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Washington Law ReviewVol. 71:379, 1996

Native Hawaiian Sovereignty


William H. Rodgers, Jr.*
The Congress . . . apologizes to Native Hawaiians on behalf of the people of the United States for the overthrow of the Kingdom of Hawaii on January 17, 1893 with the participation of agents and citizens of the United States, and the deprivation of the rights of Native Hawaiians to self-determination . . . .1


In 1993, Congress apologized to the NativeHawaiians for the political funny business ofa century ago when the pineapple and sugarinterests overthrew the Kingdom of Hawaiiwith tactical help from U.S. officials.2Another apology will be in order for anunconscionable political trial now underwayin the islands to punish one of thesovereignty leaders, Dennis "Bumpy" Kanahele,for a variety of imagined offenses thatamount to the infliction of embarrassment onthe U.S.

To put this essay in context, it should beunderstood, first of all, that the strugglefor Native Hawaiian lands and sovereignty isa longstanding one, with more than the usualhistorical, political, and legalcomplexities.3 It is accurate to say thatNative Hawaiians today are frequently"landless" in their own ancestral lands4although a full account defies a summaryrestatement.

Not surprisingly, the federal courts inHawaii frequently have been drawn into theseconflicts, often with unhappy consequencesfor the legal positions advanced by NativeHawaiian advocates. To mention an example, inthe 1970s when the late George Boldt (federaldistrict judge in Tacoma, Washington) wasenduring death threats and publicvilification to enforce the fishing rights ofnative Americans,5 his colleague on thefederal district bench in Hawaii (SeniorJudge Martin Pence) was rushing to the aid ofthe sugar growers to protect their water frombeing returned to native taro farmers underthe controversial state supreme courtdecision in McBryde Sugar Co. v. Robinson.6By way of further illustration, on November3, 1995, the Ninth Circuit heard argument onappeal from a decision by District JudgeDavid Ezra who ruled that the Pai `Ohana (thePai family), who had occupied a place on theKona Coast of the Big Island from timeimmemorial, had become "tenants atsufferance" because their ancestors hadfailed to file for Kuleana (fee simple) titleduring a brief window of opportunity that wasopened for the legally astute between 1848and 1854.7 A "tenant at sufferance" can beousted at the whim of any landowner who feelslike it, so the Ezra decision must berecognized as a dangerous and threateningprecedent for the 99-plus percentage ofnative land tenants in Hawaii whose paperworkfalls short of formal Kuleana title.Understandably, the folks adversely affectedmight be expected not to soon forgetdecisions of this ilk.

Dennis Kanahele, too, has not stood remotefrom the Hawaiian Native sovereigntyconflicts that have boiled over since Hawaiibecame a state in 1959. It can be safely saidthat he has long been a thorn in the side thestate-federal establishment of Hawaii.8 In1987, he led a takeover of state land at theMakapuu Point Lighthouse, claiming it to bethe property of the Native Hawaiian people.He was an outspoken member of the `OhanaCouncil, one of the more militant arms of theHawaiian sovereignty movement. After the 1993Apology Bill, he worked to set up theIndependent and Sovereign Nation State ofHawai'i that has its own constitution withhimself as the popularly chosen "head ofstate." Over the years, he has encouragedGhandi-like small disobediences, such as therefusal to carry state-issued drivers'licenses or display state-issued vehicleplates, that are widely practiced by Hawaiiansovereignty advocates.

Kanahele and his supporters also havecriticized federal judges, and challengedthem, which raises hard questions about thelimits of political debate in the UnitedStates today. Considerable official latitude,perhaps too much, has been extended to thetough-talkers and bullies who have becomepart of land-use debates in many parts of theWest.9 The Branch Davidians, the Unabomber,the Montana freemen, the Michigan Militia andmany others continuously push the legalenvelope testing where talk stops and crimebegins. The law is forever exploring wheninsouciance gives way to impudence thatbecomes insolence that leads toinsubordination that is meant to beintimidation, that is deservedly treated ascrime.

My approach in this Essay is to look at theconflict through a lens suggested byevolutionary theory, sometimes described inthe law schools as "Law and Biology." In thisworld, the sense of justice is a set ofexpectations about how others should behave,backed by a proclivity towards moralisticaggression against deviators.10 The sense ofjustice entails both cognition and emotion,with a match of expectations and then the fitthat follows if there is no fit. Compare anddespair is the name of the game.11To elaborate somewhat on this evolutionarytheory, the sources of the expectations thatdrive the sense of justice are rooted in thesocial system. Frans de Waal presents astrong case that the foundations ofmoralistic aggression among nonhuman primatesstem from reciprocity failures in one-to-oneinteractions.12 Understandably, theseexpectations that prop up an emotionallyladen apparatus of justice can be derivedfrom a variety of socialconsiderations-status, in-group defense,repeated defection by a member, misbehaviorby peers, etc. The typical courtroom,especially in an emotionally charged trial,offers a panorama of justice checking-theprosecutor is searching for the propermeasure of contrition by the person charged,the defendant is hoping for divineretribution against the informant, the judgehas a sharp ear out for slurs and slightscoming from the defense table, defenselawyers are recalling the last time thisprosecutor did them in, defendant's family islooking for a huge store of mercy (that isdue to course) from Juror No. 7 who was seento smile in the hallway.

Understandably, this building up ofexpectations (and judgments also aboutdepartures from them) can be influencedfurther by the twin engines of deception andself-deception, both of which have deep rootsin evolutionary theory:13 deception becauseactors in justice conflicts must disguiseunacceptable personal motivations asacceptable legal norms; and self-deceptionbecause high uncertainties about motives andfuture behavior of others must be interpretedas being coincident with the professed aimsof the enterprise. A prosecutor who hascharged the crime of treason is obliged toread ambiguous evidence as supporting thecharges.


A political trial, as the term is used here,requires punitive action by the authoritiesto punish unpopular views of a politicallyprominent defendant. Viewed through the lensof what we know about the sense of justice,we would expect political trials to presentspecial difficulties at three levels: thecharges, the proof, and the conduct of thetrial.

In developing the charges, the prosecutionhas the problem of identifying crime(reserved for gross departures from socialnorms) from a variety of other status-offending, reciprocity-upsetting behaviorsthat will spark the moralistic retaliationthat will play itself out in the criminal lawarena. Was it a Police Academy movie wherethe question was asked, "What is the crime?"and the sheriff answered, "Pissing me off"?That's a nice account of motivation; but itleaves something to be desired in most legalforums.

Since all states presume the importance ofself-perpetuation (and express it throughlaw), the charges in a political trialfrequently focus on convenient categories ofinterfering with the wheels of government orother variations on "making life difficult"for the authorities. As a rule, politicaldefendants are not charged with murder,arson, or car theft. They are charged withconspiracy, incitement to riot, interferencewith the work of officers, or obstruction ofjustice. Only a few historians of Hawaii nowremember that at the turn of the centuryQueen Liliuokalani was charged by the inaptlynamed "Republic of Hawai'i" not with"treason" (attempting to overthrow thegovernment) but "misprision" of treason (someill-defined form of seditious or disloyalconduct that includes concealment ofknowledge of those who are attempting tooverthrow the government).14

The proof will present a special challenge inpolitical trials because, by definition,there is a sharp disparity between themotives of the prosecution (retaliationagainst a political opponent, getting evenfor offensive speech) and the hard-coreparticulars of the crime charged. Thismismatch in proof will be reflected in theconduct of the trial because there aresubstantial differences between the scope ofthe case as perceived by prosecution anddefense, and these differences will force thecourt into repeated rulings that only cangenerate growing dissatisfaction in the mindsof the losers.

This Essay will focus on the social originsof the expectations that drive this sense ofjustice, emphasizing (1) in-group solidarity,(2) status, (3) the bounds of sociallyacceptable communication-herein of threats,and (4) reciprocity and reputation damage.


On August 2, 1995, the defendant Kanahele wasindicted (together with co-defendant GordonKaaihue) and charged by a District of Hawaiigrand jury with interfering with a policeofficer, a misdemeanor; and twofelonies-harboring a fugitive and interferingwith a United States Marshal while he wasengaged in his official duty.16 Kanahele washeld for three and a half months withoutbail, and eventually was brought to trialbefore District Judge Helen Gillmor.17 Amistrial was declared on October 31, 1995(Halloween), amidst newspaper speculationabout "jury misconduct" and even "tampering,"as one of the jurors fell victim to thebelief that a little independent research onthe meaning of the Fourth Amendment was boundto be an improvement on anything he waslikely to hear from the presiding judge.18Subsequently, after 118 days in prison,Kanahele was released on bail by order ofDistrict Judge David Ezra.19 Governmentprosecutors have expressed an intention toseek convictions at a new trial in 1996.20


A. The Question of In-Group Solidarity: Defection and Disloyalty

Kanahele, it seems, has made several mistakesthat have attracted the moralistic aggressionof the federal prosecutors, and none of themrelate directly to the charges broughtagainst him.

The first is an enthusiastic reading of thefamous 1993 Congressional "Apology Bill"(which acknowledges, after all, the "illegaloverthrow" of the Kingdom of Hawaii andexpresses regret for "the deprivation of therights of Native Hawaiians to self-determination"), construed by Kanahele to bethe justification for the Independent andSovereign Nation State of Hawai'i that hasbeen set up with its own constitution andhimself as the popularly chosen "head ofstate." That Kanahele takes this positionpartly on the basis of legal advice(international law expert Prof. Francis A.Boyle) ironically gives his group the samelegal veneer ("lawyer approved")21 that largecorporations hide behind every day of theyear. On the street, this belief inindependence led Kanahele to tell hisarresting officer, "I must notify you that Iam the `Head of State of the Nation ofHawaii;'" and that "I do not recognize yourjurisdiction over me;" and that "if anyoneshould be under arrest, it is you for yourwar crimes and the overthrow of the Hawaiiangovernment."22

John Hartung, among others, has elaboratedupon the strikingly different moral calculushumans apply to in-group as opposed to out-group members.23 Kanahele's declaration ofindependence is as good a way as any toeffect a separation from the group, and thatseparation will strip the offender of manylegal benefits of the doubt. Thisinterpretation is confirmed by thegovernment's briefs in the case, whichbristle with moral indignation, describingthe organization as a "cult," and a "so-called" sovereignty group; its place ofbusiness as a "remote rural compound" that is"rumored to be fortified;" its members as"followers" and "subjects;" and Kanahelehimself as "volatile and dangerous." 24Kanahele's independence cost him dearly whenhe came to court. In his August 7, 1995decision denying bail, Magistrate DistrictJudge Barry M. Kurren adroitly turnedKanahele's political beliefs against him. Thefindings in the Order of Detention PendingTrial are that "defendant denies thejurisdiction of the court and there is nobasis to believe that he will abide by anylawful order of the court;" and that "[t]henature of the charges and evidence at thehearing are evidence of the defendant'sstrongly held conviction to ignore the orderof the court."25 Worse, defendant could notundo the damage caused by his politicalphilosophy by statements and proof that hewould appear for trial.

On appeal, U.S. Attorney Leslie Osborneextended the argument: a defendant "can notclaim strong ties to a community whose lawshe repudiates and whose court he openlydisdains."26 This is the defection-from-the-community theory in full bloom. Itsimplications are clear: "You have left us andwe have no reason to expect your cooperationin any future legal proceeding; if yousubscribe to Hawaiian Sovereignty, bydefinition you do not believe in U.S.Sovereignty; therefore, all HawaiianSovereignty advocates charged with crimes inthe U.S. courts must be held without bail."Of course, the "strongly held" beliefs in thelack of federal jurisdiction that sufficed tokeep the defendant locked up without bailsuddenly didn't matter when it came todefense at trial. No state is sympathetic tojurisdictional challenges by those who thinksome other sovereign should be in charge.In repeated rulings, Judge Gillmor confirmedthe expectation in "political" cases that thecourt's tight control of the legal agendawill be a source of constant friction. Thedefense was not allowed to pursue the claimof selective prosecution, which shut off allinquiry into the retaliatory motives thatfueled this case.27 The question ofsovereignty was foreclosed. As one observerput it, "The `S' word was a `question oflaw,' not `a matter of facts,'"28 and thismeant that Professor Boyle, who had guidedKanahele on his course of legal independence,could not testify. Kanahele's good-faithbeliefs were out of bounds too so that thisman who worked his "harboring" and"obstructing" under cover of theCongressional Apology Bill had to pay theprice for any mistakes. Surprisingly, trialJudge Gillmor ruled that Kanahele could claimno "self defense" for standing his groundwhen unidentified agents swooped down on hishome in pursuit of fugitive Nathan Brown(more about this later). That ruling, in alllikelihood, is an error of law29 (not tomention an encroachment on the sense ofjustice) and may have been the last strawthat drove one of the jurors to the lawlibrary in a vain search for some legaldirection he could trust.

Two other factors tend to drive politicaltrials like this one to unhappy conclusions.One is the element of momentum (sometimescalled the sunk-cost factor), which makes itdifficult for the prosecuting enterprise toturn away from the leaps of faith or displaysof loyalty that get the case going in thefirst place. The principal participants inthe prosecution enterprise (prosecutors,judges, witnesses) were directly involved inthe early bail proceeding, and it wasimpossible to admit later that the flightrisk presented by this defendant wasnonexistent and the danger to the communitystrictly fictitious.

On top of this, the "us vs. them" atmosphereof the political trial puts severe pressureon the lawyers and judges alike to show theirinstitutional loyalty. The danger here isthat these institutional commitments can leadto a proceeding where conviction is the onlypossible outcome. In the Kanahele case, theseinstitutional factors were accelerated by theparticular personalities of U.S. AttorneyLeslie Osborne and presiding judge HelenGillmor. Osborne is a very tough prosecutor,quick to attack, strutting with selfconfidence, prone to sarcasm. Gillmor is avery new judge, uncomfortable before thejury, fearful of losing control, uncertain ofher rapport with the prosecutor and thedefense. The combination was unfortunate, asthe prosecutor was quick to object and thecourt quicker yet to sustain. The "sustains"would rush forth if the prosecutor objected,if he stood up contemplating an objection, orif he stirred about showing discomfort withthe line of questioning. Gradually, theprosecution came to be treated withingratiating deference while the defense gota strong dose of impatience, annoyance,condescension, preachiness, and scolding. The"sidebar," made infamous in the O.J. Simpsontrial, made conspicuous appearance again inthe Kanahele trial, not unexpectedly, sinceit is the last resort of an inexperiencedjudge forced to make rulings of a novel kind.

B. The Question of Status: the Lowered Gaze, the Shuffling Step

Kanahele's second transgression was to couplehis declaration of independence with adisplay of disdain for the presentlyconstituted U.S. authorities. It was thisdisregard of status and reverential debatethat unleashed an avalanche of federal legalretaliation against him. The criminal chargesagainst Kanahele came over a year and a halfafter the incidents took place but withinweeks after the federal and state judges inHawaii were served papers by the Nation ofHawai'i putting them on notice for ongoinghuman rights violations against the NativeHawaiian people. A timeline might be helpfulto keep the order of events in mind (Figure1).

Figure 1

One of the notices served on United StatesDistrict Court Magistrate Barry M. Kurren,for example, stated that "you have made[yourself] personally liable for war crimes"and "crimes against humanity;" your acts"show contempt" towards the Kanaka MaoliPeople [Native Hawaiians]; service of thisdocument "is prima facie evidence of yourfull knowledge and participation in thedirect murder and extermination of the KanakaMaoli People and their Government;"recipients were advised that they could bearrested and "imprisoned" and "broughtbefore" an "international Criminal Tribunalto answer for your participation in crimes ofApartheid and Genocide;" and the punch line:"There will be no appeal," and "Judgment willbe final."30 These notices of human rightsviolations were written and signed not byKanahele but by Maltbie Napoleon, the"Attorney General" of the Nation of Hawai'i,who was to appear later as a witness for thedefense at Kanahele's trial.

There is a crime of threatening the safety ofpublic officials, but these notices don'testablish it. For a conviction on this scoreit is necessary to establish explicit threatsand overt acts to distinguish criminalundertakings from free speech.31 In these daysof anti-government backlash and tough talk,federal officials routinely turn a deaf earto criticism, abuse, and other displays ofunhappiness that make "war crimes notices"seem like so many letters to the editor.Indeed, virtually all of the officials whoreceived the "notices" of the Nation ofHawai'i shrugged them off as just anotherripple in the tide of public discussion.But nobody talks to federal judges in thistone. Threats of arrest, references to "warcrimes" and "judgment will be final" is notthe kind of discussion they are accustomed tohearing. They don't like to be accused ofsomething the Nazis did, especially when theparallels are not glaringly obvious. And the"judgment will be final" reference has anominous ring to it, particularly ifinterpreted in the worst imaginable light ofthe assassinations, clinic bombings, andnerve gas attacks that dominate the nightlynews. Senior Judge Samuel King of theDistrict of Hawaii expressed this opinion inJune of 1995 when he described the notices hehad received from the Nation of Hawai'i asunacceptable and threatening.32 This is wherethe Kanahele case should have ended-talkagainst talk, speech against speech.

That it didn't end here says something aboutthe federal courts as an institution. Federaldistrict judges are among the most pampered,protected, and revered of any elite in humanhistory. They are appointed for life, move indistinguished company, and are answerable tonobody unless one reckons casual appealsprocesses that might uncover "error" withinthe normal two to three years' span oflawyers' time. They are served by a retinueof clerks, secretaries, and bailiffs. Peoplerise when they walk into the room. As a rule,federal judges are immune from criticism.Lawyers learn to keep their mouths shut outof ethical necessity or a practical accountof tomorrow's prospects when they confrontthis judge again. To the media and thepublic, judicial decisionmaking is atechnical thing, like searching for a heartmurmur, and thus judges customarily escapethe criticisms and inquiries that go to theirless immunized colleagues on the planningcommission or in the state legislature.Actually, political and ideological testsalways have been strong for acceptance intothe exclusive club of the federal judiciary,and they have become intensely so since theReagan years. Federal judges get theirauthority by surviving close politicalscrutiny and exercise it by pretending theyare not political decisionmakers.

Offending judges is not a crime of course,but it is a way to stir resentments andfreshen memories of other wrongs long sincepast. The charges against Kanahele and his co-defendant Kaaihue grew out of two botchedattempts by the authorities to arrest taxprotester and sovereignty activist NathanBrown on January 27 and March 16, 1994.Fugitive Brown was long gone (he had not beenseen for over a year) and the circumstancesof his escape had been consigned to thedustbins of old business. But the policy ofofficial forbearance came to a sudden endwhen the Nation of Hawai'i provoked the lawenforcement apparatus with its "war crimesnotices" campaign, and unleashed the unhappymemories of a Nathan Brown gone for good. Inshort order, the federal Club Honolulu wentto work, in the form of thin-skinned federaljudges, compliant U.S. attorneys, a dutifulFBI, and a scheming U.S. Marshal's office.The low point in this campaign to stalk thedefendants anew was a meeting between theKanahele group and the U.S. Marshals on June13, 1995,33 called by the Nation of Hawai'i todispel suspicions that they were hidingfugitives (such as the notorious JackGonzalez34 and the elusive Nathan Brown),gathering arms, and preparing for some sortof "Waco" confrontation. One cannot hear anaccount of this meeting without thinking ofPresident Grover Cleveland's reference to theUnited States's shameful exploitation of a"friendly and confiding" people that hasmarked the history of the islands.35 MarshalAnne Kent's treacherous mission at this June13 meeting was to extract from Kanaheledamaging admissions that in the past he hadintended to prevent the authorities fromarresting Brown. The warnings that one readsabout in the lawbooks (e.g., "anything yousay can be used against you," etc.) don'tapply because Kanahele hadn't been arrestedyet, although that clearly was the plan. AnneKent did succeed in coaxing from Kanahele acomment the gist of which was: "You put yourhand on my gate, I move your hand. You comethrough my gate, or into my yard, I'll knockyou down."36 In Idaho, remarks like this areevidence of red-blooded American spunkiness.In Hawaii, they are an admission of an intentto obstruct justice.

At the June 13, 1995 meeting Anne Kent wentso far as to say to Kanahele: "Repeat afterme: I, Dennis Kanahele, [pledge that I willnot] invite Nathan Brown into my home if heis cold and hungry [and in the greatest ofneed]."37 Michael McGuire reminds us thatstatus among primates requires frequentreinforcement,38 and here is a nice example.In the campaign against Kanahele, a number ofofficials repeatedly demanded from him therespect they were due-the police, themarshals, the judges among them. After 118days in prison and one mistrial, Kanahele wasmore than anxious to give them the assurancesthey wanted-no objections to jurisdiction,pledges of nonviolence, promises of futurecooperation, and commitments to desist fromthe service of notices of human rightsviolations.

Judge David Ezra's decision from the bench onNovember 27 finally releasing Kanahele was atriumphant reaffirmation of federal judicialauthority over its humble but gratefulsubjects. The scene was suggestive of thehighly paternalistic tradition establishedunder martial law in the "Republic of Hawaii"where oppressive sentences were dispensed,only to be relaxed later in a great showingof official magnanimity.39 There were noapologies or regrets to Kanahele for the lostfour months. There was mention of the recentassassination of the Prime Minister of Israelby a true believer. There was reference tothe "serious" nature of the crime ofobstruction of justice, and how under theancient Hawaiian "kapu" system one would"defy" the chiefs only at risk of death.There was repeated talk of the government's"concern" for the safety of law enforcementofficers and how Kanahele had many"followers" and "supporters" who may be "morezealous than you are." Thus Kanahele was freeto go, but he was warned against "incitingcriminal conduct," which is another one ofthose criminal laws that is marvelouslyresponsive to discretionary anxiety.

C. The Question of Threat: The Role of Self-Deception

Physical intimidation of another person hasto be one of the most efficient ways to startthe moralistic retaliation associated withthe sense of justice. The only worse offensewould be threats that encompass individualsand family. The awkward genius of the warcrimes notices campaign of the Nation ofHawai'i was that it could be perceived asaccomplishing both goalssimultaneously-threatening the physicalsafety of individual judges and thecollective enterprise of law enforcement.This transgression, so construed, requiresdecisive countermeasures.

The evidence that succeeded in imprisoningKanahele for four months occurred not attrial but at his bail hearing where adecision is supposed to be made about whetherthe defendant is a flight risk or a threat tothe safety of the community before he istried. It is hard not to be released on bail.The Menendez brothers are strong candidatesfor bail. In the course of their careers,Manson and Bundy got out on bail. If theyhave some ties to the community, peoplecharged with murder, robbery, and raperoutinely get out on bail.

But Kanahele, the man recognized as one ofthe five or six leading figures in theHawaiian sovereignty movement? No way; he wasa flight risk and a "danger" to the safety ofthe community. The "evidence" on this scorewas an impressive accumulation of hearsay(which is allowed in proceedings of thissort), gossip, rumor, and fantasy supportingthe official prediction that Kanahele wouldeither flee or beat somebody up before he wasbrought to trial. A bail hearing is an idealforum for reducing the government's worstfears to fact.

The government's proof at the pre-bail phaseof the case shows considerable skill inenhancing the scope of the threat (that is,"we are all in this together") and itscredibility. Thus, the defendant has shown"disdain" for law enforcement, has"stridently denounced" the jurisdiction ofthe federal court, has "actually threatened"to arrest state and federal officers, has"[harassed] the judiciary and [shows]contempt for legal authority," has toldarresting officers that they lackjurisdiction over him, has a "strongly heldconviction to ignore any order of the court,"has "threatened state judges, federal judges,and law enforcement officers," and "has evenhad the audacity to threaten the U.S. Marshalwith the District of Hawaii with physicalviolence."40

The credibility of the threat is enhanced inargumentation by inflating the danger posedby the offender. Thus defendant has a "longcriminal history," has lived a "life of crimeand anti-social behavior,"41 has used sixaliases (two of those listed are alternativespellings of his nickname: "Bumby" and"Bumpie"), has an extensive rap sheet thatincludes a long list of offenses, includingcriminal contempt, driving with a suspendedlicense, trespass, criminal trespass,resisting arrest, criminal property damage.42Incredibly, the man has three felonyconvictions (use of a gun, terroristicthreatening, resisting arrest):

[The convictions stem from] an illegal occupation of state land at the Makapuu Point Lighthouse. The defendant and others had settled on State property and claimed it as their own. The State of Hawaii, Department of Land and Natural Resources had called upon the Honolulu Police Department to evict the trespassers. The trespassers and this defendant simply refused to obey law enforcement officers who were in the lawful discharge of their duty.43
From the depths of historical politicalconflict thus emerges a reputation forviolence, which will loom large in laterlegal proceedings.

Once government agents convince themselvesthat this is a violent man charged withviolent crimes, argumentation can proceedwithin the limits of imagination whiledeception/self-deception is given full sway.The government "proof" of threats to thephysical safety of judges and police officersneed not be limited to the innocuous noticesof violation but can include wild rumorsabout associations with militia madmen,subtle hints about a weapons buildup atWeimanalo (the place is "rumored to befortified to some extent"),44 andidentification of symptomatic incidents ofcivil disobedience that must be nipped in thebud. Judge Gillmor's decision affirmingMagistrate Kurren's detention order denyingbail to Kanahele shows how the legal systemtolerates self-deceptions that masquerade asreality:

The magistrate judge declined to consider evidence that the Nation of Hawaii has had contacts with the Michigan Militia, that its members are storing arms and ammunition in former World War II bunkers in Waimanalo, and that on September 24, 1993, 25 to 30 members of an affiliated group, the "Ohana Council for the Hawaiian Kingdom", disrupted a state court hearing on the island of Hawaii, refused to leave the courtroom and prevented the judge and staff from exiting the courthouse.45
This is an example of what might be called afootnoted version of nonverbal communicationand signaling.46 What is meant by the messageis that reviewing judges should understandthat the Nation of Hawai'i is very likely agun-toting cult of Waco terrorists but itwould be a reversible legal error to insiston the truth of that proposition for themoment.

Another version of judicial signaling wasoccasioned by the fact that Magistrate JudgeBarry M. Kurren, the original decisionmakerwho denied Kanahele's bail motion onAugust 4, 1995, was the unhappy recipient ofone of the Nation's war crimes notices andhad gone so far as to state at the detentionhearing his agreement with Judge King'sopinion that the notices constitute a"threat" against duly constituted authority.47The legal difficulty is that a judge who isthreatened by a defendant could be thought tohave a "personal bias or prejudice" thatwould require some other judge to sit injudgment.

This "fear" was not considered by JudgeKurren to be sufficiently disabling toprevent him from reaching a fair decision,and he did so by denying all bail andeffectively insuring Kanahele's incarcerationfor the next four months. This ruling byJudge Kurren was later affirmed by JudgeGillmor (a new appointee obviously feelingher way gingerly in the world of judicialpolitics), and then affirmed again by a 2-1vote of a three-judge panel of the NinthCircuit.48 Judge Gillmor explained why theformal law did not require thedisqualification of Kurren: "Magistrate JudgeKurren's characterization of the Notice as a`threat' was an objective assessment of theintent of its sender. This comment was not anacknowledgment that the magistrate judgesubjectively felt threatened or an indicationthat the Notice compromised hisimpartiality."49 Thus the "threats" lurking inthe deep background of the war crimes noticeswere sufficiently credible to keep Kanahelelocked up but not real enough to disqualifythe judges who were hearing the case.

At trial, the illusory nature of these"threats" against public officers was broughtinto sharp focus. The principal charges dealtwith Kanahele's attempts on two separateoccasions to interfere with the arrest ofNathan Brown. Nathan Brown must be one of themost casually pursued fugitives in thehistory of federal jurisprudence. Rarely hasa man been so vulnerable to arrest but soimmune from it. He moved freely about thecommunity. He lived on the beach. He didresearch in the law library. He testified atpublic hearings.

Occasionally, somebody would try to arresthim but not with much enthusiasm. On January27, 1994, the "fugitive" Nathan Browntestified at a water commission hearing inWaihole in full view of ten or twelve policeofficers50 who must have been deterred fromtheir mission by the eloquence of hisremarks. This man was begging to be arrestedbut it never quite happened. The "arrest,"such as it was, occurred on the Kamehamehahighway that evening as the three vehicles inthe Kanahele party (with men, women, andchildren) were pulled over by several policevehicles. The arrest was announced by one ofthe officers who rushed up to the vehiclecarrying Brown, declined by Brown ("I can'tgo with you Bro"), and eventually wasresolved by Brown's agreeing to show up for ameeting a few days hence (which he never didattend). One officer later testified that itwas "not prudent" to press the issue becausethere were "six of us" and "eighteen ortwenty of them" (which drew groans in thecourtroom because most of the "thems" werewomen and children plus some bystanders drawnto the scene by the flashing lights on thepolice vehicles).

The sole evidence of "obstruction" againstKanahele's co-defendant Kaaihue that night isthat he stood by during the conversationswith Brown, perhaps with his chest "puffedout" according to prosecutor Osborne (morechortles from the gallery on this one). Thereason that the image of Gordon Kaaihue withhis chest "puffed out" brings instant mirthis that he is a giant of a man, with aclassical Hawaiian physique, who coulddispose of a dozen assailants if they choseto go unarmed. As Kaaihue said simply attrial, "God blessed me with a nice body."Having a nice body, it seems, becomes"obstruction of justice" at the discretion ofthe United States.

Kanahele's "interference" during this January27, 1994 incident consisted chiefly ofserving the officers with copies of the 1993Apology Bill and other documents. Again, theawesome job of arresting Nathan Brown mighthave been easier without the presence ofKanahele and the bulky Kaaihue, not tomention the crying children, the flashinglights, and the rubbernecking bystanders.Detecting an "interference" here with anarrest that was abandoned as a bad job is areach of the lowest kind, and it shows theease with which prosecutors can manufacturecrimes out of thin air.

For the next several weeks, Nathan Browncontinued to move freely about town where hecould have been arrested hundreds of times byscores of officers. But this slow motion hotpursuit could end at only oneplace-Kanahele's doorstep in Waimanalo. OnMarch 16, 1994, two federal marshals dressedin plain clothes who were staking out theplace spotted Brown and Kanahele in a vehicleapproaching the property. A fair summary ofevents is that the officers rushed to arrestBrown, who ran into the carport, across theproperty, never to be seen again. MarshalLawrence Tice testified that he "collided"with Kanahele, who said, "Who the hell areyou?," and "You can't be here. This isHawaiian land;" that Kanahele told a woman(his sister) on the property to "padlock thegate" and "call the boys;" that "five minuteslater I told him [Kanahele] who I was;" thathe, Tice, said to Kanahele that a "fugitivehas just gone across your property;" thatKanahele announced that "Nathan Brown is notsubject to the laws of the U.S." and that "wewere violating the law and were subject toarrest;" that Kanahele had given them copiesof the Apology Bill, and that Tice hadresponded, "We're not here to arguesovereignty;" and that after a short passageof time, Kanahele had invited the Marshalsonto the property to search for Brown, butthat they declined on the supposition that hewould not be there.

Once again, it is hard to detect any crimearising out of this little mĂl­e, unless itis one with regard to Brown whose debt tosociety increases with each fresh escape.Constitutional scholars might speculate onhow ancient Hawaiian notions of "refuge"(which offered safe harbor to fugitives whocould make it to the protected places) mightqualify the federal law on harboringfugitives.51 Before that, one wonders whatdegree of aid and assistance must be rendereda fugitive to constitute "harboring": A shortlift in an automobile? A cup of hot coffee?The point of the crime obviously is todiscourage rendering sustained aid andassistance to enable somebody to escape fromthe authorities.52 It is not enough to knowthat "a fugitive has just gone across yourproperty," to use Marshal Tice's words.Any "obstruction" charge based on these factsis a reach, too. Kanahele, again, didn't domuch, other than drawing the Apology Billfrom its accustomed resting place. Theofficers' credentials were in order but thecase is complicated by Kanahele's genuinebelief that the authorities lack jurisdictionon Hawaiian lands. (State of mind is alwaysthe key question in criminal cases.) On topof this, the incident gives rise to hard-coredefense of person and property issues sincenobody, even law-abiding Hawaiians, can beexpected to sit idly by while a couple ofrough-looking characters storm the placelooking to seize a friend.53 Had Kanahele saidhe was defending "private property" ratherthan "Hawaiian lands" perhaps a surge ofofficial sympathy would have conceded him theprivilege of a little testiness in defense ofboundary.

These two Nathan Brown nonincidents (thefailed arrests of January 27, 1994 and ofMarch 16, 1994) happen all the time in lawenforcement and they never make it to theprosecutor's desk, much less to the courtdockets. But Kanahele and Kaaihue were not tobe the beneficiaries of this usual fate ofofficial forbearance. More than a year laterthe service of the war crimes notices was thewatershed event that revived the prosecutor'sinterest in the case.

When Kanahele came up for his second try forbail on November 27, 1995 before Judge DavidEzra, after 118 days in jail, U.S. AttorneyLeslie Osborne did not even mention thefictitious armed uprising that was supposedto be under way in Waimanalo. His majorpoints of concern were Kanahele's"antisocial" past and the great risks "ofserious injury and even death" that ensuedwhen the police stopped the Kanahele group onthe Kamehameha highway in an attempt toarrest Nathan Brown. That this "publicdanger" was the work of the authorities andnot Kanahele did not escape the notice ofJudge Ezra, who finally ordered thedefendant's release, subject to a number ofonerous conditions (spend the nights in ahalf-way house provided he pays for theservice, stay away from Waimanalo) that weresupposed to assure his appearance at the nexttrial.54

D. Reciprocity, the Question of Honor, Embarrassment and Provocation

One expects the sense of justice to go towork against gross reciprocity lapses butmost observers would be surprised thatomissions of this sort can keep the offenderin jail. The government's brief to the NinthCircuit Court of Appeals in support of thedetention order (that is, the bail denial)tells this version of negotiations betweenKanahele and the Assistant Chief of theHonolulu Police Department over arrestwarrants growing out of the refusal of somemembers of the sovereignty movement to carrystate issued license plates on theirvehicles:

The defendant and his associates agreed to settle their outstanding warrants and take care of the sovereignty plate problem. However, the defendant and his associates simply reneged on their commitments to the Chief and other law enforcement officials . . . . After the defendant breached the agreement with [the Chief], it became necessary to arrest the defendant's followers on those State warrants. When the arrest began, Kanahele contacted the Police Department and threatened to either "crack" or "whack" Honolulu Police officers if they proceeded with their efforts. . . . Eventually, defendant did apologize for his inflammatory language.55
Thus, the defendant "cannot be trusted tokeep his word" and the incident "shows theillusory nature of this defendant'spromises."56 The record "is replete with thedefendant's contempt for the court and hisrefusal to honor his word to lawenforcement."57

There was another score to settle-that is,the political embarrassment stemming from theMakapuu Point Lighthouse takeover:

The defendant and others had settled on state property and claimed it as their own. The State of Hawaii, Department of Land and Natural Resources had called upon the Honolulu Police Department to evict the trespassers. The trespassers and this defendant simply refused to obey law enforcement officers who were in the lawful discharge of their duty.58
These incidents support another view of theKanahele case, namely, that it representsopportunity to even the score on a personwhose conduct had embarrassed and provokedofficialdom, to the point of loss ofreputation. Kanahele had engineered thetakeover of the Makapuu Lighthouse a fewyears earlier, and had walked away apolitical winner. He had encouraged scofflawpolicies of refusing to carry state-issueddrivers' licenses and to display licenseplates. He had negotiated a warrantsettlement with the Assistant Chief ofPolice, and had not honored the settlement.And now, after serving his notices, he washeard to "brag" about how he had preventedthe authorities from arresting Nathan Brown.59That there are no crimes of impudence,bragging, intentional infliction ofembarrassment on public officials, or disdainfor process is but a tactical and temporarylimitation. Conduct that leads to strongofficial resentment can inspire imaginativesearches for some other charge that mightsuffice to teach the requisite lesson.


The Kanahele case is a shining example of thesense of justice at work in human affairs.Kanahele was prosecuted because he threatenedthe authorities, defected from the group,offended the elite, alienated his peers, andtarnished the reputations of officials. Butwhat makes the U.S. courts the envy of theworld is that people who come there expect tosee justice happen. The same sense of justicethat drove this case can be turned on itsmanagers, and what do we find? Trumped-upcharges and self-deceptions by a bunch ofnervous authorities who are protecting theirstatus and reputations by manipulating thelaws of the greatest democracy the world hasever seen.


Notice is herein given to you that you have made yourselves personally liable for war crimes and war crimes against humanity.

Your acts show contempt towards the Kanaka Maoli People and the international obligations of the world. Your [ ] violation of the rights of the Kanaka Maoli People and our Government in full knowledge of those rights and process of restoration of our inherent sovereignty, traditions and culture, shows your intent to separate the Kanaka Maoli people and their lawful government.

This document, inclusive of exhibit "A", the Legal Foundation of Hawai'i, the Hawai'i Constitution, The Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, the International Convention on the Suppression and Punishment of the Crime of Apartheid and the Principles of international co- operation in the detection, arrest, extradition and punishment of persons guilty of war crimes and crimes against humanity, is prima facie evidence of your full knowledge and participation in the direct murder and extermination of the Kanaka Maoli People and their Government.

In the future, you shall be sought out, arrested and imprisoned, to be brought before an international Criminal Tribunal to answer for your participation in crimes of Apartheid and Genocide.

There will be no appeal.

Judgment will be final.

* Professor of Law, University ofWashington; George C. Johnson VisitingProfessor of Law, William S. RichardsonSchool of Law, University of Hawai'i, Fall,1995. This paper was originally prepared forthe "Sense of Justice" panel, Association forAdvancement of American Science, Baltimore,Md., February 9, 1996, organized by TheGruter Institute.


1.The Apology Bill to Native Hawaiians, Pub.L. No. 103-150, 107 Stat. 1510 (1993).

2.See S. Rep. No. 126, 103d Cong., 1st Sess.21 (1993).

3.See generally Michael Dougherty, To StealA Kingdom (1992); David E. Stannard, Beforethe Horror: The Population of Hawai'i on theEve of Western Contact (1989); Mililani B.Trask, Historical and Contemporary HawaiianSelf-Determination: A Native HawaiianPerspective, 8 Ariz. J. Int'l & Comp. L. 77(1991).

4.See, e.g., Michael Kioni Dudley & KeoniKealoha Agard, A Call for HawaiianSovereignty 1-23, 64-71, 89-93 (1990); NativeHawaiian Rights Handbook 3-146 (MelodyKapilialoha Mackenzie ed., 1991); Haunani-KayTrask, Coalition-Building Between Natives andNon-Natives, 43 Stan. L. Rev. 1197, 1198-1203(1991); Bradley Hideo Keikiokalani Cooper, ATrust Divided Cannot Stand - An Analysis ofNative Hawaiian Land Rights, 67 Temp. L. Rev.699 (1994).

5.United States v. Washington, 384 F. Supp.312 (W.D. Wash. 1974).

6.517 P.2d 26 (Haw. 1973), cert. denied, 417U.S. 962, and cert. denied, 417 U.S. 976(1974). See Robinson v. Ariyoshi, 441 F.Supp. 559, 564-67 (D. Haw. 1977) (attackingthe McBryde Court for its "completelyrevolutionary holdings" and "culinarycreations," condemning the court's "suasponte" efforts to "completely restructure"state water law, and mocking the"speciousness" of its reasoning: "It wasstrictly a `public-policy' decision with noprior underlying `legal' justificationtherefor. The majority wanted to see streamsrunning down to the sea on an all-year-aroundbasis.").

7.Pai `Ohana v. United States, 875 F. Supp.680, 687, 695 (D. Haw. 1995).

8.The story is told in Plaintiff-Appellee'sMemorandum in Support of the Detention Orderat 2-8, United States v. Kanahele (9th. Cir.Sept. 11, 1995) (C.A. No. 95-10373)[hereinafter U.S. Brief on Appeal fromDetention Order].

9.See, e.g., David Foster, Sorting ToughTalkers from Terrorists, Seattle Times, April18, 1995, at A1; Paul de Armond, Wise Use inNorthern Puget Sound 59 (1995) (reporting ontactics such as "video-tapingenvironmentalists, disrupting meetings withnoisy livestock or heavy equipment, and othermethods of harassment and intimidation"); seealso id. at 186 (reporting on enthusiasticannouncement of the Snohomish County PropertyRights Alliance featuring an appearance byDick Carver, Nye County, Nevada, who"personally" drove a bulldozer into a roaddespite "forest service orders to stop");Timothy Egan, Federal Uniforms Become Targetof Wave of Threats and Violence, N.Y. Times,April 15, 1995, at A1.

10.Roger D. Masters, Toward a More CoherentTheory of Justice, in The Sense of Justice:Biological Foundations of Law 290, 292 (RogerD. Masters & Margaret Gruter eds., 1992)[hereinafter Sense of Justice]. See alsoFrans de Waal, Good Natured: The Origins ofRight and Wrong in Humans and Other Animals(1996).

11.See Masters, supra note 10, at 295 ("Whenthere has been a departure from expectednorms, the emotions (anger, moralisticaggression) constitute a feeling ofinjustice, whereas compliance withexpectations and the restoration ofpreviously established norms are associatedwith emotions of pleasure or even euphoriaunderlying the sense of justice.").

12.Frans B.M. de Waal, The Chimpanzee's Senseof Social Regularity and Its Relations to theHuman Sense of Justice, in Sense of Justice,supra note 10, at 241, 242, 248; see alsoMichael T. McGuire, Moralistic Aggression,Processing Mechanisms, and the Brain: TheBiological Foundations of the Sense ofJustice, in Sense of Justice, supra, at 31,32 (Roger D. Masters & Margaret Gruter eds.,1992).

13.William H. Rodgers, Jr., Deception, Self-Deception, and Myth: Evaluating Long-TermEnvironmental Settlements, 29 U. Rich. L.Rev. 567, 569-70 (1995); Robert Trivers,Social Evolution 395-420 (1985).

14.Jon M. Van Dyke & Paula Henderson, TheTrial of Lili'uokalani, February 1895, inTrial of a Queen: 1895 Military Tribunal 1(Jud. History Ctr., Hawai'i State Jud. ed.,1995) [hereinafter Trial of a Queen].

15.The author attended significant portionsof the trial and hearings arising out of thecase. Unless otherwise noted, what followsis based on notes taken from personalobservations of those and related events.

16.Indictment, United States v. Kanahele (D.Haw. Aug. 2, 1995) (CR. No. 95-00764).

17.See Order Affirming Magistrate Judge'sDetention Order, United States v. Kanahele(D. Haw. Aug. 21, 1995) (CR. No. 95-00764)(affirming detention-without-bail order ofAug. 7, 1995) [hereinafter Order AffirmingMagistrate Judge's Detention Order]. Kanahelewas held from the date of his arrest onAugust 2, 1995, see id. at 2, until hisrelease in mid-November after Judge HelenGillmor declared a mistrial, see Linda Hosek,Judge Sets Kanahele "Free with a ShortLeash", Honolulu Star-Bull., Nov. 14, 1995,at A1.

18.See Mark Matsunaga & Ken Kobayashi,Turmoil Surrounds Kanahele Mistrial, HonoluluAdvertiser, Nov. 1, 1995, at A1, A2.

19.See Hosek, supra note 17, at A1.

20.See Matsunaga & Kobayashi, supra note 18,at A1. Kanahele's attorney, Hayden Aluli,submitted a motion to have the chargesdismissed on double jeopardy grounds. JudgeGillmor rejected the motion and Kanahele hasappealed that decision to the Ninth CircuitCourt of Appeals. See Order DenyingDefendants' Joint Motion to Dismiss theIndictment with Prejudice, United States v.Kanahele (D. Haw. Jan. 22, 1996) (CR. No. 95-00764 HG). A second trial is pending thedecision of the appeals court. Linda Hosek,New Kanahele Trial Postponed Until Ruling byAppellate Court, Honolulu Star-Bull., April23, 1996, reprinted athttp://www.aloha.net/nation/postponed.html.

21.See generally Affidavit of Francis A.Boyle, October 20, 1995, at http://www.hawaii-nation.org/boyleaff.html (providing briefhistory of how Professor Boyle came to serveas "Legal Adviser to the Nation of Hawaii"and stating that Professor Boyle provided"legal advice and counsel to Mr. Kanahele andthe citizens of the Nation of Hawaiiconcerning the establishment of theirstate"); Francis A. Boyle, Restoration of theIndependent Nation State of Hawaii UnderInternational Law, 7 St. Thomas L. Rev. 723(1995) (analyzing the Apology Bill andconcluding that the legitimacy of Hawaiiansovereignty claims are one of the bill'simplications); Professor Believes U.S.Apology Gives Hawaiians Right to Nationhood,Maui Press, January 14-20, 1994, reprinted athttp://www.aloha.net/nation/profapology.html(describing Professor Boyle's views onHawaiian sovereignty). Cf. Jennifer M.L.Chock, One Hundred Years of Illegitimacy:International Legal Analysis of the IllegalOverthrow of the Hawaiian Monarchy, Hawai'i'sAnnexation, and Possible Reparations, 17 U.Haw. L. Rev. 463 (1995) (arguing that theU.S. violated international law when itparticipated in deposing Queen Liliuokalaniand that monetary reparations to NativeHawaiians are appropriate); Francis A. Boyle,American Foreign Policy Toward InternationalLaw and Organizations:1898-1917, 6 Loy. L.A.Int'l Comp. L.J. 185 (1983) (tracing themesin U.S. foreign policy and detailing U.S.recognition of international law during theperiod between 1898-1917).

22.U.S. Brief on Appeal from Detention Order,supra note 8, at 9.

23.John Hartung, Love Thy Neighbor: TheEvolution of In-Group Morality, Skeptic, No.4, 1995, at 86; Gary R. Johnson, TheEvolutionary Roots of Patriotism, inPatriotism in the Life of Individuals andNations (D. Bar-Tal & E. Staub eds.,forthcoming 1996).

24.U.S. Brief on Appeal from Detention Order,supra note 8, at 2, 5-8.

25.Order of Detention Pending Trial at 1,United States v. Kanahele (D. Haw. Aug. 7,1995) (CR. No. 95-00764).

26.U.S. Brief on Appeal from Detention Order,supra note 8, at 9.

27.Based on author's observations.

28.Sondra Grace, Kanahele's Trial Is inDefense of All Rights, Kauai Times, Nov. 8,1995, at A7 (providing first-handobservations on trial in opinion page essay).

29.Cf. 18 U.S.C. 111 (1994) ("Whoeverforcibly assaults, resists, opposes, impedes,intimidates, or interferes with any persondesignated in section 1114 of this titlewhile engaged in or on account of theperformance of official duties . . . shall. . . be fined under this title or imprisonednot more than one year, or both.").Generally, knowledge of the identity of afederal officer is unnecessary for aconviction under 111. United States v.Feola, 420 U.S. 671 (1975). However, theFeola Court also said:

We are not to be understood as implying that the defendant's state of knowledge is never a relevant consideration under 111. The statute does require a criminal intent, and there may well be circumstances in which ignorance of the official status of the person assaulted or resisted negates the very existence of mens rea. For example, where an officer fails to identify himself or his purpose, his conduct in certain circumstance might reasonably be interpreted as the unlawful use of force directed either at the defendant or his property. In a situation of that kind, one might be justified in exerting an element of resistance, and an honest mistake of fact would not be consistent with criminal intent.
Id. at 686. See also United States v. Span,75 F.3d 1383, 1388 (9th Cir. 1996) (adoptingthe holding of Feola in a jury instruction).For one version of the Kanahele incident, seeVin Suprynowicz, Federal Priestess EnforcesTyranny by Hiding the Bill of Rights,Libertarian, Nov. 19, 1995, reprinted athttp://www.aloha.net/nation/priestess.html.

30.War Crimes Notice signed by MaltbieNapoleon, Hawai'i Attorney General (June 20,1995). See infra Appendix.

31.18 U.S.C. 876 (1994) prohibits mailing aletter "containing . . . any threat to injurethe person of the addressee." Under 876:

[The government] must present evidence sufficiently strong to establish beyond a reasonable doubt that the communication in question conveys a threat of injury. Where a communication contains language which is equally susceptible of two interpretations, one threatening, and the other nonthreatening, the government carries the burden of presenting evidence to remove that ambiguity.
United States v. Barcley, 452 F.2d 930, 933(8th Cir. 1971).

32.See Mark Matsunaga, Nation of Hawaii WarnsU.S., State Judges, Honolulu Advertiser, June28, 1995, reprinted at http://www.hawaii-nation.org/warns.html.

33.The account of this meeting is based uponthe notes of the author, drawn from theaccount of several witnesses.

34.U.S. Brief on Appeal from Detention Order,supra note 8, at 2 n.3. See also A. KamNapier, The House that Jack Built, Honolulu,November 1995, at 68 (providing a history ofGonzalez's legal troubles).

35.Dudley & Agard, supra note 4, at 42.

36.U.S. Brief on Appeal from Detention Order,supra note 8, at 8.

37.Based upon author's recollection ofwitness accounts.

38.M. McGuire et al., Social Dominance inAdult Male Vervet Monkeys: GeneralConsiderations, 22 Soc. Sci. Information 89,90 (1983). See also Frans de Waal,Peacemaking Among Primates 157-60 (1989)(describing status rituals of rhesus andstumptail macaques); Frans de Waal, GoodNatured: The Origins of Right and Wrong inHumans and Other Animals (1996).

39.Jon Kamakawiwo'ole Osorio, A HawaiianNationalist Commentary on the Trial of theMo'i Wahine, in Trial of a Queen, supra note14, at 29, 34-39 (listing persons accused oftreason and misprision of treason in the 1895trials; many of the sentences were in excessof five years, with some extending thirty tothirty-five years, but all offenders had beenreleased by Jan. 1, 1896).

40.U.S. Brief on Appeal from Detention Order,supra note 8, passim.

41.Id. at 3, 5.

42.See Pretrial Services Report, UnitedStates v. Kanahele (D. Haw. Aug. 4, 1995)(No. 95-00764HG-01) at 2, 3 (recommendingagainst bail).

43.U.S. Brief on Appeal from Detention Order,supra note 8, at 4.

44.Id. at 6.

45.Order Affirming Magistrate Judge'sDetention Order, supra note 17, at 4 n.2.

46.Nonverbal communication is a substantialsubject in evolutionary biology. See, e.g.,William H. Calvin, The Ascent of Mind: IceAge Climates and the Evolution ofIntelligence 23-25 (1990); P.B. Medawar &J.S. Medawar, Aristotle to Zoos: APhilosophical Dictionary of Biology 170(1983) (on the origins of language). See alsoMatt Ridley, The Red Queen: Sex and theEvolution of Human Nature 332-34 (1994) (onthe elements of deception in communication).The example in the text is an illustration of"coded" communication-saying one thing andmeaning another. This writer would besurprised if this is not a phenomenon that isobservable in judicial behavior.

47.U.S. Brief on Appeal from Detention Order,supra note 8, at 13-14.

48.One of the votes for keeping Kanahelelocked up came from Alfred T. Goodwin ofPasadena who is best known in the islands forhis dreadful ruling in the 1980s forbiddingthe Hawai'i Supreme Court from divestingsugar companies of their "vested" waterrights. Robinson v. Ariyoshi, 753 F.2d 1468,1475 (9th Cir. 1983). Divesting Kanahele ofhis freedom is a much more discretionarything. Curiously, one measure of good judgingtoday is the ability to defer to thefoolishness of the authorities whose judgmentis contested.

49.Order Affirming Magistrate Judge'sDetention Order, supra note 17, at 8-9.

50.The account in the next several paragraphsis based upon the author's personal notes andobservations. It has not been verified byreference to the official transcript.

51.This theory has been advanced byWilliamson Chang of the William S. RichardsonSchool of Law. Cf. Williamson B.C. Chang,The "Wasteland" in the Western Exploitationof "Race" and the Environment, 63 U. Colo. L.Rev. 849, 852, 858, 860 (1992) (discussingthe wholly different world-view oftraditional Hawaiian thought and thecentrality of relationships with land to thatview).

52.18 U.S.C. 1071 (1994) makes it a crimeto "harbor[] or conceal[] any person forwhose arrest a warrant or process has beenissued under the provisions of any law of theUnited States, so as to prevent his discoveryand arrest . . . ." For an example of"harboring" analysis, see United States v.Foy, 416 F.2d 940 (7th Cir. 1969). For adiscussion of the term "harbor" in thecontext of Anti-Alien Harboring Statutes, seeGregory A. Loken & Lisa R. Babino, Harboring,Sanctuary and the Crime of Charity UnderFederal Immigration Law, 28 Harv. C.R.-C.L.L. Rev. 119, 141-48 (1993).

53.See supra note 25.

54.See Hosek, supra note 18, at A1.

55.U.S. Brief on Appeal from Detention Order,supra note 8, at 7-8.

56.Id. at 9.


58.Id. at 4.

59.Id. at 1.

* Transcribed from letter of June 20, 1995,bearing "Nation of Hawai'i" letterhead andsigned by Maltbie Napoleon, Nation ofHawai'i Attorney General.

This article is reproduced with permission of the Washington Law Review Association.