News from Days 9 & 10 of Ward Churchill’s Lawsuit Against the University of Colorado

Day 9 (Thursday, 19 March, 2009) and Day 10 (Friday, 20 March, 2009) produced what seemed to be a vast amount of testimony concerning the details of Churchill’s scholarship. If there is anything of value in witnessing such a debate, is that there is a debate, a very serious one that demonstrates that there is nothing that is unambiguously “correct” about the investigation conducted by the University of Colorado into Churchill’s published work. There is nothing that was presented that is beyond the realm of serious contention, nothing that was indisputable. As a result, those who sought to reaffirm the validity of their findings seemed to become even more rigid, even more assertive, less open to the possibility of their own errors of judgment, and those defending Churchill appear even more cutting. In that light, I will present just some of the key points presented by each of the several expert witnesses, as extracted, with only minimal edits, from the sources listed at the bottom of the post.


Dr. David Stannard, University of Hawaii professor of American Studies: Stannard said that the investigation of Churchill a “witch hunt” and the CU investigative committee was “biased.” He testified that estimates of American Indian deaths from smallpox have long varied and have usually tended toward the more conservative end of the spectrum. He added that he did not think Churchill was wrong in stating that deaths may have reached as high as 400,000 in the wake of the epidemic. On cross-examination Stannard was told that Churchill cited Russell Thornton’s book, American Indian Holocaust and Survival, to arrive at his numbers, but that the highest figure reached by adding all of Thornton’s numbers was 144,000 American Indians killed by the epidemic. Stannard explained that the committee ‘s conclusion was incorrect: the source cited by Churchill only cited one other source (Stern & Stern) when discussing the number of deaths and this other source contained a table of deaths and if the high numbers listed on the table were added together it equaled 382,000 deaths. Stannard asserted that since this number is close to 400,000 and because the numbers in the table were admittedly incomplete there was a legitimate basis for Churchill to say the deaths may be as high as 400,000. Stannard testified that any “reasonable scholar” could have come to the same conclusion as Churchill, and therefore the CU standard for misconduct had not been met.

Dr. Barbara Mann, University of Toledo English professor: an expert on the smallpox episode on the Upper Missouri River in the 1830s, said she thinks there is good evidence that the U.S. Army tried to purposely infect American Indians with smallpox. Mann said Churchill’s claims about the smallpox epidemic of the 1830s were supported by the historical record. “I honour his work,” she added.

Dr. Philo Hutcheson, Georgia State University professor of education: argued that the appropriate punishment for Ward Churchill, would have been to dock his summer pay or maybe suspend him for a year with pay, assuming all of the charges against him were correct. Hutcheson also said several questionable footnotes from five to six pages of writings out of thousands of pages does not represent a pattern of misconduct. Hutcheson also agreed that CU should have followed the recommendation of the Privilege & Tenure Committee and suspended Churchill without pay for a year, instead of firing him.

Dr. Emma Perez, CU ethnic studies professor: Perez became the Chair of the department when Churchill resigned the post in early 2005. Perez stated that she “appalled” by the CU investigative committee’s report on Churchill, saying the report itself contained “fabrication” and “falsification.”

Dr. Eric Cheyfitz, Cornell University American Studies professor : [This extract is copied in its entirety directly from The Race to the Bottom concerning a comprehensive set of rebuttals to charges made against Churchill’s scholarship, led by questioning from Churchill’s attorney, David Lane]

Misrepresentation of the Allotment Act. Cheyfitz stated that Professor Lavelle’s critique of Churchill’s conclusions was “shoddy scholarship” based on inaccurate characterizations of the tribes as autonomous and other misunderstandings of their relationships to the federal government.

Federal blood quantum requirements. Cheyfitz explained that the federal government imposed a racial definition of Indian identity on the tribes, rather than their accepted definition based on citizenship and culture. Churchill’s position is that it’s racist to use blood quantum requirements to define Indian identity because, as there is more intermarriage over time between Indians and other racial/ethnic groups, eventually there will be no one left according to blood quantum who is defined as Indian. So what the federal government is doing is eliminating Indians as a group through the blood quantum definition.

The first eugenics code. Cheyfitz agreed that although the word “eugenics” does not appear in the Allotment Act, the Act implies eugenics in its implementation by federal agencies. Cheyfitz explained the difference between a code and case law is that codes are passed by Congress and case law is made by judges. So Professor Clinton was wrong in saying the first eugenics code was in the Rogers case, both because that is common law and not a code and because, according to Cheyfitz who has written extensively on that case, Rogers does not deal with eugenics as the Allotment Act does.

Use of quotation marks. The committee asserted that quotations around “mixed blood” and “full blood” Indians in Churchill’s work implies the Allotment Act contains these terms verbatim, and because the Act does not expressly contain this language, this constitutes academic misconduct. Cheyfitz disagreed and stated quotation marks serve many purposes, and the use of quotations here does not necessarily imply these words were used in the Act.

Ghost writing. The committee found research misconduct on Churchill’s part where he ghost wrote the Rebecca Robbins essay “from the ground up” and then cited that essay in his own work. Cheyfitz opined there is nothing wrong in this because another professional (Robins) signed off on the essay and applied her authority to it, so she stands behind those ideas as if she wrote it herself. There was no coercion or deception involved, and no basis for research misconduct allegations. Likewise, Churchill’s work on the Indian Arts and Crafts Act did not constitute research misconduct.

John Smith and the deliberate spread of smallpox. Churchill’s work contained two sentences on this topic, positing his belief that there is strong circumstantial evidence that Smith introduced smallpox to an Indian tribe intentionally for the purpose of clearing the way for the invaders. Mr. Lane asked if these two sentences were fact or opinion. Cheyfitz answered they were opinion, but the committee “turned it into the absolute statement” and used it as “another brick in the building of their case of research misconduct.” Cheyfitz stated this “is a completely baseless charge in all respects” because the citation Churchill used did support his conclusion, despite the committee’s assertion that it did not. Chefyitz characterized the John Smith issue is up for debate between reasonable scholars, and the committee’s portraying it otherwise and endorsing the opposite position from Churchill’s as an absolute constitutes research misconduct in itself. Cheyfitz said there is reason to believe that smallpox was deliberately spread amongst Indian tribes because there were vaccines available for the disease in North America as early as the 1700’s, but they were not made generally available to Indians by the federal government which knew that Indians were particular vulnerable to this disease.

The U.S. Army committed genocide against the Indians. This was one of Churchill’s conclusions that the committee found to be contrary to his cited sources. The committee found Churchill misrepresented his sources and fabricated his conclusions because his own estimate of Native Americans who died in the smallpox epidemic was 144,000, while he cited a source that put the number at 400,000. Cheyfitz said that the assertion as to how the Indians were killed, through deliberate genocidal means, is the real issue here, not the disparity in numbers. Cheyitz stated this is not a significant misrepresentation in the overall context because the source cited from Thornton also cited Stern & Stern that did give the 400,000 number.


Dr. Marjorie McIntosh, retired University of Colorado history professor: she was asked about various sources that purportedly backed up Churchill’s account of what happened in the 1837 smallpox epidemic among the Mandan Indians, and was asked why her committee, the CU investigative committee, did not take those into account when judging Churchill’s work. She claimed that they did look at those sources and found them either irrelevant or improper.

Dr. Robert Clinton, Arizona State University law professor: According to a number of the blogs covering the trial (see below), Clinton was apparently a very forceful and eloquent speaker who caught the attention of the jury and who spoke almost without interruption or prodding with questions from the CU defense team. He reiterated most of the basic points made, repeatedly in the trial, about the infractions committed by Churchill, the misuse of sources, plagiarism, and so forth. As the live bloggers followed him, he seemed to be making tremendous inroads against Churchill, except that he was then followed by Cheyfitz above who, it seems, successfully overturned each of his points (whether he did so in the minds of jurors is another question). In summary, Clinton, who served on the CU investigative committee, said Churchill violated academic standards when he wrote an essay and attached another scholar’s name — Rebecca Robbins — to it. Worse yet, Churchill then cited Robbins’ essay — which was actually his own — in one of his subsequent works without disclosing he was the original author of the cited source. It does not matter, Clinton, argued, if Robbins agreed to have her named placed on the piece. In addition, he claimed that Churchill was unable or unwilling to provide any proof that he had Robbins’ consent in crediting her with the essay (not that Robbins has ever complained about this matter, we must note). Quoting himself, under a different name, is “like fabricating your own data,” Clinton argued. Clinton also accused Churchill of “disrespecting” American Indians by attempting to credit their sacred tradition of oral history for evidence of his statements about the smallpox epidemic along the Upper Missouri River in the 1830s. Churchill tried to convince the committee “after the fact” that oral traditions were his major sources for contending that the U.S. Army purposely introduced smallpox to the Mandan Indians. Clinton made this strong point: “To trot out oral tradition and hide behind it as a defense, when you didn’t rely on it in print, is — we thought — totally disrespectful of the oral tradition.” The CU investigative committee also contacted the Mandan tribe cultural resource officer to ask if she was aware of any oral traditions that would back up Churchill’s account, Clinton testified — she said there were none. The committee then contacted three more sources “close to” the Mandan tribe, and they too were unable to substantiate Churchill’s claim of oral sources (note to readers: as those anthropologists familiar with the Hindmarsh Island Bridge controversy in Australia, involving anthropologists sued for colluding with select Aboriginals in allegedly fabricating secret oral traditions, the fact of such disagreement on whether such traditions exist or not, may be entirely inconclusive.) “If we could have concluded that the data supported him, that would have been the end of the story,” said Clinton, “It’s not a question of academic debate, it’s a question of research techniques.” He also severely faulted Churchill for suggesting that the words “blood quantum” were in the General Allotment Act, by placing the words in quotes: “It’s like a medical researcher saying this treatment works and making up the data to support it. If there’s a defect in the underlying primary researcher’s statement, other scholars are going to rely on it and may come to erroneous conclusions.”