LESSONS FROM THE WEB

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In this monthly column, law professors comment on the many academic opportunities and challenges presented by Web technology.

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NativeWeb: Internet as Political Technology

Peter d'Errico, Department of Legal Studies, U. Mass. Amherst

NativeWeb, an Internet Web site offering resources for indigenous peoples around the world, is the project of a small core of dedicated volunteer webmasters and a wider group of Internet users who offer help. In the words of our formal 'mission statement':

NativeWeb is an international educational organization using telecommunications to disseminate information from and about native or Indigenous peoples around the world; to foster communication between native and non-native peoples; to conduct research involving native peoples' usage of the Internet; and to provide resources to facilitate native use of this technology.

NativeWeb was initiated in May 1994 as an outgrowth of NativeNet, which Gary Trujillo began in 1989 as one of the first global listservs. The catalyst for NativeNet was a conference, "From the Arctic to Amazonia: Industrial Nations' Exploitation of Indigenous Peoples' Land," held at Smith College in Northampton, Massachusetts, attended by people from every continent but the Antarctic. The conference demonstrated how much indigenous peoples of the world have in common and how much they needed ways to communicate globally.

My own offering at the conference, a critical view of standard academic approaches to native issues, was entitled "Ivory Tower: The Relative Autonomy of Academic Work." [audio file] My focus was the dichotomy between 'scholarship' and 'activism.' Legal education is especially entangled with this dichotomy.

Legal education has a complex relationship with the world of practical law. On the one hand, no matter how 'scientific' the case method may be, it's value consists in its utility. On the other hand, the 'law in action' only makes sense when we view it in wider contexts. The relation between law study and practice is a site of tension. The Internet is only the latest venue for playing out the tension. As James Elkins has written in this column:

In adopting or ignoring the Web we say something about who we are as teachers, about our views of legal education, and about what we think is going on in legal education and what we hope to see happen in legal education in the new century. The Web and Legal Education: What Kind of Innovation is It?, par. 9.

In my days in law school, 'clinical' approaches were offered as a way of responding to the tension between taught law and practiced law. Legal 'activism' was a central and unmistakable aspect of legal education in the '60s. As my generation of lawyers entered practice, many of us believed we could participate in the political and economic, if not spiritual, movements of our history, using law as a vehicle. Our intention was to reach out beyond the world of books and the past toward a world of people and the present, with an aim to create a different future than was imagined in the existing institutions of law.

What technologies did we have? The traditional institutions--courts, legislatures, agencies--are a kind of technology and we used them all. We used machines: telephones, typewriters, airplanes, meeting rooms. In short, we had the same tools available to all other lawyers of our day. Sometimes we had more and sometimes less than an average law office, but it was all the same tools.

We also had one new institution--legal services--that provided a political technology of 'citizen participation.' (On the notion of 'political technology,' see Michel Foucault, "The Political Technology of Individuals," in Martin, Gutman, and Hutton, ed's., Technologies of the Self. Amherst, MA: University of Massachusetts Press, 1988.) Perhaps more than anything else, this institutional technology made the difference between 'ordinary' and 'activist' lawyering. 'Citizen participation' made it possible to organize people in communities around legal action. 'Citizen participation' made it harder for lawyers to dominate clients.

As a new political technology, legal services threatened established modes of doing law. In its heyday, the new way of representing the poor transcended the remedial 'legal aid' model, in which lawyers helped indigent individuals through various legal mazes, and developed an aggressive 'law reform' stance, where mazes themselves were targets in class actions.

The legal profession was divided in its responses. Local bar associations were often antagonistic, in defense of settled local practices that excluded wide segments of the population from political and economic power. The national bar became quite supportive, sometimes in subversive ways, as legal services promised a vigorous role for lawyers in a time of social change.

As we all know, the political technology of legal services eventually bit the dust. Powerful coalitions came together to deny funding and constrain the range of action for 'poverty lawyers.' 'Citizen participation' was an idea whose time was not yet to be.

We were perhaps naive to have thought that 'law in action' could be much different from 'law in books.' After all, as Karl Llewellyn taught, even the most 'realistic' judge must still be provided with a 'technical ladder' of precedent to reach the goal sought by the advocate. (The Bramble Bush, quoted in Bonsignore, et al., Before the Law. Boston: Houghton Mifflin Co., 1998, p. 17.) The limits of the law library are the limits of lawyering. Or, to put it another way, activist lawyering consists in trying to expand the library.

It is no exaggeration to name the millennium just ending as the millennium of the law library. From the 12th century in Bologna, when law was the curriculum for those who would counsel kings and writing was predominantly in theological mode, legal curriculum and pedagogy focused on texts. In Harold Berman's words:

..The scholastic method ... which was first fully developed in the early 1100s, both in law and in theology, presupposes the absolute authority of certain books...; but paradoxically, it also presupposes that there may be both gaps and contradictions within the text: and it sets as its main task the summation of the text, the closing of gaps within it, and the resolution of contradictions. Law and Revolution: The Formation of the Western Legal Tradition. Cambridge, MA: Harvard University Press, 1983, p. 131.

The world of printed texts is no less 'virtual' than the cyber world of the Internet (though this is infrequently recognized), but its virtuality is more manageable. As Ethan Katsh has written in this column, the invention of printing allowed law to "move from a more fluid informational environment to a more fixed informational environment...." As a consequence:

..Whatever wonders and benefits are presented by the electronic media, uniformity, standardization, linearity, fixed images, and inherently trustworthy and authoritative displays [are] unlikely to be the norm. As a result, it appear[s] reasonable to believe that institutions that are currently oriented around text and the authority that derives from a fixed, uniform and standardized mode of communication, [will] become... vulnerable.... What Happens When a Glacier Starts to Melt?

The threat of the untamed Internet appears at least as unsettling to legal orthodoxy as legal services ever was and on a global rather than national scale. Legal services was tamed not only by vested interests but by resistance within communities it served. 'Law reform' imposed costs on legal adversaries and diverted organizational resources from remedial representation which remained vital to day-to-day survival of the poor. The Internet, in contrast, does not appear to impose any costs on those in whose hands it becomes a tool to challenge the status quo.

The Internet offers multiple venues and avenues to challenge vested legal interests. These range from free access to legal texts (searchable databases of state and federal codes, cases, and agency documents, available directly or via public libraries) through opportunities for intervention in decision-making (email, web-based forms for public comment) to means of organizing broad coalitions for direct action (including letter campaigns, coordinated appearance in public fora, and street demonstrations). None of these require and all of them enhance independent institutional organization.

Through NativeWeb and similar Internet vehicles, people (and peoples) become visible to each other and themselves and organize actions in a multitude of local, national, and international institutions. The shape of social action changes as wider audiences are created and especially as the means of creating audiences become the means by which audiences become actors. From Chiapas to Seattle and from the former Yugoslavia to Tianenmen Square, communities widen, coalesce, and act as they work, communicate, and organize via the Internet.

I am not a Pollyanna about the Internet. While it does not seem to impose costs on those who use it, there are dimensions of life where electronic mediation is irrelevant, perhaps even inimical to well-being. Spirituality, especially direct (as opposed to abstract) engagement with Creation, is probably the best example. I was reminded of this one afternoon, after frustration with scanning an image. I took a break and walked through dazzling fall colors and sun. I suddenly realized how stunning and immediate reality is. I felt a deep sense of gratefulness for the grace of eyesight, of vision. The pleasure of the moment was immense and palpable. The mountains and trees and air and wind were inside me and I inside them. No need for 'virtual reality' when the real thing is available. To the extent that our environment is technological, the line between reality and fantasy is impossible to maintain. This is as true for books as for the Internet, but the latter is more dazzling and with increasing refinement becomes capable of excluding attention from greater portions of the larger environment.

Despite limitations in relation to 'real life,' electronic media may provide a way to present ideas and experiences that cannot be handled via printed texts. This may have special relevance for cultures whose pedagogy, social heritage, and life-ways are themselves inimical to the written word. Books and print were developed in large part to control and contain social dynamism in non-state cultures, codifying and over-riding custom, for example. (See Berman, above; see also Stanley Diamond, "The Rule of Law versus the Order of Custom," In Search of the Primitive. New Brunswick, NJ: Transaction Publishers, 1981; Gerald Strauss, Law, Resistance, and the State: The Opposition to Roman Law in Reformation Germany. Princeton, NJ: Princeton University Press, 1986.)

Images and sounds carry information that eludes (or is excluded from) printed texts. This information may be of the most basic significance to a people, a culture. Tonality and gesture may be of equal or greater significance than that which can be conveyed by a printed text. Moreover, the significance may have legal consequence. For example, Canadian courts have recently ruled that oral histories contained in song and dance are a component of aboriginal land tenure and must be considered in land claims proceedings, with the evidence presented by indigenous performers. De lgamuukw v. British Columbia, 3 S.C.R. 110 (1997)

NativeWeb is concerned with contemporary communities rooted in indigenous life-ways. Our purpose is not to 'preserve,' in museum fashion, some vestige of the past, but to foster communication among peoples engaged in the present and looking toward a sustainable future, and to provide information and educational resources about these peoples and their communities. As greater bandwidth and wider connectivity become available, one may find online performances as well as documents, presenting a fuller 'picture' of indigenous perspectives, concerns, and interests. Bernard Hibbitts has suggested that the Internet may facilitate

..expression, transmission and preservation of indigenous oral and performative cultural forms which to this point have been inadequately presented and/or translated for the "mainstream" in text. In other words, as "mainstream" cultural channels expand into the audio-visual thanks to the multimedium which is the Net, the mainstream population may become more able and willing to appreciate the culture (and associated social and political realities) of native groups that in text culture have always had to fight against literal invisibility and inaudibility. [personal communication to the author, 23 Dec 1999]

Indigenous peoples' law and legal issues were the inspiration for NativeNet and they are at the heart of NativeWeb. NativeWeb offers free hosting of web sites for selected indigenous nations, groups, and organizations. Hosted organizations currently include: Abya Yala Fund for Indigenous Self-Development in South & Meso America; The Confederation of Indigenous Nationalities of Ecuador; Dulenega o Kuna Yala; Federación Ecuatoriana de Indígenas Evangélicos; Federación Indígena y Campesino de Imbabura; Indigenous Peoples Council on Biocolonialism; Instituto Científico de Culturas Indígenas; League of Indigenous Sovereign Nations of the Western Hemisphere; ONMAKED; Nipmuc Indian Association of Connecticut; Solidify Our Sovereignty; The South and Meso American Indian Rights Center; and the Union of Peasant and Indigenous Organizations of Cotacachi.

NativeWeb also hosts a variety of specialized information databases , including: NativeTech; Indigenous Peoples' Law and Legal Issues; Abya Yala Net; The Indigenous Alliance of The Americas/Tawantinsuyu; The Wampum Chronicles; Hopi Basketry Presentation; Pyramids of Mexico; and Indigenous declarations, statements, and manifestos.

The collaborative webmaster group running NativeWeb currently includes, in addition to me: Marc Becker, professor of Latin American history at Truman State University in Kirksville, Missouri; Shane Caraveo, private consultant designing database interfaces for web sites; David Cole, freelance editor and writer, formerly systems administrator at Syracuse University who has taught college and alternative high school; Alan Mandell, Systems Administrator for the Nevada Indian Environmental Coalition, and member of several state and federal telecommunications projects; Patricia (Aqiimuk) Paul, practicing lawyer specializing in Alaska Native law and mediation; Michael Pipe, independent legislative analyst, State of California; and Carmel Vivier, who works with economic development in off-reserve and on-reserve native communities in Canada.

We work together almost exclusively via the Internet. As anyone who has worked online knows, cyber communication requires special doses of patience, tolerance, and a sense of humor. It helps that some of us have met face-t o-face at different locations, including the Internet for Native Peoples Conference in November 1994 at Berkeley, California, a February 1995 meeting at Massachusetts Institute of Technology, and the Ties that Bind Conference at Apple Computer, May 1995. Better yet, some of us have met in one another's homes.

Nonetheless, there are limits to collaboration. We had to jettison one person who refused to acknowledge copyright and another who turned discussion board moderation into outright censorship. These are wrongs in any Web setting, but especially so in the context of a transnational, cross-cultural site like NativeWeb, where credibility is both fragile and absolutely crucial.

In 1997, NativeWeb was chosen as one of 20 humanities education web resources on EDSITEment, a joint project of the National Endowment for the Humanities, the Council of the Great City Schools, MCI Communications Corp., and the National Trust for the Humanities. NativeWeb is also a 'featured site' in the InterNIC Academic Guide, and has received other World-Wide Web awards.

The Internet is a crucial part of my academic and professional work. I find the most productive and enjoyable online work is building and maintaining Web-based material. It is a form of publishing and as such disseminates the results of my scholarship and practice. I have always appreciated the actual process of publishing--design, editorial responsibility, etc.--and being a webmaster satisfies this, too. Learning html is easy, especially if you've been using word-processors since the days when style codes had to be entered manually. There are some good html editors available (like BBEdit for the Mac) that handle sophisticated scripting.

I learned quickly that a Web site is never really "finished.' By its nature, a Web site requires continual attention for everything from broken links to content revision. A web site also generates email traffic. People and groups contact me to ask for and offer help. I can sometimes provide useful information, references, and referrals. Some information I receive is vital to my writing or litigation. To keep email manageable (a task in itself), I reduced to nil my participation in listservs and discussion groups, which were once a major vehicle for me. I find that my Web work and attendant email is more than enough to provide a two-way street between my work and the growing field of indigenous law around the world.

If the World-Wide Web sounds more tame than "law reform," I assure you it is not. My engagement with the Web allows me to participate in a global struggle over the political technology of world-wide communication. I say struggle because it is clear to me that global, border-crossing dialogue threatens as much as it promises. Each of us who extends our work into the Internet is a part of this struggle.

© 2000 by Peter d'Errico. All rights reserved.
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The views expressed in this column are solely those of its author, and do not reflect those of JURIST, its Advisory Board, its staff or its host institutions.
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Talkback

Where you have the last word...

  • The editor should have spared us this piece.

    For starter's d'Errico lacks a moral rudder. I am sure that he wasn't recently in South Carolina, supporting the right of an indigenous culture to fly a small flag as a reminder of many things, including the death of several hundred thousand free people, who died defending their indigenous culture.

    As for "poverty law," beyond being anti-democratic, it was and remains a flawed concept. It would never occur to d'Errico, but it is well understood by any good student of management, that you do not solve a problem by making it your own. He could start by reading The Flight of the Buffalo and the case about the janitor with a broken rake.

    As for the "political technology of world-wide communication?" Well, I am left only to ponder how much effort must have gone into writing such nonsense.

    The Internet, today, is a communication tool, that each day lets millions of people communciate with each other, which otherwise would not have happened. If, as apparently d'Errico does, one favors censorship, then that could be a bad thing. However, those of us who favor free speech are very happy that he has his own web site, has mastered HTML, and can communicate freely with others of a like mind.

    Name withheld

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