California’s untold history of slavery

State, even after Civil War, enabled atrocities against American Indians

On Jan. 5, 1851, fewer than four months after California was admitted to the United States, its first governor, Peter Hardeman Burnett, fulminated in his State of the State Address against “the Indian foe,” calling Indians “savages.” He then thundered that a “war of extermination will continue to be waged between the races until the Indian race becomes extinct!”

Some states of this country were conceived in slavery. California, admitted to the union as a “free state” in 1850, was conceived in genocide.

But California was conceived in slavery too.

What is more, this crime was not merely tolerated by the state of California, it was authorized and directed by the state. Not only have we yet to come close to offering sufficient reparation for these and other injustices, we have only loosely acknowledged them. It took more than 168 years for a California governor, Gavin Newsom, to “apologize on behalf of the citizens of the state of California to all California Native Americans for the many instances of violence, maltreatment and neglect California inflicted on tribes.”

Gov. Newsom also created a Truth and Healing Council, whose work is ongoing, to clarify the historical record regarding California’s treatment of Indians. But neither “genocide” nor “slavery” were mentioned in his formal apology.

Atrocities against California’s American Indians began long before Burnett’s finger-jabbing “declaration of war.” Spain claimed California in 1542, but did not colonize it until 1769, when the first mission was established at San Diego. In all, the Spanish founded 21 missions, from San Diego to Sonoma County. In 1821 Mexico attained independence from Spain, and in 1834 Mexico seized virtually all of the mission lands from the Catholic Church and began granting them to favored men. In 1846, the United States began war with Mexico, seized Alta California (what we now call simply “California”) and threatened to invade Mexico City. Peace negotiations began.

On Feb. 2, 1848, in the treaty of peace, Mexico ceded New Mexico, most of Arizona, large portions of Colorado and Wyoming and all of Utah, Nevada and California to the United States.

Gold and genocide

Nine days before, on Jan. 24, gold was discovered at Coloma in El Dorado County. The Mexican negotiators were oblivious to that discovery, which Karl Marx and Friedrich Engels just months later wrote “would have much greater consequences than the discovery of America itself.”

A “mini gold rush” occurred in early 1848, but soon petered out, and life in San Francisco returned to its somnolent, pot-holed normal. (The population of the little pueblo of San Francisco then, which only the year before had changed its name from Yerba Buena, was fewer than 500 people.)

Little changed in California until the fall of 1848 when President James Polk, in his State of the Union address, announced that the reports of gold in California were true, and that all were free to come and take it. Hundreds of thousands did come and did take. Jim Holliday aptly titled his monumental book on this time, “The World Rushed In.”

Many imagine these so-called “fortyniners” heroic, intrepid, latter-day Argonauts. But what sort of men were they (and they were virtually all men) who made the treacherous sea voyage around South America at Cape Horn or took the shorter route that took them by foot through the jungles of Central America, to come to San Francisco? They were men who left wives, children, mothers, jobs, the law, creditors and enemies to travel upward of 4,000 miles to seek fortune and a new life.

San Francisco has always had a weakness for light verse. This one, and there are variations, came early, and is occasionally attributed to Mark Twain, probably apocryphally: The miner came in ’forty-nine, The whore in ’fifty-one. They rolled upon the barroom floor, Then came the native son.

Between first European “contact” in 1542 and the end of the mission period in 1834, the population of the native Californian dropped from 350,000 to 150,000. The causes were many: European diseases to which the Indians had no immunity, abuse at the hands of certain of the Spanish padres and soldiers, and suicides wrung from despair. From 1834 until 1880, however, the native population plummeted far more precipitously, from 150,000 to 18,000. In all, the native Californians suffered an almost 95% loss of population from “contact” to 1880.

From 1834 to 1880, by far the principal cause of the population collapse was murder, mostly mass murder, by the mostly white gold-seekers and settlers. Indian hunting was sport. And it removed from the land of those who might assert superior land rights that the United States was obliged to honor under international law.

The state of California was at the heart — or heartlessness — of the genocide. Its Legislature authorized private militias to murder Indians. The most scholarly account to date states that a minimum of 370 massacres were committed and hundreds more smaller “vigilante” killings. From April 1850 to December 1854, massacres occurred from extreme Northern California (peoples of the Tolowa, Modoc, Yurok and Shasta tribes, to name just a few) to the southernmost part of the state, where the Cahilla and Cupeño were slaughtered. In the 1850s, the state Legislature appropriated $1.3 million — those were 1850 dollars — to underwrite these killing campaigns.

Indian Slavery Act of 1850

Congress admitted California to the United States on Sept. 9, 1850. Much debate had occurred in Congress, particularly the Senate, over whether California should be a free or a slave state. Sen. John C. Calhoun opposed its admission unless it were a slave state; Sen. Daniel Webster successfully argued for its admission as a free state. In the end, California was admitted as a free state.

But California was not a free state. It was already a slave state. And it remained a slave state for scores of years.

Following California’s “annexation” from Mexico, Congress never got round to providing laws for its new acquisition. (Under the Constitution, only Congress could.) White men living here grew impatient, and in 1849 and 1850 they convened in Monterey to write their own constitution and laws, with no authority from Congress to do so.

In October 1849, they drew up a constitution for California and delivered it to the voters, who approved it (12,061 for and 811 against), on Nov. 13 of that year. This 1849 Constitution absolutely prohibited slavery. (“Neither slavery nor involuntary servitude, unless for punishment of a crime, shall ever be tolerated.”) At the same time they created, again without authority of Congress, a Supreme Court, a governor’s office and a Legislature. Serranus Hastings was named first chief justice of California.

This illegitimate first California Legislature took it upon itself to write laws, notwithstanding it had no authority from Congress. Early on its docket was a “Bill for the Protection, Punishment and Government of Indians.” That bill became the 133rd law passed by the California Legislature. As passed, the bill was given the anodyne name, “Act for the Government and Protection of Indians.”

But everyone knew it as the Indian Slavery Act.

Section 20 of the act provided that, upon the petition of a white man to a justice of the peace, one or more Indians could be made that petitioner’s slave:

“Any Indian found loitering and strolling about, or frequenting public places where liquors are sold, begging, or leading an immoral or profligate course of life, shall be liable to be arrested on the complaint of any reasonable citizen of the county, authorizing and requiring the officer having him in charge or custody, to hire out such vagrant within twenty-four hours to the highest bidder. The money received for his hire, shall, after deducting the costs, and the necessary expenses, be paid into the County Treasury, to the credit of the Indian Fund. But if he have a family, the same shall be appropriated for their use and benefit.”

The Indian Slavery Act, which violated the state’s new Constitution, was hardly rushed through in a flurry of hasty legislative sausage manufacture. The Senate alone considered the bill on eight different days in March and April of 1850. The bill passed and became law on April 22, 1850.

Less than five months later, on Sept. 9, 1850, Congress admitted California to statehood, on condition it be a free state. From its first moment of statehood, California was in violation of its Act of Admission to the Union.

The Indian Slavery Act remained on the books for nearly a hundred years; it was not repealed until 1937.

No one knows exactly how many Indians were killed by state-sponsored massacres, and no one knows how many were indentured to white masters during this long period of Indian slavery in California. A tedious, case-by-case search of all court filings throughout the state, beginning April 22, 1850, would be required.

These court files will not stand out. Each most likely consists of but two sheets of moldy decaying paper: the “petition” of the white man who sought a slave or slaves, and the judge’s order granting the petition. The to-be-enslaved Indians were given no notice of their impending bondage. Nor were they allowed to challenge it.

State-sponsored theft of land

When an overwhelmed Mexico ceded the vast American West to the United States, all assumed, or pretended to assume, that the grantees of the Mexican and Spanish governments owned the coastal and central valley lands of California. They likewise assumed that the United States owned the lands in the Sierra, where the Spanish and Mexicans had not made land grants, and where gold was found. The Treaty of Guadalupe Hidalgo, which ended the war and effected the cession of California to the United States, recognized the established principle of international law that the United States had to honor private property rights created by the Mexican government (and the handful created by the Spanish government before it).

But all the pretended assumptions about land ownership ignored the equally established international-law principle of “aboriginal rights.” That principle holds that indigenous peoples, notwithstanding their conquest by armed invaders, notwithstanding their near-extermination by those killers, notwithstanding their enslavement, maintain their rights in lands their ancestors historically used and occupied. And those rights are superior to the rights of the conqueror.

Even in 1849, the U.S. Supreme Court had several times recognized the principle of aboriginal title, beginning with the case of Johnson v. M’Intosh in 1823. It decided additional cases in 1831, 1832, 1835 and 1853 and would reaffirm the principle throughout the remainder of the 19th and all of the 20th century.

No day in court

Judges like Hastings and Ogden Hoffman, the first judge of the first federal court in the West, here in San Francisco, who heard most of the land cases, surely knew the principle of aboriginal rights. They were, as they would tell you, learned in the law.

But in the 1,000 or more land-title cases these and other learned judges presided over, the land rights of Indians appear never to have been discussed, much less adjudicated with any semblance of fair process.

That might shock, but it should not surprise. Indians who survived the massacres, who were not enslaved, were barred from appearing in court to testify on their own behalf.

Hastings and Leland Stanford and many others acquired vast tracts of land through violence against Indians who could bring no case against them — and made fortunes in real estate. Virtually all of the Sacramento Valley, and all the coastal land in California from just south of Fort Ross in Sonoma County to the Mexican border, had been purportedly granted into private ownership by the Mexican government. Those vast grants were the subject of decades of litigation between men claiming to have been granted land by Mexico (in a handful of cases, Spain), and those by the United States, which would be the owner of the land if the private claim failed. None of the more than 800 cases even bothered to mention the land rights of the Indian.

Amid even the barbarism of the Gold Rush, California Indians had rights guaranteed by law — American domestic law and international law. Those rights included the right not to be murdered, not to be enslaved, not to be stripped at gun and knife point of their ancestral lands.

Each of those rights was systematically and repeatedly violated by the state of California.

Chronicle illustration; Getty Images