Headmen of the Maidu nation of California are photographed with the US Treaty Commissioners in 1851. None of the 18 California treaties was ratified by the US Senate. (Photo: George Eastman House)

Today, California is the most populous state in the US. But its history includes the deliberate mass murder of Indigenous people in the 1800s. In this excerpt from An American Genocide, Benjamin Madley argues that this organized catastrophe qualifies as genocide.

[Editors’ note: In his introduction, the author states “Where sources create uncertainty as to tribal identity, I follow the twenty-first-century California Indian practice of using the term Indian or California Indians.” Truthout’s policy is to use the terms Indigenous or Native for articles by non-Native authors and we have made that change in this excerpt.]

As the sun rose on July 7, 1846, four US warships rode at anchor in Monterey Bay. Ashore, the Mexican tricolor cracked over the adobe walls and red-tiled roofs of California’s capitol for the last time. At 7:30 am, Commodore John Sloat sent Captain William Mervine ashore “to demand the immediate surrender of the place.” The Mexican commandant then fled, and some 250 sailors and marines assembled at the whitewashed customs house on the water’s edge.

As residents, immigrants, seamen, and soldiers looked on, Mervine read Commodore Sloat’s proclamation: “I declare to the inhabitants of California, that although I come in arms … I come as their best friend — as henceforth California will be a portion of the United States, and its peaceable inhabitants will enjoy the same rights and privileges as the citizens of any other portion of that nation.” As the USS Savannah’s sailors and marines hoisted the Stars and Stripes to a chorus of cheers, three ships of the US Pacific Squadron fired a sixty three-gun salute. The cannons’ roar swept over the plaza to the pine-studded hills above the bay before echoing back over the harbor. The first hours of conquest were relatively peaceful, but a new order had come to California. The lives of perhaps 150,000 California Native Americans now hung in the balance.

The US military officers who took control of California that July under martial law had the opportunity to reinvent the existing Mexican framework within which colonists and California Native Americans interacted. Instead, these officers reinforced and intensified existing discriminatory Mexican policies toward these Native Americans. The elected civilian state legislators who followed them then radically transformed the relationship between colonists and California Native Americans. Together with federal officials, they created a catastrophe.

Yet, the California Native population cataclysm of 1846-1873 continued a pre-existing trajectory. During California’s seventy-seven-year-long Russo-Hispanic Period (1769-1846) its Native Americans had already suffered a devastating demographic decline. During the era when Spaniards, Russians, and Mexicans colonized the coastal region between San Diego and Fort Ross, California’s Native population fell from perhaps 310,000 to 150,000. Some 62,600 of these deaths occurred at or near California’s coastal region missions, and, in 1946, journalist Carey McWilliams initiated a long debate over the nature of these institutions when he compared the Franciscan missionaries, who had held large numbers of California Native Americans there, to “Nazis operating concentration camps.” Today, a wide spectrum of scholarly opinion exists, with the extreme poles represented by mission defenders Father Francis Guest and Father Maynard Geiger, on the one hand, and mission critics Rupert and Jeannette Costo — who called the missions genocidal — on the other. However one judges the missions, Russo-Hispanic colonization caused the deaths of tens of thousands of California Native people.

Under US rule, California Native Americans died at an even more astonishing rate. Between 1846 and 1870, California’s Native American population plunged from perhaps 150,000 to 30,000. By 1880, census takers recorded just 16,277 California Native Americans. Diseases, dislocation, and starvation were important causes of these many deaths. However, abduction, de jure and de facto unfree labor, mass death in forced confinement on reservations, homicides, battles, and massacres also took thousands of lives and hindered reproduction. According to historical demographer Sherburne Cook, an often-quoted authority on California Native demographic decline, a “complete lack of any legal control” helped create the context in which these phenomena were possible. Was the California Native catastrophe just another western US tragedy in which unscrupulous individuals exploited the opportunities provided in a lawless frontier?

The organized destruction of California’s Native peoples under US rule was not a closely guarded secret. Mid-nineteenth-century California newspapers frequently addressed, and often encouraged, what we would now call genocide, as did some state and federal employees. Historians began using these and other sources to address the topic as early as 1890. That year, historian Hubert Howe Bancroft summed up the California Native catastrophe under US rule: “The savages were in the way; the miners and settlers were arrogant and impatient; there were no missionaries or others present with even the poor pretense of soul saving or civilizing. It was one of the last human hunts of civilization, and the basest and most brutal of them all.” In 1935, US Indian Affairs commissioner John Collier added, “The world’s annals contain few comparable instances of swift depopulation — practically, of racial massacre — at the hands of a conquering race.” In 1940, historian John Walton Caughey titled a chapter of his California history “Liquidating the Native Americans: ‘Wars’ and Massacres.” Three years later, Cook wrote the first major study on the topic. He quantified the violent killing of 4,556 California Native Americans between 1847 and 1865, concluding that, “since the quickest and easiest way to get rid of [the Northern California Native] was to kill him off, this procedure was adopted as standard for some years.”

In the same year that Cook published his groundbreaking article, Nazi mass murder in Europe catalyzed the development of a new theoretical and legal framework for discussing such events. In 1943, legal scholar Raphael Lemkin coined a new word for an ancient crime. Defining the concept in 1944, he combined “the Greek word genos (tribe, race) and the Latin cide,” or killing, to describe genocide as any attempt to physically or culturally annihilate an ethnic, national, religious, or political group. The 1948 United Nations Convention on the Prevention and Punishment of the Crime of Genocide more narrowly defined genocide as “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such,” including:

(a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.

The Genocide Convention thus provides an internationally recognized and rather restrictive rubric for evaluating possible instances of genocide. First, perpetrators must evince “intent to destroy” a group “as such.” Second, perpetrators must commit at least one of the five genocidal acts against “a national, ethnical, racial or religious group, as such.” The Genocide Convention criminalizes the five directly genocidal acts defined above and also other acts connected to genocide. The Convention stipulates that “the following acts shall be punishable,” including:

(a) Genocide; (b) Conspiracy to commit genocide; (c) Direct and public incitement to commit genocide; (d) Attempt to commit genocide; (e) Complicity in genocide.

Finally, the Convention specifies that “persons committing genocide or any of the other acts enumerated . . . shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.”

In US criminal law, intent is present if an act is intentional, not accidental. The international crime of genocide involves more, comprising “acts committed with intent to destroy” a group “as such.” International criminal lawyers call this specific intent, meaning destruction must be consciously desired, or purposeful. Yet, specific intent does not require a specific motive, a term absent from the Genocide Convention. Under the Convention’s definition, genocide can be committed even without a motive like racial hatred. The motive behind genocidal acts does not need to be an explicit desire to destroy a group; it may be, but the motive can also be territorial, economic, ideological, political, or military.

Moreover, the Convention declares that “genocide, whether committed in time of peace or in time of war, is a crime under international law.” If the action is deliberate, and the group’s partial or total destruction a desired outcome, the motive behind that intent is irrelevant. Yet, how does a twentieth century international treaty apply to nineteenth-century events?

The Genocide Convention does not allow for the retroactive prosecution of crimes committed before 1948, but it does provide a powerful analytical tool: a frame for evaluating the past and comparing similar events across time. Lemkin himself asserted that, “genocide has always existed in history,” and he wrote two manuscripts addressing instances of genocide in periods ranging from “Antiquity” to “Modern Times.”

Genocide is a twentieth-century word, but it describes an ancient phenomenon and can therefore be used to analyze the past, in much the way that historians routinely use other new terms to understand historical events. Indeed, Lemkin planned chapters titled “Genocide against the Indians” and “The Indian in North America (in part),” but he died before he could complete either project.

Copyright (2016) by Benjamin Madley. Excerpts from the 2017 paperback edition are not to be reposted without permission of the publisher, Yale University Press.