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In My Opinion
Professor’s Evidence Does Not Support Allegations Against Hastings
By Kristian Whitten
(The writer is a member of the UC Hastings Class of 1973 and a member of the committee of alumni that is a plaintiff in litigation over legislation removing reference to Serranus Hastings, the first chief justice of California, from the name of the law school. Whitten is a retired California deputy attorney general.)
In a return to truth, justice and the rule of law, on May 16, the Board of Trustees of the State Bar of California approved a policy that will require its public website to once again list Hastings College of the Law as the law school alma mater for those of us who graduated from UC Hastings before the name was statutorily changed, effective Jan. 1, 2023, to “UC College of the Law, San Francisco” (“UC Law-SF”).
This follows the State Bar summarily changing our licensee website profiles to show after the name change that we all graduated from UC Law-SF, then after receiving complaints from graduates of UC Hastings changing them all back to that name, followed within a week by going back to UC Law-SF.
The new policy follows established law and provides that official name changes of law schools will not apply to licensees who graduated before the name change became effective, unless “...retroactive application is required explicitly by statute or by order of the Supreme Court....”
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The initial changing of our profiles was another consequence of the UC Hastings name change process, that began in 2017 with a San Francisco Chronicle article written by then-UC Hastings adjunct faculty member and historian John Briscoe claiming that the school’s founder, Serranus Clinton Hastings, “was promoter and financier of Indian-hunting expeditions in the 1850s.” Briscoe attributed that conclusion to the book, “An American Genocide,” published in 2016 and authored by UCLA history Professor Benjamin Madley.
This led the law school to start a multi-year process of reviewing Hastings’ actions, which ultimately resulted in the decision not to change the school’s name. However, within a week of publication of a front-page article in the New York Times in 2021 that accused Serranus Hastings of the theft of Indian land and “mastermind[ing] one set of [Indian] massacres” in the late 1850s, the school’s dean was directed to work with the Legislature and governor to change the name.
The Times article also relied heavily on Madley’s book, which seeks to justify using the word “genocide” to describe the conquest of California’s indigenous people in the mid-1800s, and barely mentions Serranus Hastings.
But in those few references, he claims without direct evidence that Hastings “profited from the theft of California Indian land” and was the “wealthy mastermind” of Indian hunting expeditions.
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The ultimate name-change legislation (AB 1936) has led to ongoing litigation to overturn it. The school’s website reports that through “the generosity of alumni donor Joseph Cotchett ’64,” in the fall of 2023 Madley was appointed a visiting professor of law.
He is reportedly working on a book with Professor Jo Carrillo, director of the school’s Indigenous Law Center, “to explore the laws, executive actions and court rulings that affected Native Americans in California.”
It also notes that Madley “detail[s] the history of government-sanctioned genocide and land seizures against Indigenous Californians” and Madley says:
“From the seizure of California Indian land and its cornucopia of natural resources by the federal government to the rise of the multibillion-dollar California gaming industry, such laws, executive actions, and judicial rulings have massive impacts both on California Indian people and all of us in the state of California.”
It is interesting that Madley does not mention Hastings or the State of California, even though it was his accusation that he committed genocide that led to the school’s now-disputed name change! Maybe that is because Madley’s narrative about Serranus Hastings is not factual?
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Hastings bought his land legally from the State of California and the claim that he “masterminded” the killings carried out by the state’s governor-appointed militia is contrary to direct evidence; during the 1860 legislative investigation into the Mendocino Indian Wars, Serranus Hastings testified under oath that it was his intention to pacify hostile Indians by feeding them, and that he did not know of the atrocities being investigated until after they had occurred.
At the conclusion of that investigation, he was not held responsible (vicariously or otherwise) for any killings.
In fact, after receiving reports of atrocities committed by the militia, the governor ordered its leader to cease his aggressive tactics and avoid taking human life unless it could not be avoided.
He ultimately ordered the militia disbanded on January 3, 1860. Communication was not reliable or quick in those days; the telegraph did not reach Mendocino County until 1870.
None of this evidence about Hastings is mentioned in Madley’s book.
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In addition, after this and other evidence from the 1860 investigation was presented to the school’s Board of Directors by a group of alumni, a committee of that Board admitted that they had improperly charged Hastings with genocide, and concluded “that there is no incontrovertible evidence that Judge Hastings knew more than he acknowledged.”
They also stated that the board’s decision was a “moral,” not “legal” one.
This evidence runs counter to the findings in AB 1936 that: “S.C. Hastings perpetrated genocidal acts against Native California Indigenous People, most especially the Yuki Tribe...:” “S.C. Hastings enriched himself through seizure of large parts of [Indian land]...;” and “S.C. Hastings’ name must be removed from the College to end this injustice and begin the healing process for the crimes of the past.”
Perhaps the book Madley and Carrillo are now writing will help confirm that his statements about Hastings in his earlier book are contrary to the law as it was evolving in California in the 1850s, as well as existing law.
The school’s website says that Carrillo “invited Madley to work with the ILC toward its goal of framing redress for past harms to Indigenous peoples” and that “[s]he said the interdisciplinary project will bring vital perspectives to bear on a past era that repeatedly escapes the methodological strictures of traditional legal research.”
Carrillo explained:
“Professor Madley and I are both keen on the interdisciplinary synergies that arise between historical and legal scholarship....These synergies, we hope, will prove useful to conceptualizing and framing or reframing legal remedies.”
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It appears from this that Carrillo recognizes that there is a difference between historical narrative and actual fact; that Madley’s narrative that “Serranus Hastings stole Indian land and masterminded Indian hunting expeditions” may “escape the methodological strictures of traditional legal research.” In other words, that it is not what the rule of law provides. Hastings followed the rule of law in acting as he did, and Madley’s “evidence,” if admissible, would be insufficient to convict Hastings of the “crimes” the Legislature charged him with in AB 1936.
The board committee’s admission that its decision was a “moral,” rather than a “legal” one, and Carrillo’s distinction between historical and legal scholarship, point to the fact that AB 1936 is a legislative act (not a judicial trial) whose charges against Serranus Hastings are contradicted by direct evidence that wasn’t discussed in the book that ultimately led to the name change.
Thus, in addition to being an impairment of Hastings’ contract with the state by which he established the law school, the stain on his legacy and punishment meted out to his family for alleged “crimes” make AB 1936 a bill of attainder.
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Writing for the court in United States v. Brown (1965) 381 U.S. 437, 445-446, Chief Justice Earl Warren explained that the prohibition against bills of attainder is a barrier erected to ensure that legislatures would not overstep the bounds of their authority and perform the function of the judiciary. Thus, “this ‘separation of powers’ was obviously not instituted with the idea that it would promote governmental efficiency. It was, on the contrary, looked to as a bulwark against tyranny.”
In addition, he noted that “the Bill of Attainder Clause not only was intended as one implementation of the general principle of fractionalized power, but also reflected the Framers’ belief that the Legislative Branch is not so well suited as politically independent judges and juries to the task of ruling upon the blameworthiness of, and levying appropriate punishment upon, specific persons.”
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Quoting from 1 Cooley, Constitutional Limitations, pp. 536-537 (8th ed. 1927), he wrote:
“Every one must concede that a legislative body, from its numbers and organization, and from the very intimate dependence of its members upon the people, which renders them liable to be peculiarly susceptible to popular clamor, is not properly constituted to try with coolness, caution, and impartiality a criminal charge, especially in those cases in which the popular feeling is strongly excited—the very class of cases most likely to be prosecuted by this mode.”
Warren declared:
“By banning bills of attainder, the Framers of the Constitution sought to guard against such dangers by limiting legislatures to the task of rule-making. ‘It is the peculiar province of the legislature to prescribe general rules for the government of society; the application of those rules to individuals in society would seem to be the duty of other departments.’ Fletcher v. Peck, 6 Cranch [10 U.S.] 87, 136 (1810).”
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