Japanese have learned the hard way, their demands for the return of the Kurile Islands that were conquered by the Russians in 1945, at most gets them the Russian equivalent of the upraised digit.
Finally, the case of Israel is not just a case of naked conquest. The Jewish roots in the Holy Land go deep and predate Arab claims by over a thousand years. The Jews’ effort to reestablish themselves as a sovereign nation on their ancestral land in which they have always maintained a presence, is more like a national liberation movement, than conquest. And, as far as we Americans are concerned, it is incontestable that the Jewish historical claim to Jerusalem is one hell of a lot stronger than our ancestral claim to San Diego, for example. So it may behoove our glorious leaders to stop nattering about “illegal” Israeli settlements. After all, we Californians live in expanded gringo settlements on the conquered and occupied North Bank of the Rio Grande. So let’s hope that Hillary Clinton does not demand that we give them back to Mexico. Or to the Indians.