Skillfully and dramatically

March 22, 2009

Race to the Bottom described Eric Cheyfitz’s testimony as follows. Sounds like there were as impressed with Dr. Cheyfitz as all the rest of us have been since he stepped into the fray.

Plaintiff’s counsel then called Professor Eric Cheyfitz to testify. Mr. Lane began the questioning on Professor Cheyitz’s scholarship and background. Cheyfitz is an endowed chair of the American Studies department at Cornell University. American Studies is the history, politics, and social life of the United States, now expanded to include the Americas. His scholarship includes American Indian studies. He is familiar with Federal Indian law and general traditions and histories associated with his specialty: American Indian studies. Mr. Lane offered Cheyitz as an expert in Indian Studies and Indian law, which Judge Naves accepted after no objection by CU’s counsel.

Professor Cheyfitz testified as follows regarding Professor Churchill:

Churchill’s work is widely known as one of the preeminent scholars in the field of Indian studies. Chefyitz has been reading Churchill’s works for about fifteen years. He met him in January 2007 when he came to CU to testify on Churchill’s behalf. The quality of Churchill’s scholarship and academic work is “exceptionally high.” The witness hasn’t used any of Churchill’s works in his own classes but refers to them “all the my classes.” Chefyitz described Churchill’s reputation within the field as “widely known and respected, and controversial as well, although many of us are controversial.”

Cheyfitz explained Churchill is controversial because Churchill has pointed out that the Jewish Holocaust has taken over the entire field of Holocaust studies, arguing that the Native American Holocaust is also worthy of study. The witness is Jewish but recognizes the importance of the Native American Holocaust in history, as well as the denial of the “Native American genocide” by the U.S. Government throughout its history. He says this is a powerful debate within the field of American Indian Studies. Cheyfitz summarized Churchill’s position, citing Churchill’s proposal that the U.S. Government intentionally carried out a holocaust against Native Americans, although he is not alone among American Indian scholars in holding this position.

Mr. Lane asked how “Critical Race Theory” (CRT) questions the “master narrative” given by conquering Europeans.  Cheyfitz stated that CRT relates to how judicial decision are not only affected by the law, but also by considerations of race, class, gender, and politics that impact judicial decisions as well. Mr. Lane wove the challenging of the “master narrative,” the account of American history generally accepted by the establishment, throughout the remaining questions.

Mr. Lane then asked Professor Cheyfitz how he learned about the controversy of Churchill’s 9/11 essay. Cheyfitz first learned of the essay through the national media and believes that it received tremendous national media attention. Cheyfitz has read the essay and written about his conclusions. He wrote that the Eichmann reference “demonized the people in the trade towers” but overall thought it was one of the best essays on civil disobedience in the tradion of Henry David Thoreau’s “Civil Disobedience.”  As far as comparing American foreign policy to Nazis Germany, Chefyitz stated it was useful in some ways and is what Churchill is known for. He pointed out that Nazi concentration camps were modeled on Indian reservations in America.

Mr. Lane asked if Cheyfitz read the investigative committee report and what his impressions were. Professor Cheyfitz said he did read the entire report because the charges against Churchill and the potential loss of Churchill’s scholarship, if upheld, would be a “blow to the field”of American Indian Studies in the US.  This, he said is true, for two additional reasons: this probe constituted an extensive investigation of a well-respected scholar for research misconduct and drew national media attention with a resulting negative impact on the field. Cheyfitz thinks the scholars in the field of American Indian Studies who read the whole report, as he did, were skeptical of the charges against Churchill. His reaction to the report is encapsulated in an essay entitled “Framing Ward Churchill.” The essence of this essay is that the charges were “fundamentally baseless and motivated by the political circumstances surrounding the 9/11 essay.”

Mr. Lane then questioned Cheyfitz on a letter he and a group of other academics supporting Churchill wrote to formally file a complaint of research misconduct against the committee at CU. Cheyfitz testified that the committee’s actions in investigating Churchill’s academically proper interpretations of the Allotment Act and the smallpox incident were inaccurate. The committee overlooked several pieces of evidence that supported Churchill’s arguments. Cheyfitz also found the plagiarism charges “frivolous.” After filing a formal complaint of research misconduct against the committee with CU, Cheyfitz never received a response. Cheyfitz agreed that CU was “duty bound” to investigate all complaints of research misconduct, and though this complaint came from outside the university, unlike those against Churchill, Cheyfitz has still never received any response that the investigation should now be conducted by an independent body outside of the CU sphere of infuence due to the conflict of interest or the appearance of bias related to the deficiencies pointed out by the Cheyfitz (and others) complaint of research misconduct by CU’s investigative committee.

Mr. Lane then went through all the allegations against Churchill, except the allegation of plagiarism, one by one:

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.

Mr. Lane finished his questioning of Cheyfitz on plagiarism, which Cheyitz agreed is wrong, adding it should be understood that there is no single, simple definition of plagiarism. Cheyfitz testified he has checked Churchill’s footnotes randomly in his general scholarship and has discovered those footnotes are accurate. Cheyfitz added he has never seen anyone fired in the academic world for similar charges.

Cross Examination by Mr. O’Rourke:

Cheyfitz stated he thinks there should have been at least one American Indian studies expert on the committee, not just someone familiar with Federal Indian law (Robert Clinton), and there was not.

Mr. O’Rourke then questioned Cheyfitz on the definition of plagiarism. Cheyitz stated context is extremely important in defining plagiarism, and he agrees with Posner’s definition of plagiarism, which requires some gain on the part of the person plagiarizing another’s work. Cheyfitz said he does not completely agree with Churchill’s definition which does not explicitly include context, noting that some people accept Churchill’s definition but he thinks it needs fine-tuning. Mr. O’Rourke then made the point that when Churchill was an associate professor seeking promotion to full professor, one of the considerations in his promotion was the quality and quantity of his published works. The implication is that Churchill did indeed have something to gain from plagiarism.

To summation, while Mr. O’Rourke tried to make points with the jury by going over the issues of research misconduct with Cheyfitz, Cheyfitz skillfully and dramatically countered O’Rourke in every instance. 


5 Responses to “Skillfully and dramatically”

  1. I noticed that the illiterate nutjobs over at are still ranting out of ignorance and spewing lies. Nice of you to try to educate them about the facts of particular academics. I caught someone claiming that Peter Lang is a “pay-to-play academic vanity press.” Except that no academic press can be a vanity press, by definition. Except that authors do not pay Peter Lang a cent. Except that it is a well recognized transnational publishing company that a vast number of academics publish with.

    These shitheads can’t get even the simple details right, and they’re trying their tooth on something as hefty as Churchill’s case. Laughable poltroons.

  2. Just a follow up: this means that when they are busy dismissing and slandering academics called as experts to the trial, they themselves have done no research whatsoever into what an academic press is, what is peer review, how one gets published, etc. They think the whole world is dumb, except for their little corner of neocon cretins, hanging by their nails to the margins of cyberspace in the hope that maybe Dick Cheney will be President some day.

  3. jwpaine Says:


    PB is not its comments section, and comments there are each author’s own responsibility.

    So if you want to refute things said on PB, try to limit yourself to things said on PB. Not in its comments section (unless, of course, you want to refute comments Whitmer has posted there, as well).

    Also, please do learn the difference between libel and slander. You’re embarrassing yourself.

  4. Paine, there may be a difference between libel and slander…but that is irrelevant in your case as you are guilty of both.

    On my blog, when people say utter BS, I correct them. I am not surprised to learn that your blog has a different policy.

    The only thing that I find embarrassing is how supposed adults devote themselves to obsessively stalking and smearing someone else. Did Churchill refuse to kiss you on the lips? Did he give you a D- on a paper?

  5. jwpaine Says:

    Since you’ve never heard me speak, Forte, your charge of slander is spurious.

    In any case, you might want to study up on insult. Benjie can give you some pointers, at least as to form and content; he does have a gift in that regard. Effectiveness… Well, one needs a germ of truth for an insult to be truly painful to its intended victim. And unacquainted with the truth as they are, neither Benjie nor the rest of the DBAB would be able to help you there.

    And for the record, Churchill has never refused to kiss me on the lips.

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