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Bill to rename Hastings belongs back at the drawing board

CalMatters logo CalMatters 9/21/2022 Guest Commentary

In summary

Gov. Gavin Newsom should veto Assembly Bill 1936 and ask the Assembly and state Senate to hold hearings during which the historical record regarding Serranus Hastings is thoroughly, fairly and impartially vetted before stripping his name from Hastings College of the Law, the institution he endowed.

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By Donald Craig Mitchell, Special to CalMatters

Donald Craig Mitchell is a graduate of Hastings College of the Law and an expert on federal Indian law.

In 1878, Serranus Hastings, the first chief justice of the California Supreme Court, gave the State of California $100,000 in gold to enable the University of California to start a law school. Since then, Hastings College of the Law—the alma mater of Vice President Kamala Harris—has been one of San Francisco’s most venerable institutions.

But on Aug. 31, the Legislature sent Gov. Gavin Newsom Assembly Bill 1936, which, if signed into law, will rename the school and disassociate Hastings from the institution he endowed. The reason is that, according to the bill, in 1859 Hastings “perpetrated genocidal acts” against Yuki Indians in the Eden and Round valleys north of Ukiah. That accusation is an unfair misrepresentation of the facts.

Here’s why:

In 2017, the San Francisco Chronicle published an op-ed in which John Briscoe, a San Francisco attorney and adjunct member of the Hastings faculty, reported that a UCLA professor had written a book in which he asserted that Hastings had been complicit in the killing of Yuki Indians. 

After he read the commentary, Hastings College of the Law Dean David Faigman hired a Sacramento State University professor named Brendan Lindsay to advise the dean regarding what Hastings had done or not done.

An impartial finder of fact is an essential element of procedural due process. In 2012, Lindsay had written a book, “Murder State: California’s Native American Genocide,” in which he accused Hastings of perpetrating “a massive genocide of ‘Indians’ during the second half of the 19th century.” Having previously rendered that verdict, Lindsay was an inappropriate choice of an academic for Faigman to have hired to conduct an impartial review of the historical record. 

That became apparent in 2018, when Lindsay delivered a “white paper” in which, as he had in his book, he announced that Hastings had been complicit in “genocide.”

But had he been? In 1860, the Legislature created a committee to investigate what had happened in the Eden and Round valleys the previous year. The historical record the committee compiled documents that—while Hastings was a man of his time, no worse than others and better than many—his purchase of land in the Eden Valley and his efforts to dissuade the local Yuki Indians from killing his horses and running off his cattle were lawful under 1859 California law. When he was deposed, Hastings, who lived in Benicia, attested that until “the investigations of this committee I was entirely ignorant of any outrages” that had been committed 176 miles north in the Eden and Round valleys.

Despite the condemnatory verdict Lindsay had rendered, Faigman did not advocate that the law school be renamed. Then, last October, The New York Times published an article featuring a photograph of the dean and reported that he had “led a campaign to keep the school’s name.”

Six days later, after an emergency was declared and a meeting was held with no public notice, the Hastings Board of Directors passed a motion that accused Hastings of promoting and funding “genocide,” and directed the dean to work with the Legislature “to enact legislation changing the name of the school.”

In February, Faigman arranged for Assemblymember James Ramos (D-Rancho Cucamonga), chairman of the Assembly Select Committee on Native American Affairs, to introduce AB 1936. When the Assembly higher education and Senate education committees held hearings on the bill, no member of either committee—Democrat or Republican—cared to investigate the historical record in order to decide for him or herself whether Hastings had killed Indians or engaged in any other unlawful misconduct. Instead, if the Hastings Board of Directors said Hastings had promoted and funded genocide (because that is what Faigman had told the board because that is what Lindsay had told the dean), then he must have.

That is not how committees should conduct legislative business. Gov. Newsom should veto AB 1936 and tell the Assembly and Senate to start over. He should instruct the two committees to hold hearings during which the historical record is thoroughly, fairly and impartially vetted. After that, the chips can fall fairly where they may.

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Donald Craig Mitchell previously has written about the University of California’s tuition-waiver policy for Native Americans.

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