An alternative option for renaming UC Hastings College of the Law

The Daily Journal's March 3 article, "Nixing Hastings name opens new dispute: What to rename the law school," correctly states that "many scholars say Serranus C. Hastings participated in [genocide]." It also quotes UC Hastings College of the Law Chancellor and Dean David Faigman as saying, "it was clear that he was an 'accomplice' in the genocide."

That is not true. See People v. McKinzie, 54 Cal. 4th 1302, 1353 (2012) ("an accomplice is one who aids or promotes the perpetrator's crime with knowledge of the perpetrator's unlawful purpose and an intent to assist in the commission of the target crime."). His erroneous conclusion fails to transparently consider all relevant evidence.

The horrific treatment of Native Americans was thoroughly investigated by the California Legislature at the time, and Serranus Hastings testified under oath in a written deposition that he had no prior knowledge that the perpetrators were going to commit such acts against the Yuki people in the Eden and Round Valleys.

No mention of Serranus Hastings' testimony was made at the California Assembly hearing referred to in that article, or in the media accounts that have driven this narrative since 2017. Even the scholars' writings that name-change advocates rely on do not focus with any kind of detail on the written testimony in 1860 or explain why they believe it was not truthful.

The March 2 hearing of California Assembly's Select Committee on Native American Affairs that was chaired by Assemblymember James Ramos (D-Highland) included presenters and comment on issues affecting California's Native Americans. One of the three panels addressed the proposal to change the name of UC Hastings College of the Law.

Professor Patricia Dixon spoke of a late 13th-century European "convert and civilize" plan for the native peoples in what came to be called the Americas. This "civilization" imposed the concept of private property on land that had previously been considered communal and ancestral.

In Sunol v. Hepburn, 1 Cal. 254 (1850), the early California Supreme Court noted that under Mexican law native people could not transfer title to their ancestral lands. Chief Justice Hastings' dissent points out that those laws prevented native people from transferring the lands they lived on because title to that land was held by the government; they were "the mere occupants of the lands from which they had never been ejected." But he interpreted Mexican law narrowly to allow the native grantee of the land in question to pass the title to it in payment of a debt.

President James Russ of the Round Valley Indian Tribes spoke of their Tribal Council trying to define common goals of the tribes in their confederation. He noted that they are "still coming together on these issues," which will take time, and stressed that their goals focus on "transparency and integrity, healing and accurate truth telling." He also said that they have been advised by Assemblymember Ramos on these matters. In the New York Times article about the accusations against Serranus Hastings, Russ is quoted as saying about UC Hastings: "We have a window of opportunity and we don't want to screw it up."

Mona Oandasan, a Yuki woman and Tribal Council member, spoke about horrific acts that all but wiped out her people. Her comments, while powerful and evoking empathy, assumed that Serranus Hastings was responsible for the atrocities, which he was not. She also emphasized that we never want to forget the horror that was visited on California's native people.

After the United States won its war with Mexico in 1848, the former territory of Alta California became part of the United States. In 1853, Congress gave 500,000 acres of that land to the new state of California. Serranus Hastings bought his 1,200 acres in Eden Valley from the state. At that time, it was inhabited by members of the Yuki tribe. Before the European settlers arrived, those native people were not familiar with the concept of private property and do not agree that they can properly be removed from their ancestral land.

Serranus Hastings testified in sworn written testimony during the California Legislature's 1860 investigation into atrocities involving native peoples: "I believe that I could by feeding one or two tribes subdue them and make them useful and have no difficulty with them."

However, after violence erupted between white settlers and native people and his property was stolen or damaged, Serranus went to U. S. military authorities asking that they confine the native people to the federal reservation in Round Valley but received no cooperation. Then, using state law, he prepared and circulated a petition to the governor requesting that he authorize formation of a local militia to protect his and others' property. This was done, but the men that formed what came to be called the Eel River Rangers elected a leader who turned out to be brutal, precipitating vicious killing and damage.

Serranus testified he did not know of these events until after they had happened. He lived and spent most of his time in Benicia, more than 170 miles from Eden and Round Valleys, but after being told that one atrocity involved H. L. Hall, his property manager, he fired Hall. The Legislature took no action against Serranus after its 1860 investigation.

When Dean Faigman spoke at the hearing, he stated that from 2017 when he first read the op-ed in the San Francisco Chronicle by John Briscoe that claimed: "Serranus Clinton Hastings was a promoter and financier of Indian-hunting expeditions in the 1850s," he and UC Hastings opted for restorative justice programs that are now being implemented but believed that the college's name should not be changed.

Then, when the October 28, 2021, New York Times article stated as fact that Serranus Hastings, "[California's] first chief justice, masterminded one set of [Native American] massacres," "the issue of the College's name became a national issue." On his recommendation, the college's board of directors then voted to ask the Legislature and governor to change UC Hastings' name. He also noted that the college's discussions with Native American groups indicated that their opinions about whether the name should be changed were mixed.

In fact, Dean Faigman and Russ co-authored a July 3, 2021, op-ed piece in the Sacramento Bee which concluded: "Changing the name of the school would be of little benefit to the living descendants of Serranus Hastings' crimes. These atrocities should not be erased -- instead it should be a societal goal to never forget this sordid chapter of American history and the challenges that Native Americans continue to face." These are the same sentiments that Oandasan expressed in her courageous and moving remarks at the hearing.

At the hearing Dean Faigman also read from a letter he received from two Yuki families calling for the college's name to remain the same. They believe that keeping the name will foster forgiveness and "bring real truth and healing to our people and the State of California."

Some assemblymembers also spoke in favor of a name change and endorsed efforts to let tribal leaders have a say in any new name for UC Hastings. Philip Ting (D-San Francisco) said we don't want to "brush history under the rug," and that there is "no disagreement" that the name of UC Hastings needs to be changed. Mike Gibson (D-Compton) said that he wants to write a new narrative for California, and that we need to move on by renaming UC Hastings.

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 until after they occurred. The 1860 investigation by the California Legislature did not produce evidence warranting any action being taken because of anything Serranus Hastings did or didn't do. What we do known is that he testified under oath that his intention was to subdue the native people by feeding them and provide them with work.

Thus, if we consider all the evidence, a narrative emerges that is different from the current one. We should slow down and give Serranus Hastings and his family the same opportunity for a "fair trial" that is required for every other accused. Isn't that our job as lawyers, and hasn't UC Hastings been teaching as much for more than a century?

In previous articles, I have suggested that the governor's new Truth and Healing Council be included in this process, since it is their appointed task to review all relevant evidence concerning "the historical relationship between the State of California and California Native Americans." Executive Order N-15-19 (June 18, 2019).

However, a speedier solution might be the ticket, one that few will probably embrace but most can live with (aka a good settlement): "rename" UC Hastings for the founder's son, Robert P. Hastings, one of the college's first graduates and twice its dean.

He sided with the board of directors against his father's unconstitutional efforts to have the University of California essentially assimilate the college (see People ex rel. Hastings v. Kewen, 69 Cal. 215 (1886); Cal. Const., Art. IX, Section 9), and as a director himself was one of the two dissenting votes when the board refused Clara Shortridge Foltz's 1889 request for an LL.B. degree. By acting on his own beliefs, we might today consider him "progressive." See generally Foltz v. Hoge, 54 Cal. 28 (1879); Thomas Garden Barnes, "Hastings College of the Law, The First Century" 43-87 (1978).

Renaming the college for Robert Hastings would diminish the prominence of Serranus going forward, but retain "Hastings" in the college's name, thus avoiding considerable attendant cost and other damage to the college, alumni, faculty, staff and others. It would not obscure history and would encourage continuing restorative justice efforts, as Robert had wanted for Foltz; all in the spirit of transparency and integrity, healing and accurate truth telling. 