A four-year-old case stemming from protests over the Hawaii Superferry took an unusual turn recently when a judge ordered the Kauai Police Department (KPD) to return a badge they took from the arrested leader of the Kingdom of Atooi.

Kauai attorney Dan Hempey successfully argued that his client is entitled, under the United Nations Declaration on the Rights of Indigenous Peoples, to possess a badge identifying himself as a federal marshal in the Kingdom of Atooi.

Dayne “Aipoalani” Gonsalves, the alii nui of the Kauai-based Kingdom of Atooi, is awaiting trial on misdemeanor charges stemming from an Aug. 26, 2007, protest against the Superferry, as well as two counts of impersonating a law enforcement officer.

Gonsalves allegedly produced the badge when police arrested him on Oct. 23, 2007, for the Superferry-related offenses, resulting in the first charge of impersonating an officer. The second count was added when police found the badge in a pouch in Gonsalves’s truck during an his arrest on April 30, 2008, for failing to appear in court on the initial impersonation charge.

Gonsalves has consistently maintained that he was not impersonating a police officer, but instead legitimately holds the badge as a marshal of the Kingdom of Atooi, a sovereign entity over which the cops have no authority. The badge bears the Gonsalves family’s coat of arms and reads “Hawaii Federal Marshall–Kingdom of Atooi.”

Gonsalves agreed to a settlement offer according to which he would pay a $250 fine for obstruction and in return the other charges would be dropped. The deal soured, however, when the Kauai County prosecutor’s office imposed an additional term requiring Gonsalves to surrender his badge, according to Hempey’s motion asking the judge to enforce the original plea offer and strike the “illegal condition.”

Hempeyʻs motion further included that the “Defendant contends that this United Nations declaration clearly obliges the United States and its political subdivisions to recognize, at a minimum: 1) Defendant’s right to a position in government in his Atooi nation; 2) Defendant’s right to possess an identification card identifying him as a citizen of his Atooi nation; and the right to possess a badge.

“Defendant contends that the Kauai Office of the Prosecuting Attorney violates his human rights by demanding, as a condition of a plea bargain in a criminal case involving misdemeanors and petty misdemeanors, that he surrender any of his human rights to self-determination as an indigenous person of these islands–including his right to be identified within his Kingdom by his title and badge,” according to the motion.

Kauai Circuit Court Judge Kathleen Watanabe agreed during a July 13 hearing that Gonsalves does have a right to his badge, and she told Hempey to prepare an order directing KPD to return the badge now.

The judge did not grant the part of the motion that asked for the original plea agreement to be enforced, saying that no agreement was in effect.

Deputy Prosecutor Melinda Mendes vigorously opposed Watanabe’s decision, saying the badge was needed as evidence to try Gonsalves on charges of impersonating an officer.

Kauai prosecutors have not determined whether they will appeal the ruling or offer Gonsalves another plea agreement. His trial is set for August 29. –Joan Conrow

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