Word interpretation: Hastings and genocide both on the cutting board

As a result of challenges from alumni to changing the College’s name, some of which have been chronicled in this newspaper, the University of California, Hastings College of the Law’s Board of Directors formed a committee of two directors to address a request that its decision to change the name be reconsidered.

At the Board of Directors’ quarterly meeting on June 6, the committee submitted its report to the full Board, with the recommendation that its Nov. 2, 2021 decision to change the College’s name be mostly reconfirmed, but that: we agree with [one of the objecting alumni] that we should not describe Judge Hastings’ acts as genocide. Because that term was used in the Board’s Nov. 2 motion, we recommend that it be revised when the Board otherwise ratifies that motion.

The bulk of the Report’s recommendation was based upon the committee’s assessment of “the practical question for the Board [which] is whether Judge Hastings acted in a manner that was wrong, from a moral point of view, such that our school should not honor him by bearing his name.” In this analysis, the committee applied the test: “whether the evidence supports this conclusion as more likely than not, rather than applying the higher standard from criminal law.”

The two main events focused on in the report were: (1) H.L. Hall, Hastings’ employee, killing of 14 Yukis “after learning that several horses had been killed by Indians,” which Hastings testified to knowing about after the fact in his 1860 deposition; and (2) Hastings’ participation in the legal process necessary at the time to form the local police force that came to be known as the Eel River Rangers, referred to in the legislation as a “militia.”

In its analysis, the committee cites the fact that Hastings failed to have Hall prosecuted for killing the 14 Indians and continued to employ him and allowed him to remain a tenant on his land, during which time he killed more Indians. The committee admits that Hastings swore in his 1860 deposition that Hall “concealed the fact of these killings,” but says: “[t]here is no evidence that Judge Hastings contacted law enforcement to report these killings . . . This is significant not only because it indicates acquiescence to Hall’s past conduct, but because Hall went on to commit another, apparently more grievous outrage in February 1859, again in retaliation for loss of livestock Hall was trying to protect.”

But the formation of a local militia was the only way at the time that settlers could create “law enforcement,” supervised by the Governor and under state law. Also, the Report takes no account of the times, and the fact that communication even remotely like what we have today was not available. Nor was travel quick or easy.

As previously reported in this newspaper, it took Hastings 5-7 days to travel between Eden Valley and his home in Benicia. Print media was local, and it wasn’t until 1853 that the telegraph first connected one mining camp to another. Mendocino County was not reached by telegraph until 1870.

Also, Hastings spent much of his time pursuing his many other business interests. He was on his way home to Benicia in January when his son told him of Hall’s Indian killing, and he discharged Hall when he next returned to Eden Valley in April. As surprising as it may be today, such was the pace of life and death then.

On the issue of law enforcement, Hastings sought assistance from the U.S. Army, and it was only when none was offered, that he, on behalf of himself and other local settlers, prepared the petition seeking the Governor’s authorization for the formation of a militia.

Because local settlers were refusing to sign up for the militia due to the payment by the State to which they would be entitled being habitually slow in coming, Hastings agreed to advance the pay, and similarly advance the cost of supplies from local merchants that were needed by the militia, until the State payment came through. No one is arguing that Walter Jarboe and the Eel River Rangers did not commit atrocities against Indians; they did. But the evidence does not show that Hastings knew, or should have known, that such atrocities would happen.

According to the Report, these agreements by Hastings “describe a level of involvement by Judge Hastings with the Eel River Rangers that makes him in meaningful degree responsible for their actions.” That kind of duty would make any of We the People who aid law enforcement officials in their work in our neighborhoods liable for the consequences of their actions if some of them go rogue.

It should also be noted that by citing Hastings’ promise to advance salary and the cost of supplies as a basis for the committee’s finding that Hastings was complicit in the militia’s action, the committee is showing its hindsight bias – by knowing the horrific outcome, being inclined to believe that the accused must have done something wrong. That the militia was actually formed also shows that Hastings was believed; he was a man of his word. This quality was also doubtless helpful in his dealings with Native Americans, and it allowed him to, as he testified, believe that by feeding and giving work to the angry Yukis, he could “subdue” them.

In fact, President Abraham Lincoln’s Secretary of State, William Seward, had Hastings accompany him “to view the newly acquired territory of Alaska. Hastings’ knowledge of the Indians, derived from his pioneer experience in Iowa, formed the basis of a friendship between the two men that lasted until Seward’s death.” Orrin Kip McMurray, Serranus Clinton Hastings, in “Hastings College of the Law Golden Jubilee” at p. 10 (1928)

What the committee really finds appalling is what the law at the time provided for, but it blames Serranus Hastings, concluding: Either Hastings did not concern himself with what the militia was actually doing, even merely to confirm that it was not engaging in mass violence – which his ongoing support for the militia clearly obligated him to do – or he knew and did not object. In either case he is implicated in the militia’s wrongdoing.

That statement underscores that the committee’s knowledge of the militia’s “mass violence” causes it to impose a duty on Hastings in advance of its formation to check on what the militia was doing.

Upon learning of the Eel River Rangers’ atrocities, the Governor reprimanded them, and eventually disbanded that militia. But those commands did not then travel at the speed of sound. And even today, recent instances of formally charging law enforcement officers for actions taken in the line of duty are relatively new and controversial. Absent “hands on” involvement, the officers’ superiors have experienced only political consequences.

Bills of Attainder punishing individuals are clearly unconstitutional, and any such action here might also violate the California Constitution’s provision granting the University of California’s “affiliate,” UC Hastings, autonomy from the Legislature. Cal. Const. art. IX, §9 (f) (“The university shall be entirely independent of all political or sectarian influences and kept free therefrom in the appointment of its regents and the administration of its affairs . . . .”).

Returning to the committee’s recommendation against using the word “genocide,” it was summarily rescinded at the June 6 meeting, because to not refer to Hastings’ alleged actions as genocide might “offend” Native Americans and their supporters. No further explanation was offered. This might be seen as evidence that the Board’s actions were taken based, not upon facts, but in support of a particular narrative.

In this case that narrative is the one espoused by historians, the media and now the Legislature, that refers to Serranus Hastings as having sponsored Indian hunting expeditions.

Sacramento State University’s Brendan Lindsay, UCLA’s Benjamin Madley, the New York Times and others have convinced even Governor Gavin Newsom that what has happened to Native Americans in California is genocide, the word established by the United Nations’ Convention on the Prevention and Punishment of the Crime of Genocide in 1948 as a result of the Nazi mass murder of Jews. Even President Joe Biden earlier this year claimed that the war in Ukraine amounted to genocide, but was quickly corrected by his national security advisor, Jake Sullivan.

Because “genocide” brings to mind the Holocaust, using it to describe the history of Native people around the world tends to galvanize attention, and promote the interests of those espousing that interpretation. But not all historians agree. E.g. William D. Rubenstein, Genocide: A History (Harloe, UK 2004), 53 (American policy towards the Indians . . . never actually encompassed genocide.”); Guenter Lewy, Were American Indians the Victims Genocide? http://hnn.us/articles/7302.html (accessed 6/11/22) (“Genocide was never American policy . . . the sad fate of America’s Indians represents not a crime but a tragedy.”).

Advocates of using the term “genocide” seem to depend on the stark horror depicted in their presentations of the events to keep the reader from realizing that facts necessary for its essential elements are missing. But their stark presentations make it difficult to publicly disagree with them.

Under AB 1936 as amended, unless the UC Hastings Board of Directors asks for another name, UC Hastings will be named: “College of the Law.” That will allow the name actually used to be: “University of California College of the Law at (or ‘in’) San Francisco.”