Clarifying the historical record in the spirit of truth and healing may not remove the Hastings name

California Governor Gavin Newsom has established the Truth and Healing Council by Executive Order N-15-19: “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.”

The Council’s goal is to report findings to the Governor’s Office that “should reflect a holistic understanding of the historical relationship between California Native Americans and the State,” and that “may also make recommendations aimed at reparations and restoration and consider how to prevent similar depredations and/or policies in the future.” <cathrutandhealing.com>

That website also reflects ongoing meetings and reports since the Council was established in 2017, with its final report to the Governor’s Office due by 2025.

UC Hastings College of the Law is seeking to change its name on account of media stories starting in 2017 alleging “genocide” against Native Californians in Mendocino County in the late 1850s perpetrated by the College’s founder, Serranus Clinton Hastings, the first Chief Justice of the California Supreme Court.

Quickly thereafter, the College’s Chancellor and Dean, David Faigman, formed the Hastings Legacy Review Committee (HLRC), which began its work in August 2017. At that time, he asked the HLRC to work with Sacramento State University Assistant Professor Brendan Lindsay, an HLRC member, and author of “Murder State: California’s Native American Genocide, 1846-1873.”

That committee’s work included conferring with and hosting at UC Hastings’ San Francisco campus members of the Indian Tribes involved, for discussions regarding the horrors of the past and the difficult circumstances the Tribes continue to face today. This has resulted in ongoing restorative justice efforts that are mutually beneficial to the College and the affected Tribes.

In May of 2018, Professor Lindsay submitted the whitepaper he had been hired to write entitled “Serranus Clinton Hastings in Eden and Round Valleys.” Its executive summary concluded: “...one can argue that some fractional portion of his total fortune certainly did emanate from [Eden valley] – and thus from his actions supporting atrocities against Native Americans, especially the Yuki of Eden and Round valleys. While many white Californians in nineteenth-century California had blood on their hands, either by participation, complicity, or silent acceptance of atrocity, Hastings’ involvement in this episode was nonetheless significant.”

Citing Professor Lindsay’s whitepaper, on July 29, 2020 the HLRC submitted its report which concludes: “that the College must make a public response, acknowledge these atrocities, and establish programs to benefit and improve conditions in the affected tribal communities,” but that the name should not be changed.

In doing so, the HLRC stated: “Professor Lindsay’s white paper further corroborated the historical narrative that Serranus Hastings bears significant responsibility for violence in eastern Mendocino County in 1859.”

Thereafter, considerable media criticism of the College and its Dean for not changing the name ensued, culminating with the October 28, 2021, New York Times article calling Serranus Hastings a “promoter and financier of Indian-hunting expeditions.” Soon thereafter, the UC Hastings Board of Directors directed the College’s administration to work with the Legislature to change the College’s name.

Both the Truth and Healing Council and the HLRC rely on narratives in their decision making. Merriam-webster defines “narrative” as: “a way of presenting or understanding a situation or series of events that reflects and promotes a particular point of view or set of values.”

In the case of the “California Native American narratives” to be addressed by the Truth and Healing Council, they are presumably a product of Native people who have actually lived, or are living, their own reality.

In the case of Professor Lindsay’s narrative, it is reflected and animated by the book he wrote prior to being hired by UC Hastings, which concludes that: “the murder, rape and enslavement of thousands of Native people were legitimized by notions of democracy – in this case mob rule – through a discreetly organized and brutally effective series of petitions, referenda, town hall meetings, and votes at every level of California government.” (see <nebraskapress.unl.edu> “Murder State”) He is also featured as an “expert” in “Native American Genocide” on his University’s website’s “University Experts” page, which advertises: “Use this guide to tap our world-class faculty and staff in your research for news stories.” See <paweb.csus.edu> Brendan Lindsay. Since quotes from Dr. Lindsay are featured in the New York Times’ October 28, 2021 article, that’s apparently what the Times did.

Besides having a curriculum vitae that would likely subject Dr. Lindsay to intense cross examination if he were allowed to testify about whether Serranus Hastings is culpable for the despicable acts alleged, as an advertised expert in “Native American Genocide,” if he were to testify before the Truth and Healing Council, is it reasonable to assume that his testimony would “clarify the historical record . . . in the spirit of truth and healing?”

In that same light and at hearings on proposed legislation to change UC Hastings’ name, the Assembly’s Select Committee on Native American Affairs UC Hastings’ Faigman read a letter from two Yuki families asking that the College’s name not be changed. They believe that keeping the name will foster forgiveness and “bring real truth and healing to our people and the State of California. This act of forgiveness helps us move toward reconciliation and restitution, ensuring that there is justice and liberation of our people.” The Committee’s Chair, Assemblymember James Ramos (D-Highland), responded that the letter’s request should not be adopted because the sovereign Tribal government and a representative of the Yuki Committee had testified at the hearing that the College’s name should be changed.

In the Senate Education Committee, Senator Mike McGuire (D-2nd District) addressed our testimony about what appears in the archived files of Legislature’s 1860 investigation into the Indian Wars as: “if this is fake news or not?” He then referred to the current combat in Ukraine, saying: “I think in a hundred years from now we’re going to look back at what’s happening in Ukraine, and there will be some folks who will say that there wasn’t a massacre in Ukraine.” He then said: “I am embarrassed to hear folks come in and try to defend the name of this institution,” then stating as “fact” that the Yuki people were massacred and “it was our government that did it.” While that is true, from that fact he incorrectly assumes that it necessarily follows that Serranus Hastings is also guilty of massacring the Yuki people.

Three weeks later, the Chair of the Assembly Higher Education 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.

At that same hearing on AB 1936, Assemblymember Marc Levine, D-San Rafael, effectively denied what is documented in Serranus Hastings’ sworn written deposition that is part of the Legislature’s records of its 1860 investigation 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.” Hastings’ deposition is a document, and it was sworn to under oath by the state’s first Chief Justice and its third Attorney General. Apparently, for Assemblymember Levine, what is documented is synonymous with what is said by the media.

Right now, negotiations over the competing proposed legislation are addressing what a new name for UC Hastings should be.

Is arguing over the word “Hastings” as part of the College’s name really the best way to insure ongoing restorative justice is provided to needy Native Californians? After all, isn’t (or at least shouldn’t) this really be about what we, the descendants of the “winners” of the Indian Wars, can reasonably do to make tangible, ongoing living amends to those who are still suffering as a result of Manifest Destiny?

The outcome of potential litigation if name-change legislation is passed, while promising, is not certain. For instance: Does the College’s own rules, U.C.’s rules for changing entity and building names, Article IX, section 9 of the California Constitution and/or Foltz v. Hoge, 54 Cal. 28 (1879) render improper the UC Hastings Board of Directors lightning-fast vote for a legislative name change? Does People ex rel. Hastings v. Kewen, 69 Cal. 215 (1886) render the Legislature “not competent” to pass legislation changing the College’s name? Would a legislative name change be an “impairment” of a contract prohibited by the state and federal constitutions? Does Article IX, section 9 prohibit the Legislature from changing the name of a U.C. affiliate? What about the application of all of this law to the actual facts of the matter?

Clarifying the historical record in the spirit of truth and healing through the Truth and Healing Council seems like a much better way to let all stakeholders have the opportunity to be heard. If the Council recommends to the Governor that UC Hastings’ name be changed, we can deal with that then. By then, more of the truth will have emerged.

But in the meantime, let’s use our energy and money getting on with useful and ongoing restorative justice, and possibly making UC Hastings the model for what should happen throughout the University of California system, and the State of California.