Hastings College of the Law name change headed for a vote

On May 19, the state Assembly and Senate Appropriations Committees passed separate legislation to change the name of Hastings College of the Law. Each bill now goes to the floor of its respective house for discussion and a vote.

On March 17, the New York Times reported that a representative of UC Hastings said: “it will cost at least $2 million to $3 million to change the name on building signage, email and web addresses, stationary, brochures and more.” However, Governor Gavin Newsom’s recently released budget allocates only $900,000 for the name change, but at the Appropriations Committees’ hearings there was no public discussion about either the Assembly or Senate bill. Despite the continuing mystery, the legislative race to change UC Hastings’ name proceeds apace.

The argument that the name needs to be changed proceeds from the assumption by UC Hastings’ Board of Directors that an Oct. 28, 2021 New York Times front-page article was correct when it concluded that the 1850s massacre of Native Americans in Mendocino County was at least in part perpetrated by the College’s founder and the first Chief Justice of California, Serranus Clinton Hastings.

That decision was also supported by a college committee report that was animated by a whitepaper on Serranus Hastings’ involvement in the 1850s Eden Valley massacre that the College commissioned from Sacramento State University Assistant Professor Brendan Lindsay.

But Serranus Hastings did not massacre any group of people, commit genocide, or kill or knowingly participate in the killing of any Native Americans.

Dr. Lindsay’s whitepaper suffers from “hindsight bias”: the tendency of people with outcome knowledge to believe that they would have predicted the reported outcome, and thus believe that the person under scrutiny acted wrongly. See Medical Malpractice v. Business Judgment Rule: Differences in Hindsight Bias, 73 Or. L. Rev. 587, 588-593 (1994).

While admitting that the underlying facts are “not fully clear,” Dr. Lindsay believes that Hastings might have known and should have been aware of numerous newspaper accounts of atrocities, and that he should have put a stop to the violence. However, Hastings testified in the 1860 legislative investigation that he did not know of the atrocities before they happened, and we have no way of knowing what, if anything, Hastings read in newspapers.

Dr. Lindsay’s narrative also suffers from inherent bias in favor of what he wrote in his 2012 book entitled: “Murder State: California’s Native American Genocide, 1846-1873.” Its title tells his chosen narrative. (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.”)

The whitepaper does not consider that when Hastings arrived in California there was no state government. Communication as we know it did not exist. There were none of the bridges traversing bodies of water that we have today. Print and other “media” were distinctly local. It wasn’t until 1853 that “some enterprising men succeeded in raising enough money to erect a wire on trees between small towns… and were able to telegraph from one mining camp to the other. Mendocino County was not reached by telegraph until 1870. Alice L. Bates, The History of the Telegraph in California, Vol. 9, No. 3, Annual Publication of the Historical Society of Southern California 181-187 (1914). The fastest travel when available was by water, which was circuitous at best.

As an example of just how circuitous that travel was, in an April 30, 1859 letter Hastings asked the Governor to send a representative to the Round Valley “with the power to put into the field a small force of 15 or 20 men volunteers,” and he described the journey: “Ask this gentleman come down on the Monday night boat [from Sacramento] to San Francisco. I will meet him on board at Benicia to come down with him. He will then have to go to Petaluma & take the Stage to Cloverdale Where he can procure a horse.” From Cloverdale to Eden Valley is approximately 70 miles, but only “as the crow flies.”

Nor does Dr. Lindsay refer to the fact that Hastings himself lived in Benicia, California’s first state Capital. That is over 170 miles from the Eden and Round Valleys. Overland travel between Benicia and Eden Valley took a minimum of five to seven days, and he was seldom in the Eden or Round Valleys because by the late 1850s he had many business interests elsewhere. Thus, he relied on others to conduct the day-to-day operation of those interests.

Serranus Hastings testified in the 1860 legislative investigation into the “Mendocino War” that when he bought his land from the State he had been advised that “Yuka Indians… had been and were then hostile to the white people and had been committing depredations upon the stock in the vicinity of Round Valley,” but that “I [believed] that I could by feeding one or two of the tribes subdue them and make them useful and have no difficulty with them…”

From this, and without citing any other evidence, Lindsay concludes: “Clearly, he not only intended to take their land, but also use them as slave labor.” Those kinds of seemingly automatic worst-case assumptions about Serranus Hastings permeate the whitepaper.

In fact, the whole of Hastings’ testimony, the actual words he used, indicates that he believed feeding and providing work for Native people would help subdue them by establishing that he was someone who could be trusted (unlike, he later learned, his former stockman H.L. Hall). While his words may sound condescending (or worse) to our 21st century ears, they are not the words used by others. And there is no evidence that he had any murderous intent at all.

In one of the cases he heard as Chief Justice, Sunol v. Hepburn, 1 Cal. 254 (1850), the plaintiff had acquired title to real property from a Native person named Roberto, and the defendants had taken possession of it, thus challenging Sunol’s title. The land had been granted to Roberto by the Mexican government, and he conveyed it to Sunol to pay a debt.

The court decided that Sunol had not received good title because Mexican laws prevented Native people from selling land. In its opinion the court describes its view of the rationale for Mexican laws that prevented Native people from transferring land:

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 omitted) 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.” Id at p. 278.

Chief Justice Hastings dissented, pointing out that the laws preventing Native people from transferring land were not based on the majority’s view that “hurtful consequences” resulted from giving the Native people any rights. Rather, in his view they reflected the fact that title to the land was actually held by the government, so the Natives 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 or the government, the actual title holder. Since the government did not challenge Roberto’s title, and the Mexican government had granted the land to Roberto, he would have granted Sunol a new trial to determine possession. In doing so he construed the Mexican law narrowly and refused to adopt for California the majority’s demeaning interpretation of the rationale for the Mexican law.

In 1861, Professor William H. Brewer visited the Hastings family home in Benicia. In his Journal: “Up and Down California in 1860-64,” Brewer recounts Sunday dinner being served by “three Digger Indians… Mrs. Hastings bragged of her Indians, told me all their merits and demerits, admired them as servants, but not as cooks – she has a Chinaman cook. So are the races mixed up here.” Id., Book 2, Ch. 6, entry for November 1, 1861. Although offensive by today’s standards, at the time Mrs. Hastings’ comments did not demonstrate the contempt for Native people that Dr. Lindsay attributes to Serranus Hastings.

And assuming, arguendo, that Hastings could have done more to stop the killings, consider another more famous, California-born, Chief Justice Earl Warren. His name adorns many institutions, schools, and buildings, some of which are part of the University of California. As California’s Attorney General in the 1940s he championed the internment of Japanese Americans and the confiscation of their property. Will we now urge his cancellation, or will we forgive and heal, allowing ourselves to remember and continue learning from the past?