Not getting the basics: Hastings name-change debate and the SF school board

A Los Angeles Times columnist has attributed the recent recall of three members of the San Francisco Board of Education to them "not getting the basics right" -- that is, putting their efforts to "remediate the country's history of injustices" ahead of the kids' education. As a Wall Street Journal columnist put it: to the school board the, "problem wasn't whether the kids were getting an education, it was whether the boarded up schools had unfortunate names. They spent months researching the question and proposed renaming a third of the system's 125 schools."

So it seems with UC Hastings College of the Law and its board of directors' quest to have the California Legislature change the name of the college because the New York Times and other media have erroneously alleged that its founder, Serranus Clinton Hastings, is responsible for genocide committed on California's Native American population.

In a February 16 article in the Daily Journal, I compared the allegations in the recently tried lawsuit brought by former Alaska Gov. Sarah Palin against the New York Times with the failure of the Times to accurately report in its October 28, 2021, front-page article what is known about Serranus Hastings' dealings with Native Americans in the early days of California's statehood.

Since then, first the judge and then the jury rejected Palin's claims because she failed to meet the high bar that New York Times v. Sullivan, 376 U.S. 254 (1964), requires to sue the media. And while expressing gratitude for the New York Times v. Sullivan rule, the Wall Street Journal editorialized: "The Palin case is no triumph for journalism. It's a humiliation for the Times, and a cautionary tale of how politically congenial narratives can lead us astray. The caution applies to all of us in the business."

It seems clear that Serranus Hastings did not kill any Native Americans. Nor is there any reliable evidence that he was present when any were killed, and substantial evidence supports the conclusion that he did not know of the despicable killings before they happened. What is known is that he testified under oath that his intention was to subdue the native people by feeding them.

However, the Sacramento State University history professor who authored the white paper prepared at the request of the Hastings administration says that Serranus Hastings' intention was to "gain a workforce -- in other words, an uncompensated, enslaved workforce." The evidence cited for this conclusion is the "Deposition of S.C. Hastings," which says that he was aware that the "Yuka Indians ... had been and were hostile to the white people," followed by: "I believe that I could by feeding one or two tribes subdue them and make them useful and have no difficulty with them."

That is a far cry from the San Francisco Chronicle referring to Serranus Hastings as a "promoter and financier of Indian-hunting expeditions," and, quoting a UCLA professor's 2016 book "An American Genocide," stating that "both [Leland] Stanford and [Serranus] Hastings had 'helped to facilitate genocide.'"

Nor is the Times' reference to "the massacres of Indians carried out by Mr. Hastings's militias" supported by direct or substantial evidence.

The local militia which is discussed at length in the white paper as having committed horrific acts was, according to Serranus Hastings' deposition, authorized by California's governor, based upon a "petition of the People." The text of the white paper includes statements concerning Hastings' involvement in the formation of militias such as: "Hastings, then, was not exceptional in his call for action, only unique in his level of influence supporting such demands at the state level. And in their positive responses to constituents' demands, governors were not unique, either. The state legislature played a role as well."

Thus, although he had a hand in petitioning the governor to authorize formation of a militia to protect his and others' property (which was all done according to state law), Serranus Hastings did not know of the atrocities before they occurred, nor did he know of the militia's leader's propensity for cruel and excessive force directed at native people.

"Convicting" Serranus Hastings on this "record" is at least inconsistent with due process of law. Perhaps it would be fairer to judge his attitude toward Native Americans by reviewing how he treated them as a judge.

In Sunol v. Hepburn, 1 Cal. 254 (1850), the plaintiff alleged that he had acquired title from a native person named Roberto and sued to recover the real property at issue from the defendants who had taken possession of it. The land had been granted to Roberto by the Mexican government and conveyed by him to Sunol in payment of a debt. The court's opinion discussed whether Roberto could have conveyed good title to Sunol, because Mexican laws prevented native people from selling land, and language in the grant to Roberto prevented him from disposing of it.

The court decided that Sunol had not received good title from Roberto and affirmed judgment for defendants. In its opinion the court describes the purpose of Mexican laws that prevent native people from transferring their lands: "All of them manifest the great anxiety which the rulers of Mexico have felt, to collect the natives together in communities and subject them to municipal regulations, to secure to them the ability to pay tribute imposed upon them for the supply of the national treasury, to induce them to forget their ancient religious rites and embrace the Catholic faith, to reform their idle and roving propensities and make them industrious and useful subjects. (Citation) The legislation on this subject was not limited solely to considerations of benefit to individuals. Its whole tenor abundantly proves, that its main purpose was the advancement of great measures of national policy in respect both to temporal and spiritual affairs -- that it was a series of continued efforts to obviate the hurtful consequences resulting to society from having in its midst a population destitute of habituations and the means of subsistence, and consequently vicious, vagrant, and easily seduced into the commission of crime."

Hastings, C.J., dissented. He pointed out that the laws preventing native people from transferring their lands were based on the fact that title to land was actually held by the government, so they were "the mere occupants of the lands from which they had never been ejected." Therefore, he reasoned, a transfer of such title was only "voidable" by the native people and their heirs, and the government. Since the prior title holder did not challenge Roberto's title, he would have granted Sunol a new trial to determine possession.

He was open to construing the Mexican laws narrowly, so that they did not prevent Roberto's title from passing to Sunol. See generally Thomas Garden Barnes, "Hastings College of the Law, The First Century" 34-37 (1978). But see United States v. Candelaria, 271 U.S. 432, 442 (1926), citing Sunol v. Hepburn; Agua Caliente Band of Cahuilla Indians v. Superior Court, 40 Cal. 4th 239, 247 (2006) ("The [U.S. Supreme Court] explained that since the arrival of the colonists on American soil, the [Native American] tribes were treated as dependent sovereign nations, with distinct political communities under the protection and dominion of the United States," citing Worcester v. Georgia, 31 U.S. 515, 549-61 (1832) (Marshall, C.J.).

And what of his paying the State $100,000 (approximately $3 million today) to start the state's first law school, which ended up "suppy[ing] a legal education at low cost, no frills" (San Francisco Examiner, March 30, 1981), and which has educated thousands of lawyers?

If the Hastings name is removed from the college, what will happen to other historical figures who are alleged to have acted badly in the past, and whose names still appear prominently?

For instance, President Franklin Roosevelt, who signed the executive order interning Japanese Americans and confiscating their property during World War II, and the members of the U.S. Supreme Court who voted to uphold that order? See Korematsu v. United States, 323 U.S. 214 (1944). Cf. Trump v. Hawaii, 138 S. Ct. 2392, 2423 (2018) ("Korematsu was gravely wrong the day it was decided...").

What about another former chief justice who hailed from California, Earl Warren? As California's attorney general during WWII, he championed the internment of those Japanese Americans, but then went on to author Brown v. Board of Education, 347 U.S. 483 (1954).

Is he also to have his name removed from the many public places where it is prominent, including on campuses of the University of California?

If such a decision is to be made, it should not be made in a vacuum created by hyperbolic accusations and journalism that are not supported by transparently reviewed substantial evidence.

At a minimum, any decision on removing the Hastings name from the college should be part of the over-all analysis and decision about how the state intends to address "the historical relationship between the State of California and California Native Americans." Executive Order N-15-19 (June 18, 2019). 