2. 2 ANTECEDENTES HISTÓRICOS

Kipat land is a community-owned land such as paths, sources of water and pasture land. The Kipat owning community had overriding authority over state claims. It is a land tenure arrangement based upon local custom and which recognized the person reclaiming the land (Regmi 1976, 87). In addition, indigenous or autochthonous

communities retain their customary practices on land which are identified by communal authority or a state. Kinship, customary occupation, and their location (defined by particular geographical boundaries) determine the membership on the Kipat land. The Kipat land was inalienable outside the community, but members had rights to sell within groups. Besides, individual also had rights to cultivate their plot. In the condition of the vacancy of the plot, the community, not the state, had rights to decide on how to use the plot. In contrast to the tax based on the size of Raikar land, home determined the state tax on Kipat land. After the unification of modern Nepal and waves of migration,

“newcomers (Indo-Aryan groups in particular) acquired land rights under a statutory form of landownership, such as Birta or Jagir,” (Regmi 1976, 88). On the other hand, indigenous people retained their customary rights on Kipat land through customary practices on land and forest. Most of the Kipat owning communities inhabited the eastern and western midlands of Nepal (Regmi 1976, 88). These communities include Limbu, "Rai, Majhiya, Bhote, Yakha, Tamang, Hayu, Chepang, Baramu, Danuwar, Sunuwar, Kumhal, Pahari, Thami, Sherpa, Majhi, and Lepcha" in. (Regmi 1976, 88).

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The effective governance of indigenous people and their customary practices on land became a challenge to the newly unified state because it contradicted with the state’s land tenure arrangements and the revenue demand of the period. The direct control of the land and people was not feasible for several reasons. First, it was politically undesirable for a newly unified state, and second, the state also lacked the capacity of complete control. Third, the chance of revolt and resistance by a "turbulent community" was higher (Caplan 1967; Regmi 1975, 93). Fourth, the labor and military power of indigenous communities, who could flee to neighboring states, were more critical than land per se to rulers for the expansion of the revenue, territory, and security17 (Caplan 1967; Regmi 1975).

Therefore, Shah rulers recognized customary practices of some people as customary rights in their territories (Caplan 1967). For instance, in Pallokirat, Shah rulers, through royal decree, recognized the authority of local chiefs or headmen and guaranteed their customary practices and rights to their ancestral Kipat land. Following the conquest of Pallokirat in 1774, Prithivi Narayan Shah declared and assured the Limbu chief and the inhabitants that they would be permitted "to enjoy the land from generation to generation, as long as it remains in existence." (Regmi 1976, 93). These tactics not only integrated the newly unified principalities but also strengthened the administrative apparatus of the state. The arrangement made the state work more efficiently, as the state officially recognized and granted rights and responsibilities to the village headmen to maintain law and order, collect taxes, and impose fines and punishment (Caplan 1967).

17_{. As Rulers were expanding their territory to the eastern region such as Sikkim following the conquer of}

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However, actions of the Indo-Aryan18 immigrants who had settled in the hills of Nepal since the 11th _{and 12}th _{century had political and economic effects on the Kipat}

owning communities in the hills (Regmi 1967). In particular, the loss of Kipat land to the “superior” Indo-Aryan migrants was the major problem (Ghimire 1998). In Pallokirat, as in other areas, the possessory mortgage of the land and outright sale was one of the major factors of Kipat land loss. Non-Limbus controlled large amounts of Kipat land through such mortgages even before rulers formalized rights and rules on the lands. Caplan (1967) noted that by the end of 19th century, “the rate of Kipat conversion into Raikar land reached alarming proportions” (Kaplan 1967, 110). Scholars have documented such mortgages in one area of Illam, where approximately 70 percent of Kipat land was under possessory mortgage by 1964-65 (Regmi 1967, Caplan 1967). These circumstances prompted the large-scale out-migration of Indigenous populations to Darjeeling, Sikkim, and Bhutan as laborers and as the Gurkha soldiers for Indian and British Army (Caplan 1967).

To reduce the effect of such land-alienation or dispossession from the land, rulers had also devised policies to control the problem by creating landholding collectives and inalienable rights, recognizing specific areas as Kipat land. In other words, rulers recognized customary practices as customary rights and spatially fixed the problem of dispossession and the potential loss of labor and military power by creating and

18 _{Following the Muslim invasion of India during the 11 and 12th centuries, many Indo-Aryan immigrants}

arrived and settled in the hill region of Nepal, they gradually displaced many communities from the region. In particular, many longtime inhabitants experienced a similar type of displacement from their land, and this continued after the unification period and intensified during the Rana regime (Kansakar 1973 in Ghimire 1998).

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protecting the Kipat land. For instance, the royal order recognized that “Limbus were leaving their Kipat lands because of harassment by moneylenders and oppression by government officials” (Regmi 1975, 97). Regmi also noted that “royal orders confirming Kipat rights on ancestral lands usually were issued only when it was necessary to impress labor services from Kipat owners, or when it appeared that lack of tenure security was leading to depopulation" (Regmi 1975, 98). The order was also issued to stop out-

migration by declaring a moratorium on the payment of a moneylender's loan for eight to ten years and a three-year remission on homestead taxes. Also, rulers attempted to resettle hill population in the Tarai plain to solve the problem of out-migration. In 1899, a royal order to the Limbus of Pallokirat requested that they clear the forest and resettle in the Tarai region of Nepal (Morang), rather than migrate to India. (Regmi 1975, 97). In Kathmandu Valley and other places, according to 1799 Land Administration Regulation for Kathmandu Valley, the selling of Kipat land was considered as an offense. Until 1901 and 1903, the government through royal order banned the selling19 of cultivated Kipat lands, but not of the “waste” Kipat lands.

Rulers also initiated gradual and indirect strategies of transforming or

appropriating Kipat land. Major strategies employed were the partial recognition and formalization of customary practices into customary rights. According to the royal orders, the Kipat holder had to maintain the documentary evidence of Kipat land. That is, when customary practices were recognized, the state's regulation inscribed only partial "rights," and when a royal order confirmed the Kipat holding, "the area and boundaries were

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seldom specified," and the documents rarely mentioned all customary and ancestral practices of inhabitants (Regmi 1975, 94). As a result, many Kipat holders were without documentary evidence. The government also imposed several other measures to control Kipat land such as the imposition of the ceiling, provisions of compulsory unpaid labor and taxation by Kipat holders (Regmi 1975, 99). Besides, in Pallokirat, the government encouraged non-Limbu immigration and settlements to break the hegemony of Limbu ownership of land by granting all “vacated” Kipat land as a Birta to non-Limbu

communities. The government also refused to recognize Kipat landownership rights on the "wastelands." These wastelands were transferred into Raikar land and the state later granted the land for reclamations to non-limbus. Similar strategies were employed to control other indigenous people's Kipat land (Regmi 1976, 101).

In 1886, the government enacted legislation to transfer all the Kipat land that Limbus had sold to non-Limbus into Raikar land. As possession of the Kipat land through mortgage was not allowed to non-Limbus after the death of the Limbu

mortgagor, the government later amended the law that allowed the non-Limbu creditor to cultivate on the mortgaged holding. These legal and spatial strategies helped in

maximizing state revenue by gradually bringing Kipat land under the Raikar system, strengthening the security of the state's territory by recruiting armies from indigenous hill communities and providing the labor needed to reclaim land in the Tarai region. Some authors have even documented that in 1801, King Prithivi Narayan Shah granted the lands of Nagarkot and the eastern side of Kathmandu Valley as Kipat land to Tamang communities (Regmi 1976, 90). Furthermore, Regmi noted that the Revenue Regulation of Doti and Achham traditionally treated Kipat land as a form of Birta to a community

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for their specific service, a Sewa Birta (Regmi 1976, 99). These cases indicate that the royal order and legal practices had not only recognized some customary practices as customary rights, but they played an active role in the construction of new customary land and rights. Rulers, however, did not grant land to all indigenous communities as a Kipat land nor did they always recognize customary practices. For instance, Rai people in Majhikirat, who were weak compared to Shah rulers, were not able to secure their Kipat land. As a result of the dispossession from their Kipat land, many Rai people resettled in the forested areas of the Tarai region. In addition, not a single indigenous people and group within the whole Tarai plains were ever recognized. Instead, rulers and scholars have represented the place as a "wasteland," "forested land," or "vacant land." Therefore, Rai (2013) asserts that until recently rulers and scholars represented Tarai as "a swampy, malaria-ridden, unhealthy, and wild place without history and civilization" (2013, 90). This constructed and political nature of Kipat land and the rulers’ attempt to communal fix the indigenous communities in the hills contradict with an argument that the Kipat land and rights were given as “primordial” or natural land categories (Regmi 1975; Ghimire 1998). Therefore, the land categories or land rights reflect power relations between rulers, local authorities, and people.