Todd Heisler © News
Spelling it out: Ethnic studies professor Ward Churchill says that the Dawes Act of 1887, a copy of which is shown at the CU Law Library, established a "blood quantum" to define Indian identity on racial grounds. But the law, which resulted in one of the nations most duplicitous land grabs, contains no mention of a blood quantum.
At the center of Ward Churchill's scholarship is his steady contention that the U.S. government has sought to deal with American Indians by wiping them out.
Sometimes the method was outright war. Other times, according to Churchill's works, it was as surreptitious as the intentional spreading of deadly disease.
But in Churchill's telling of a troubled history, there are also sinister government attempts to legislate tribes out of existence by establishing a "blood quantum" standard to determine who is Indian.
The University of Colorado ethnic studies professor has long attributed this blood-quantum rule to the notorious 1887 Dawes Act, which broke up many Indian reservations into individual holdings.
But the plain language of the statute, which resulted in one of the nation's most duplicitous land grabs, contains no mention of a blood-quantum standard.
Churchill's assertion has drawn fire from legal scholars and is one of the research-misconduct allegations that could result in the loss of his tenured job at CU.
An essay published in a 1993 volume, Struggle for the Land: Indigenous Resistance to Genocide, Ecocide and Expropriation in Contemporary North America, is an example of Churchill's explicit writing about the legislation:
"The act also imposed for the first time a formal eugenics code - dubbed 'blood quantum' - by which American Indian identity would be federally defined on racial grounds, rather than by native nations themselves on the basis of group membership/citizenship," he wrote in an essay titled Perversions of Justice: Examining the Doctrine of U.S. Rights to Occupancy in North America.
He has made the same claim in various forms at least 18 times in two decades, in essays that were republished in anthologies and other works.
CU's standing committee on research misconduct is also examining a related issue: Did Churchill similarly mischaracterize the Indian Arts and Crafts Act of 1990 as defining Indians by blood quantum? That law, backed by most tribes, was intended to stop non-Indians from marketing their work as authentic Indian art.
In a recent interview with the Rocky Mountain News in his CU office, Churchill conceded that the Dawes Act does not specifically refer to a blood quantum.
"No, it doesn't say that word in the Dawes Act itself, the General Allotment Act per se," Churchill said.
But, he said, his essays accurately convey the intent of the law.
"You look at it as a whole, and every single thing I say about it is absolutely correct," he said.
The Dawes Act, which still outrages Indians, called for reservation lands to be divided into homesteads. The land was to be distributed among individual Indians and Indian families, instead of being under the tribe's communal ownership.
Much of the land quickly became plunder instead, finding its way into the hands of white settlers or speculators.
Churchill's point about the blood-quantum standard is that, through intermarriage, future generations of Indians would be of progressively less native blood, until they couldn't meet the legal standard and tribes would disappear altogether. That, Churchill says, was the government's intent from the beginning.
"Ultimately, there is precious little difference, other than matters of style, between this and what was once called the 'final solution to the Jewish problem,' " Churchill wrote in a 1994 book titled Indians Are Us? Culture and Genocide in Native North America.
Comparisons between the U.S. and Nazi Germany are a frequent theme of Churchill's writing and speeches. The Nazis used a blood-quantum standard, or "eugenics code," to police the purity of the Aryan race.
The Dawes Act didn't include a definition of Indians only because it was accepted at the time that Indians were defined by percentage of blood, Churchill said in the interview with the News.
"And what would they consider to be so self-evident that they wouldn't need to articulate it? Ethnological definition: half-blood or greater - that's standard at the time. In fact, ethnologically speaking, it's still standard," Churchill said.
That the government's goal was to eliminate Indians by diluting their blood through intermarriage is also self-evident, Churchill said.
"Can you do arithmetic?" he said. "Sometimes the 'duh' factor gets so loud. I really have to cite this to people who are capable of tying their shoes without instructions?"
Other scholars have disagreed with Churchill's work regarding the Dawes Act.
Not only is there no mention of a blood-quantum provision in the wording of the statute, but it also does not jibe with any subsequent court ruling or federal regulation, said law professor Carole Goldberg, who heads UCLA's Joint Degree Program in Law and American Indian Studies.
Dawes devastating to tribes
While the Dawes Act did not include a blood quantum, the law clearly was intended to radically transform Indian life by substituting private property for the tribal custom of communal ownership.
Less clear is whether Congress' intent was to eliminate Indians or tribes entirely, as Churchill says.
Delos S. Otis, who wrote a history of the Dawes Act in 1934 for the Bureau of Indian Affairs - which has had its own checkered history - noted that people with the darkest motives usually remain silent.
"There is plenty of evidence to indicate that there were definite and powerful interests behind allotment which were not philanthropical at all; that homesteaders, land companies, and perhaps railroads, saw allotment as a legal way at getting at wide areas of Indian land," Otis wrote.
U.S. Sen. Henry Dawes, of Massachusetts, and his backers saw themselves as humanitarians, according to Otis, trying to fold Indians into the American melting pot.
"The supreme aim of the friends of the Indian was to substitute white civilization for his tribal culture, and they shrewdly sensed that the difference in the concepts of property was fundamental to the contrast between the two ways of life," Otis wrote. "That the white man's way was good and the Indian's way was bad, all agreed."
Dawes told a conference of humanitarians in 1885 that the Indian custom of tribal land ownership stifled the desire for economic self-improvement.
"There is no selfishness, which is at the bottom of civilization," Dawes said, referring to what he considered the drawback of communal ownership. "Til this people will consent to give up their lands, and divide them among their citizens, so that each can own the land he cultivates, they will not make much more progress."
Skeptics, including Colorado Sen. Henry Teller, said that land speculators had selfishness aplenty and were eagerly watching the progress of the Dawes Act through Congress.
"The real aim of this bill is to get at the Indian lands and open them up to settlement. The provisions for the apparent benefit of the Indian are but the pretext to get at his lands and occupy them," warned a minority report by the House Indian Affairs Committee.
That view proved prophetic.
Despite safeguards that Dawes built into the act, much of the allotted land soon found its way from Indian families to speculators, mining firms and white settlers.
Reservation land in excess of the amount needed for allotments was to be available under the Dawes Act for sale to the federal government - with the consent of the tribes. That technicality was quickly abandoned or circumvented.
John LaVelle, a University of New Mexico law professor and a member of the Santee Sioux Nation, wrote in a 1999 essay: "The act had a devastating impact on the tribes, resulting in a loss of two-thirds of all Indian land holdings - 90 million acres - by the time the allotment process was brought to a halt by congressional passage of the Indian Reorganization Act of 1934."
Links among other works
The idea that Dawes held a blood- quantum provision appears in the works of two other scholars who once were closely tied to Churchill. In fact, the university's investigative committee is looking at links among some works of the three authors from the same time period.
Marie Anne Jaimes, who also goes by the name Annette Jaimes, and Churchill were married in 1988 and divorced in 1995. She was a lecturer in the CU program that evolved into ethnic studies.
Rebecca Robbins was among the professors who supervised Jaimes' 1990 doctoral dissertation at Arizona State University in Tempe.
Works by Churchill, Jaimes and Robbins appeared in some of the same books and journals during the late 1980s and early 1990s. But none of the works cite specific language in the law to bolster the claim of a blood-quantum standard.
Jaimes said she absolutely believes the blood-quantum claim but is unclear about where it came from.
"I was already focused on the blood quantum for my doctoral dissertation as a public-policy issue," said Jaimes, who now teaches at San Francisco State University. "That's how I interpreted it (the Dawes Act). Here's the first time that we see the language used to make a distinction between so-called full-bloods and half-bloods."
The law makes no such distinction.
Jaimes said that Churchill played a role in her thinking.
Todd Heisler © News
Protection act: Former U.S. Sen. Ben Nighthorse Campbell, shown on his ranch near Ignacio, co-sponsored the Indian Arts and Crafts Act to help fight bogus art.
"At the time, Churchill had a lot of influence on what we wrote," Jaimes said. "We were working very collaboratively."
But, Jaimes says now, Churchill wasn't always scrupulous about the facts.
"There's always a kernel of truth, but I think he's a little loose in terms of his perception of scholarship, if you can call it that," Jaimes said.
Churchill said there are similarities in his works and those of Jaimes and Robbins because he wrote them all. Churchill said he allowed Jaimes and Robbins to take the credit in order to help them academically.
Jaimes said that isn't true.
Robbins, who now lives in Montana, could not be reached for comment. But Jaimes said she is certain that Robbins was the author of her own work.
Churchill never cites specific wording of the Dawes Act or the Arts and Crafts Act to support his claim of a federal blood-quantum standard. In some cases, he supports his assertion by footnoting the Jaimes and Robbins essays - the same essays he now says he wrote - which don't directly cite the laws, either.
In a 1986 essay titled Genocide: Toward a Functional Definition, for example, Churchill referred to a blood-quantum standard as part of a federal policy for forced assimilation of Indians. The paragraph was endnoted but contained no specific reference to the Dawes Act.
Two years later, Churchill made the same claim in a journal called Issues in Radical Therapy: New Studies on the Left.
Churchill cited the Otis history. But Otis' work - which includes the full text of the Dawes Act - makes no reference to a blood quantum.
The same issue of Radical Therapy contained writing by Jaimes and Robbins.
Jaimes' essay in Radical Therapy refers to the blood-quantum standard. The same essay appeared under Jaimes' name in a 1992 collection called The State of Native America: Genocide, Colonization, and Resistance. The volume, edited by Jaimes, included a work by Robbins and three essays written or co-written by Churchill.
Churchill's co-authors in that book included Glenn Morris - a professor at the CU Denver campus who would be arrested with Churchill while blocking Columbus Day parades in Denver - and Winona LaDuke, who would be -Ralph Nader's running mate in the 2000 presidential election. Robbins' essay in the 1992 book referred to a racial code as part of the Dawes Act but did not use the term "blood quantum."
The following year, Churchill published his Struggle for the Land, which included the blood- quantum claim. Endnotes again included no citation in federal law but referred to the Jaimes and Robbins essays in the volume of the previous year.
Also in the 1993 work, Churchill quotes CU historian Patricia Limerick in support of the claim that blood quantum was intended to eliminate Indians as a legal entity through intermarriage. But the passage he cites from Limerick's The Legacy of Conquest refers not to the Dawes Act, but to a proposal floated - then dropped - a century later by the Rea-gan administration for administering the Indian Health Service.
Limerick declined to comment for this article.
In an endnote, Churchill wrote, "It is noteworthy that official eugenics codes have been employed by very few states, mostly such unsavory examples like Nazi Germany (against Jews), South Africa (against 'Coloreds') and Israel (against Palestinian Arabs)."
But Israel has no such code.
"The term 'Palestinian' is not a legal term. It has no relevance for Israeli law," said Alon Harel, a law professor at Hebrew University in Jerusalem.
The U.S. does have federal statutes - mostly dating from the 20th century - that refer to percentage of Indian blood.
For example, a 1925 act used percentage of blood to regulate the inheritance of Osage land. The Osage were among several tribes excluded from the Dawes Act, according to LaVelle.
The Woodrow Wilson administration briefly used blood as a criterion for releasing allotted land from trust status to deeded title, LaVelle wrote.
Degree of blood also has been used at various times to determine who gets federal benefits earmarked for people of Indian heritage who are not members of tribes, such as education grants.
The U.S. Supreme Court has ruled twice - in 1896 and 1978 - that tribes determine their membership, said LaVelle and UCLA law professor Goldberg.
LaVelle, the University of New Mexico law professor, has written that he's concerned that the false claim of a blood-quantum standard is seeping into scholarly literature about Indian law. By his count, eight essays by nine authors included the claim, each citing in their footnotes either a Churchill essay or the Jaimes essay that Churchill now says he wrote. One of the authors picked up the out-of-context quote from Limerick's work, LaVelle wrote.
Heated academic crossfire
Even as Churchill was developing the idea of a blood quantum, his work was coming under scrutiny by other scholars.
LaVelle began playing detective in the early 1990s, following the trail of Churchill's assertion of a blood quantum.
LaVelle has declined to speak for publication. But in a 1996 essay in American Indian Quarterly, he slammed Churchill for misrepresenting the Dawes Act and for misquoting both CU professor Limerick and UCLA scholar Russell Thornton.
He also denounced Churchill for using a false interpretation of the Dawes Act to attack tribal governments that would not recognize him as a member.
"And so, according to Churchill, Indian tribes today deserve to be violently opposed for implementing tribal citizenship standards that, in Churchill's scheme, are nothing more than a mirror-image of the oppressive (Dawes Act's) 'formal eugenics code,' " LaVelle wrote.
In 1999, LaVelle wrote a 50-page essay on the subject - including the verbatim text of the Dawes Act - for the Indian studies journal Wicazo Sa Review.
Going through Churchill's works essay by essay, LaVelle found Churchill never cited evidence for his claim that Dawes held a blood-quantum standard.
"This lack of a supporting citation is explained by the fact that . . . the (Dawes Act) never contained any such federally imposed eligibility 'code' at all," LaVelle wrote in the 1999 essay.
Although obscure in terms of public awareness, LaVelle's debunking of Churchill was known among some scholars who read academic journals.
But any effect on Churchill is hard to discern. Four years after LaVelle's Wicazo Sa essay, Churchill was still including the blood-quantum claim in two anthologies of his works.
Meanwhile, CU has awarded steady raises to Churchill, with administrators citing the excellence of his scholarship.
CU did not begin addressing the issue until earlier this year, when LaVelle sent copies of his essays to university officials looking into charges that Churchill had committed academic misconduct.
In the interview with the News, Churchill cast LaVelle's criticism as mostly personal.
"His point is nobody is paying attention to him and he would wish it were otherwise," Churchill said.
In talking about the frequency that his own scholarship is cited compared with LaVelle's, Churchill said that one annual report showed him with "145-odd law review citations out there. . . . John LaVelle's got about, oh, I don't know, 16, 18."
But Goldberg said that LaVelle's work is "pretty devastating to Churchill's position."
"He (Churchill) never came back after John wrote that and defended himself, because I don't know what he could say," Goldberg said.
morsonb@RockyMountainNews.com or 303-442-8729