Fact or fiction? Reopening 1860 investigation could clear Hastings’ name

At the hearing before the California Assembly’s Higher Education Committee on April 26, 2022, a powerful case was made for the State of California taking responsibility for the depredation of, and providing restorative justice to, California’s Native people. Assembly Bill 1936 is designed in part to do that, and it passed by a 9-0 vote. During the hearing, the Legislature’s 1860 investigation into the violence between Native people and white settlers was mentioned, and committee members acknowledged their body’s failure to take action based upon its findings.

Indeed, California’s Gov. Gavin Newsom, has said: “In the early decades of California’s statehood, the relationship between the State of California and California Native Americans was fraught with violence, exploitation, dispossession and the attempted destruction of tribal communities . . . [and that] the State of California’s laws and policies discriminating against Native Americans and denying the existence of tribal government powers persisted well into the twentieth century.”

As a result, he ordered that the State: “recognizes that the State historically sanctioned over a century of depredations and prejudicial policies against California Native Americans; commends and honors California Native Americans for persisting, carrying on cultural and linguistic traditions, and stewarding and protecting this land that we now share, [and] apologizes on behalf of the citizens of the State of California to all California Native Americans for the many instances of violence, maltreatment and neglect California inflicted on tribes . . . .”

Gov. Newsom thus established the Truth and Healing Council: “to bear witness to, record, examine existing documentation of, and receive California Native American narratives regarding the historical relationship between the State of California and California Native Americans in order to clarify the historical record of the relationship in the spirit of truth and healing.” Executive Order N-15-19, June 18, 2019.

But with AB 1936 and SB 1288, the Legislature is apparently attempting to use the offer of restorative justice to gather Native American support for the quick removal of the name “Hastings” from Hastings College of the Law, before the Governor’s Truth and Healing Council can thoroughly review the State’s considerable part in the atrocities that befell the Yuki people in the Eden and Round Valleys of Mendocino County.

It’s as if the Legislature started this process with the leading question: “When did Serranus Hastings stop killing Indians,” thus making him the bad guy focal point of its current legislative process.

The evidence in opposition to removing the Hastings name from the college is based primarily upon the record of sworn testimony and written correspondence that is part of the Legislature’s 1860 investigation. That documentation is summarized in the testimony and provides substantial evidence that:

(1) Serranus Hastings did not kill or knowingly participate in the killing of, or wanton violence against, any Native Californians. He asked the United States military to respond to his and other settlers’ concerns about attacks and damage to property, including his own, but such assistance was refused;

(2) Following the procedure required by state law, Hastings prepared a petition to the Governor, requesting that a state sponsored and regulated militia be formed to stop the killing, violence and property destruction that had erupted between Native people and settlers;

(3) The Governor initially refused, but later acceded to that request. However, the leader of the Eel River Rangers, as they came to call themselves, did not follow the Governor’s orders and Native people were wantonly killed and injured. Hastings did not participate in any of the Militia’s activities;

(4) After the United States won California from Mexico, title to that land was ceded to the United States by Treaty. In 1853, Congress gave 500,000 acres of that land to help finance the new State of California, from which in 1858 Hastings purchased 1200 acres in Eden Valley. At that time, members of the Yuki Tribe occupied some of that land, and Hastings testified in 1860 that he did not intend to move the Yuki off his land; and

(5) That at the March 2 Assembly Select Native Affairs Committee hearing a letter from two Yuki families was read, citing the spirit of forgiveness and redemption, truth, and healing as reasons for requesting that the college’s name remain as it is.

This evidence is contrary to the legislative findings in AB 1936 that Serranus Hastings: “Promoted and financed Native American hunting expeditions in the Eden and Round Valleys, funding bounties resulting in the massacre of hundreds of Yuki men, women, and children; enriched himself through the seizure of large parts of these lands . . . , [and] bear[s] significant responsibility for the irreparable harm caused to the Yuki people and the Native American people of the state.”

And that is the narrative that has been driving the rush for the UC Hastings name change.

Benjamin Madley’s An American Genocide only contains a brief reference to Serranus Hastings, as the person who “gave Governor Weller a petition drawn up by Round Valley colonist . . . request[ing] militia support against local Yuki Indians.” He then goes on to conflate the atrocities committed by the Eel River Rangers with Hastings’ giving the Governor the “petition drawn up by Round Valley colonists.” Madley’s book is the basis for the July 9, 2017, Op-Ed by John Briscoe advocating a moral case for renaming the College. It is at that point that the College initiated its restorative justice initiatives but declined to change its name.

Media pressure mounted, and on October 28, 2021 the New York Times took up the cause with its sensational front-page article that adopted the narrative of Sacramento State University professor Brendan Lindsay, who authored a 2012 book entitled: “Murder State: California’s Native American Genocide, 1846-1873.” The book’s title itself tells of Lindsay’s narrative.

Lindsay was hired by the College to write a whitepaper about Serranus Hastings’ involvement in the state and federal government sponsored mistreatment and killing of Native Americans. But it does not mention in its evaluation of Hastings that as part of the California Legislature’s 1860 investigation he gave sworn testimony which, along with other testimony and documents from that investigation, tell a different story. A summary of Hastings’ testimony is attached as an exhibit to the whitepaper, but neither Lindsay nor the Times even mention it.

Even the whitepaper concludes: “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.”

Yet it is the New York Times’ sensational media-driven narrative that the Assembly Higher Education Committee chooses to believe. Surprisingly, the Chair of the Committee said that he is convinced that what the New York Times wrote about Serranus Hastings was true, because the Times only prints “news that’s fit to print.” “I do not doubt the facts,” he said. But what the New York Times wrote about Serranus Hastings were not all facts.

And Assemblymember Marc Levine, D-San Rafael effectively denied what is documented in the Legislature’s own records with: “I was really offended to hear an alternative version of history. You can love the name Hastings all you want, but don’t come here and try to tell us that history is something besides what was documented.” What’s in the testimony is documented, and under oath.

Perhaps they would do well to consider what U.S. Supreme Court Justice Neil Gorsuch said in Shkelzen Berisha v. Guy Lawson, et al., 141 S. Ct. 2424, 2428 (2021) (Gorsuch, J. dissenting from the denial of certiorari): “It seems that publishing without investigation, fact-checking, or editing has become the optimal legal strategy. (citation) Under the actual malice regime [of New York Times v. Sullivan] as it has evolved, ‘ignorance is bliss.’ (citation) Combine this legal incentive with business incentives fostered by our new media world and the deck seems stacked against those with traditional (and expensive) journalistic standards – and in favor of those who can disseminate the most sensational information as efficiently as possible without any particular concern for the truth.”] (Emphasis in the original).

In his Executive Order, Gov. Newsom speaks of Native narratives, which are undocumented stories. They are not facts but can form the basis of a belief system. If the Legislature truly wanted to establish the facts, it could work with the Governor’s Truth and Healing Council by reopening its 1860 investigation and start by reviewing the voluminous records from that investigation available in the State Archives.

We have developed a process in our legal system which is designed to find the truth through the painstaking, often tedious and sometimes acrimonious review of all relevant evidence, and by providing the accused due process of law. That process is taught at Hastings College of the Law.

Would that it was also available to historic figures who are accused of terrible wrongdoing by the California Legislature.