the Race to the Bottom

The courtroom was packed, noisy and stuffy this afternoon in anticipation of the testimony of Ward Churchill. Before Churchill could take the stand two other witnesses were called: Professor Tinker and Professor Russell Means.

Tinker described himself as a professor of American Indian Culture & Religious Studies at the Iliff School of Theology here in Denver, and as a spiritual leader of the Indian community Four Winds American Indian Council, also here in Denver. After telling the court that he had received his PhD in 1983, that he was a member of the Osage Nation, and that he was considered to be an elder (by others), Tinker was offered by plaintiff’s counsel as an expert on Indian tradition, Indian culture, and Indian Studies. Defense counsel did not object.

From that point Tinker was asked about Churchill’s reputation in the American Indian community, to which he answered that Churchill was widely respected within the community as a scholar, and that it was recognized that his body of work was prolific as well extremely important to the community. In terms of Churchill’s academic record, Tinker testified that he could attest to its accuracy by the fact that he frequently used Churchill’s work in his own classes. The last general area Tinker discussed with plaintiff’s counsel was the book Mother Earth by Sam Gill, another University of Colorado professor. Although Tinker’s testimony seemed a bit tangential in this area, he tried to make the point that, in his opinion, Gill’s work contains grave misrepresentations and yet despite complaints, Professor Gill had not to his knowledge been investigated.

Upon cross-examination defense counsel largely tried to make Tinker’s testimony seem irrelevant by asking whether he had ever done any research on the specific topics of the plagiarism allegations such as the Indian Arts & Crafts Act and General Allotment Act. Tinker denied having done any such research, saying that Indian Studies is a large discipline in which scholars focus on different aspects and he was focused on religious aspects. The cross examination was short but very tense, and at one uncomfortable point defense counsel spoke over Tinker to scold him, saying, “you have to let me finish the question because she can’t record both of us at the same time.”

After Professor Tinker testified, Professor Russell Means was sworn in. Meanes described himself as a chief facilitator for the Lakota Republic as well as a long time university lecturer. Means’ testimony was similar to that of Tinker, though focused somewhat more on the role of oral tradition and Churchill’s reputation for truth and honesty in the American Indian community. Means also discussed his review of the Standing Committee on Research Misconduct’s report, holding back tears and calling it a “scholarly massacre.” Although his most memorable statement that “they do not treat white professors at CU the same way,” was stricken, Means also testified to the fact that after the SCRM’s report was released he filed a complaint with the committee against CU Professor Wilkinson (originally wrongly identified as law school Dean Getches). Means said that he had found errors in Wilkinson’s work that were more egregious than any committed by Churchill, yet the SCRM issued a denial of the charges. Cross-examination largely focused on a clarification of the inquiry process triggered by the complaint filed against Wilkinson.

The bulk of the afternoon was spent on David Lane’s direct examination of Ward Churchill. Churchill began by telling the court his life’s history, from his childhood in central Illinois, to his service in Vietnam, to his college years, to settling in Boulder almost by accident, to his career path in Boulder and at the University of Colorado. The first part of Churchill’s testimony was fairly engaging. He described teaching, service and academic awards he had won as well as deeper motivating personal values.

Lane also questioned Churchill at some length about his 9/12 essay. Churchill described the essay as an attempt to explain the simple proposition that the terrorist attacks were a predictable result of U.S. foreign policy. In his testimony Churchill familiarized this idea by referencing phrases like “chicken coming home to roost,” from Malcolm X, “as you sow, so shall you reap,” and “what goes around comes around.” He explained that in writing the essay he was not espousing or endorsing a pro-terrorist stance, but was merely trying to apply the mainstream American response instead to the “other side,” saying that it could probably serve as an indicator of how U.S. action is received in other parts of the world. Churchill also explained the essay’s reference to a Nazi bureaucrat by saying that his mistake was in assuming that people would know the history of Adolf Eichmann, who facilitated the organization of the Holocaust. Churchill ended the first part of his testimony with a brief discussion of the origin and result of the media firestorm that took place in early 2005 when the 9/12 essay and Churchill himself came under great scrutiny.

After the break, Churchill resumed his description of the events that took place in early 2005, including an explanation of why he stepped down as the academic chair of the ethnic studies department in the midst of the media frenzy. Lane then transitioned Churchill into questions directly related to the allegations of the Standing Committee on Research Misconduct. From this point on, Churchill became increasingly longwinded, and occasionally Lane had to redirect him to the matters at issue. Most of the testimony was a reiteration of points that plaintiff’s counsel had already made, albeit from Churchill’s perspective.

Churchill addressed the Fay Cohen allegation by saying that he did not plagiarize Cohen, that he merely copy-edited a work in which Cohen was plagiarized, that he indicated in his editing that there could be a problem (an indication he said they chose not to believe), and that he had never included the work in his C.V.

In response to the Rebecca Robbins ghost-writing allegations, Churchill explained why and how he had produced the work. He went on to appeal to a long-standing tradition (even in academia) of ghost-writing, and even of scholars citing their own ghost-written works. In terms of alleged plagiarism of a Damned & the Dams pamphlet (by citing instead to a collaborative article written by Churchill and D&D which contained all of the information in the packet, but which was significantly more accessible to researchers than the packet itself) Churchill stressed that his citations have always intended to give credit where it is due.

In a discussion of the Fort Clark small pox epidemic, Churchill stated that he believed that the idea that the U.S. Army had intentionally inflicted American Indians with small pox was so widely known and accepted that he didn’t need to cite it. To that effect, plaintiff’s attorney offered into evidence middle school and high school texts making the same or similar points. Within this testimony Churchill critiqued the expertise of Marjorie McIntosh, with Lane’s help implying that Professor McIntosh was a mere “hobbyist” and not an expert in his field. Lane was careful to emphasize that the smallpox references in question constituted only 2 paragraphs out of a roughly 200-page text. This discussion eventually transitioned into one describing the scope of communication at the CU investigative hearings. Both the jurors and the crowd perked up a bit when Churchill described the circuitous process by which he was allowed to question his witnesses at the hearing: by typing a question and emailing it across the room to Professor Wesson, as chair of the committee, who would then read (either verbatim or sometimes in altered form) the question to the witness.

Churchill also addressed the John Smith small pox epidemic allegations. Explaining the circumstantial evidence that did exist, Churchill explained that his statement that “strong circumstantial evidence exists” was an opinion statement, and thus he did not believe that it needed to be supported by citation. Lane once again emphasized the significance of the statement at issue by drawing attention to the fact that it was one line in a work of approximately 60 pages.

The last issue touched upon this afternoon was a 1991 essay reprinted in a book in 1994, that focused on an opinion of a federal act, the Indian Arts and Crafts Act but that was written before the final text of the act was widely known. Churchill said that because the article is no longer in print he wasn’t aware of a way for him to retract it, and that his later essay that he uses now gives a more solid explanation of the act. After a brief discussion of the last issue Judge Naves kept Lane from transitioning into yet another allegation, making it clear that Churchill will likely testify for most of tomorrow.