Churchill v. University of Colorado: Morning of March 20, 2009

The morning began with a continuation of the deposition of Professor Mann, read by the attorneys, with sometimes, amusing interpretations of Professor Mann’s answers. The jurors, courtroom visitors and the attorneys occasionally laughed.

Professor Mann tried to avert from the questions by replying that she did not remember and by elaborating on her answers, which is what attorneys aspire to avoid during cross-examination. She commented that free speech and academic freedom were crucial in scholarship and that even if she vehemently disagrees with someone’s view, she believes it is important for that view to be expressed.

CU’s attorney asked numerous times, and Professor Mann replied several times that she had not seen primary and secondary sources supporting Professor Churchill’s proposition that smallpox blankets were dispersed to the American Indians. She then clarified that “It doesn’t mean that [the primary or secondary source] doesn’t exist. It means I haven’t seen it.” The attorney established, by getting a positive response from Professor Mann, that “it is not appropriate” to fabricate facts that are not supported by primary and/or secondary sources supporting some of Professor Churchill’s propositions about the spreading of smallpox to the American Indian population.

The line of questioning moved to alleged academic misconduct of Professor Churchill’s proposition about a commander at the St. Louis infirmatory recommending to the American Indians to seek shelter with healthy relatives as far away as possible in order to recover from small pox. Professor Mann described that, while unsupported by primary and secondary sources, “that’s a traditionally logical thing to say” because it’s general knowledge that ill American Indians sought the company and care of healthy family members to increase their rate of recovery.

A brief redirect followed with Professor Mann reiterating her earlier point that the audience for which a work is written is a critical consideration for an author when he or she is deciding which footnotes to use. She further explained that summary footnotes are more appropriate for works intended for a general audience, like the college freshman and sophomores who Professor Churchill was writing for.

Professor Mann described a situation where she wrote an article with footnotes and was told by the editor to remove the footnotes.

CU’s attorney, determined to drill the point that work unsupported by primary and secondary sources is not appropriate, asked this question again on re-cross, which concluded Professor Mann’s deposition.

Judge Naves then explained to the jurors that while it is general procedure for Plaintiff to present his/her case-in-chief and call his/her witnesses, CU would call a witness out of sequence because that witness would not later be available during CU’s case-in-chief.

With that, the defense called Robert Clinton, an affiliated law professor from the Universitys of San Diego and Arizona State. He has taught Indian law and Indian history since 1974 and was on CU’s investigative committeee, investigating Professor Churchill and allegation of research misconduct.

His testimony was persuasive because his speech was incredibly clear and articulate. Professor Clinton’s stories were logical and colorful, even as he desribed dry subjects like peer-review and the wording of the General Allotment Act. He was also quietly charismatic, in my opinion. He told a story to the jury and was very patient. CU’s attorney, O’Rourke didn’t even have to prompt Professor Clinton with many questions because Professor Clinton’s story naturally proceeded where O’Rourke wanted him to go. This largely uninterrupted testimony was very successful.

Professor Clinton described to the jury what peer-review meant and proceeded to describe the colonization by Europeans of American Indian territory. He proceeded to explain that he was a chief justice in one of the American Indian tribal courts and that because of his impartial role as a judge, he wanted to insure that Ward Churchill had an opportunity to be heard and to defend himself when Clinton served on CU’s investigative committee.

The testimony then moved to research misconduct, and Clinton described, and repeated this many times throughout his testimony, that the job of the investigative committee was not to establish whether or not Professor Churchill’s propositions were true but whether they were supported by primary and secondary sources. He explained the importance of supporting propositions with sources and likened this process to a medical researcher’s support of medical research with data. He further said that a scholar is doing other scholars a “disservice” by writing propositions without support or inappropriately citing propositions because other scholars rely on the propositions in that writing. 

O’Rouke asked whether Professor Clinton thought that Professor Wesson was biased in leading the investigative committee and Professor Clinton replied that she was not.

Questioning then turned to the General Allotment Act. Professor Clinton eloquently educated the jury (as he did throughout his testimony) about the Allotment Act and the eugenics code theory and Ward Churchill’s interpretation of those topics. He proceeded to explain that Professor Churchill engaged in academic misconduct when he cited the General Allotment Act as the source for his propositions about the blood quantum theory because the Act does not mention blood quantum and nor does it mention half or quarter blood tests of "Indianess." Clinton also explained that he understood eugenics to mean to be something that excludes, segregates, or decimates certain races, which is associated with the Nazis Germany. He explained that the investigative committee thought that Professor Churchill also engaged in academic misconduct when he proposed that the General Allotment Act was the first instance of Congress enacting an "eugenics code." He clarified that the committee's point of citing the Rogers case in the report was to demonstrate that during the 19^th century, U.S. law looked at “Indians ... through a racial lens,” not to show that it was a eugenics case. He further proceeded to put a hole in the testimony of one of the Plaintiff’s experts that the committee had misused the Rogers case, and therefore, not following its own standards of academic research conduct.

The testimony shifted to Professor Clinton describing that publishing a work under another scholar’s name also constitutes research misconduct even if it means doing more work. He reiterated that the content is not what matters in research misconduct – it’s the plagiarism and the misuse of sources.

The next line of questioning was about a work Professor Clinton co-authored in a subsequent edition in 1982, The Handbook on Federal Indian Law, most likely in anticipation of the plaintiff’s attack of this topic. He explained, that while the name Felix Cohen was used as the author of the book, an explanation followed that Cohn didn’t actually write the 1982 edition and listed the authors. The editors felt it was important to attribute the book to Cohen because he wrote the first edition and it was “the Bible of Indian law,” as Professor Clinton puts it.

Again, the defense tried to establish that Professor Clinton’s evaluation of Professor Churchill’s works was impartial and fair while he sat on the investigative committee by highlighting that Professor Clinton sat on the bench as the chief justice of an Indian trial court.

The direct examination and the morning session concluded with several questions about the Indian oral tradition and Professor Churchill’s use of it to support some of his propositions. Professor Clinton educated the jury about the importance of oral tradition and the passage of information from generation to generation in the American Indian culture. He explained to the jury that the committee reached the conclusion that Professor Churchill engaged in research misconduct because at the time he made his claims, he apparently did not support his findings with sources that actually supported his claims.  According to Clinton, Churchill then used the defense that he was relying on oral tradition but failed to produce any source for the applicable oral tradition.  He apparently did so only after the committee began to investigate him.