When times collide: Ward Churchill's use of an epideictic moment to ground forensic argument.

• Author: Palczewski, Catherine Helen

1991 marked the five-hundredth anniversary of Columbus' arrival in the Americas. Around the world, and in the United States, celebrations were planned and held. Jose Barreiro's introduction to the special issue of the Northeast Indian Quarterly dedicated to "American Indian Perspectives on the Quincentenary" explains the significance of this moment: "To the degree that Quincentenary spectacles exalt Columbus as metaphor for the expansion of Western materialist culture a debate is joined that focuses issues of cultural values survival, environmental ethics and practice and sustainability in economic activity" (2). (1) Many Native Americans saw Columbus Day as a moment that called forth deliberation and debate (Barreiro 59), even as Euramericans participated in a moment of epideictic celebration. (2)

During Denver's Columbus Day parade, Native Americans sought to publicize their arguments by engaging in civil disobedience, leading to arrests and a trial. (3) Fifty Native Americans, many of them members of the American Indian Movement (AIM), briefly blocked the parade. The protesters chanted "No Parades for Murderers," and poured two gallons of blood-colored water on the street (Johnson A8). Russell Means, "who can be credited with breaking through the media wall more often than any other national Indian personality" (Barreiro 14), poured a pint of blood on a statue of Columbus, explaining "Columbus makes Hitler look like a juvenile delinquent" (qtd. in Barreiro 14). As a result of their blockade, four protesters were arrested for refusing to obey a lawful police order, obstructing a public thoroughfare, and disturbing the peace: Ward Churchill, Russell Means, Glenn T. Morris, and Cahuilla Red Elk (a.k.a. Margaret Martinez). If convicted, their combined offenses would carry merely a $1,500 fine and six months' incarceration.

As part of the legal proceedings surrounding the trial of these four protesters, activist and academic Ward Churchill authored a legal brief that was used initially to support a motion to dismiss the charges. (4) This brief argued that the seemingly innocuous Columbus Day celebrations were "expressions of non-indigenous sensibility which contribute to the perpetuation of genocidal policies against Indians" and represented the "celebration ... of [Native American] destruction" (Churchill, "Bringing" 43, 44). Although charges were not dismissed, a Denver jury acquitted the four protesters on June 26, 1992. In post-verdict interviews, jurors indicated that they had been persuaded that the Columbus Day celebrants and the city, not the defendants, were guilty of a crime (editor's note qtd. in Churchill, Indians 46). In addition, Denver canceled its Columbus Day celebrations for nine subsequent years, primarily to avoid protests from Native American groups (Cortez; Fong; Huspeni; Jackson; Lowe; Yang). Even if cancellation does not signal wider social acceptance of the argument that Euramericans committed genocide against Native Americans, the briefs arguments demonstrating the legality of the protests (and the criminality of the parade) did achieve one desired effect: suspension of Columbus Day parades.

By traditional standards of effects, the briefs argument clearly was successful, both in acquitting the protesters and in laying the groundwork for cancellation of subsequent parades. However, the effects of Churchill's brief are not confined to Denver or to the legal proceedings concerning the four protesters. (5) Churchill, a professor of Communication and of Ethnic Studies at the University of Colorado-Boulder, is Creek and an enrolled Keetoowah Band Cherokee. He also is a member of the Governing Council of the Colorado Chapter of AIM. He has been national spokesperson for the Leonard Peltier Defense Committee, a delegate to the United Nations Working Group on Indigenous Populations, and a jurist with the International People's Tribunal. His positions as a professor and an indigenous people's activist afford Churchill numerous opportunities to present his argument. In fact, Churchill later published this brief, as "Bringing the Law Home: Application of the Genocide Convention in the United States," in his collection of essays, Indians Are Us? Culture and Genocide in Native North America. In speeches around the country, Churchill repeats the briefs arguments, as well as its deductive structure, to demonstrate why "such celebrations as Columbus Day must be stopped" ("Bringing" 43). (6)

While its arguments are not new, this briefs success warrants analysis given the ineffectiveness of previous Native American arguments presented to Euramerican audiences. Native American activists consistently have introduced arguments concerning genocide during criminal proceedings. John William Sayer observes that, at their trials, those arrested as part of the 1973 Wounded Knee protests used "history as a weapon, this time in the defense of a long list of federal criminal charges" (vii). However, Churchill's use of history differs from this previous case by addressing a different audience and, ultimately, by being more successful. Protestors viewed the Wounded Knee trials as a platform from which to advance the cause of the protests; in other words, their arguments were directed not primarily at the court but at the public at large (Sayer vii). Further, although defense attorneys in the Wounded Knee trials may have challenged courtroom rules and procedures in order "to expand the definition of who was on trial to include discussions of treaties, poverty, racism, and the struggle for cultural and economic survival" (Sayer 4), this ultimately was not what garnered acquittals: many of the Wounded Knee charges were dismissed not because of the power of a historical claim of genocide but, instead, because of prosecutorial misconduct.

This essay argues that Churchill's retelling of history was effective in the legal sphere because the forensic opens the present to consideration of the past. In practice the recent past typically is considered but structurally, consideration of the remote past is possible. Forensic's structure intersects with epideictic's focus on the timeless present during moments of public commemoration, when an often-distant, even quasi-mythic past is invoked in the service of celebratory rituals of social self-affirmation. The structure of commemoration, in which some version of the past is praised and made present, intersects with forensic norms of accusation, defense, and justification. Legal battles associated with commemorative events thus represent moments of dual intersection, presenting opportunities to re-evaluate the celebration by expanding what counts as the relevant past. The trial of the Denver four afforded Churchill an opportunity to put Columbus Day on trial by making a long history of genocide against native peoples count.

Churchill's legal brief skillfully seizes this opportunity. On one level, it adeptly conforms to expectations regarding forensic argument by adopting an expert persona and objective tone, and by employing evidence accepted by Euramericans in a deductive structure. Yet, Churchill stretches the form even as he fulfills it. His deductive argument advances a counter-history in which Columbus is blamed for genocide, thus effectively shifting attention from the guilt of the protestors to the blameworthy actions of Euramericans and establishing that the parade itself, not the protest, was illegal.

However, before an argument about genocide could become a successful forensic argument for acquittal, situational conditions were needed that made this argument count. As scholars long have noted, generic forms are responses to recurrent situations, but situations vary even as they recur (Jamieson and Campbell). Accordingly, because the trial concerned actions that occurred at the epideictic moment created by the Columbus Day parade, a rupture of time in the forensic setting occurred whereby Native American re-presentations of past atrocities became relevant to the case at hand. The briefs strategy of transcending the narrow confines of the legal context gained power from the commemorative moment that generated the charges. The Quincentenary provided a unique opportunity for Native Americans and other indigenous peoples to engage (both on the street and in the courts) dominant Euramerican culture in discussion of the meaning of Columbus Day and the effect of colonization on the Americas.

PROVING GENOCIDE

Given his complex position as a Native American rhetor appealing to a Euramerican audience and judicial institution, Churchill needed to make careful argumentative choices. He was writing to a specialized body about a complex subject. In order to appeal for an acquittal, he wrote as an expert rather than as a defendant, and supported a deductive argument with carefully selected evidence. His brief is a retelling of history that challenges the moment of celebration in order to argue that the parade was illegal because it celebrated genocide and that the protestors' actions were justified.

Churchill's argument is structured deductively. The brief begins with a detailed analysis of international law. Quoting Polish jurist Raphael Lemkin's formative 1944 book, Axis Rule in Occupied Europe, and the United Nations Convention on Punishment and Prevention of the Crime of Genocide, Churchill makes clear that genocide is not only mass killing but also "actions and policies which brought about the 'disintegration of the political, social or economic structure of a group or nation' and the 'systematic moral debasement of a group, people, or nation'" ("Bringing" 13-14). He then systematically outlines how U.S. government actions, past and present, meet this legal definition of genocide. The body of the brief defines the components of genocide and describes what acts are punishable under the U.N. genocide convention. The 1948 convention "specifies five categories of activity...