Hawaiian’s defense invokes UN policy

LIHU‘E — A Lihu‘e attorney is using recent changes in federal and state policies regarding the rights of indigenous peoples to defend a Kekaha man in a case stemming from the Hawai‘i Superferry protests in 2007.

Fifth Circuit Judge Kathleen Watanabe earlier this month granted Dan Hempey’s motion that called on the Kaua‘i county prosecutor to strike a reference in an earlier plea deal that would have required Dayne Aleka Gonsalves to surrender an “illegal badge,” according to court minutes from a July 13 hearing. She also ordered that any future plea deal should not contain that requirement.

The motion faced its first hurdle Tuesday with a state request for a motion to stay the order, on the basis that as state’s evidence the “Hawai‘i Federal Marshal” badge should not be returned until the Aug. 9 pretrial hearing or the ensuing trial.

Melinda Mendes, county deputy prosecutor, said the state would exercise its right to appeal the order if the stay was not granted. She asserted that the stay allows the trial to go forward as planned, while an appeal process would push the trial well past its scheduled court date.

Hempey said the prosecution had the right to appeal the order but noted a lack of information for an adequate response to warrant an automatic stay and opposed it on record. He said there are ample photos of the badge to use as evidence and that there was no need to keep the property.

Watanabe granted the prosecution’s motion to stay the order until the pretrial hearing to clarify the request for extraordinary relief.

Mendes filed the motion, which states that a pending trial is reason to reconsider the order and that the request is made in the interests of fairness and justice — not for the purpose of delay.

“The state is requesting that the order to return the badge immediately to the defendant be stayed pending the ruling on the motion to reconsider the appeal,” the motion states. Were the stay order to be denied, Mendes said, the state would have appealed it.

Watanabe questioned whether the prosecution was specifically taking issue with the return of the badge or of the court’s ruling to strike the language requiring the defendant to surrender it as part of the plea deal.

Mendes replied that the motion was to reconsider both, but that the issue at this particular hearing was strictly about returning the badge.

Gonsalves, 47, was arrested in October 2007 for impersonating an officer when he presented his Atooi badge at a county meeting related to a proposed development on burial grounds. He was out on bail at the time, having been arrested for trespassing, disorderly conduct and obstructing government operations during the August 2007 Hawai‘i Superferry protests at Nawiliwili Harbor.

He qualifies under state law as Native Hawaiian. Gonsalves is recognized by some as an ali‘i nui, or king, of the indigenous government “Atooi.” This kingdom of Native Hawaiian residents on island, who consider themselves to be its citizens, awarded Gonsalves with the badge for his work with other indigenous nations, including Rapanui, Tahiti and Aotearoa, which in turn recognize Atooi, a member state of the United Nations of Turtle Island in Polynesia.

Hempey argued that Gonsalves was not pretending to be a State of Hawai‘i law enforcement officer; he was identifying himself as a law enforcement officer in the Kingdom of Atooi, a legitimate and legal title that is not in violation of U.S. laws, court minutes show.

Motions filed by Hempey’s law firm emphasize the United Nations Declaration on the Rights of Indigenous People, which President Barack Obama signed in December 2010, making it the official policy of the United States. He also referenced the rights of indigenous Native Hawaiian people as granted by the state constitution, and the Native Hawaiian Recognition Act recently signed by Gov. Neil Abercrombie.

Hempey is arguing that law enforcement is part of the right to “maintain and strengthen distinct legal institutions” to encourage nation-building within an indigenous nation.

The earlier plea deal offered to reduce charges to petty misdemeanor obstructing and a $250 fine, dismissing the remaining charges. The prosecution stipulated that the surrender of the badge was part of the deal, and Watanabe ruled this to be in violation of the rights granted to Native Hawaiians.

Gonsalves was also arrested July 1, 2011, on three counts of second-degree theft, regarding a complaint dating back to 2008 when he allegedly removed rocks that were property of the Department of Hawaiian Homelands.

Gonsalves describes the land where the rocks were removed as “poison ‘aina,” noting that he was uncovering toxic waste that has never been cleaned up and presents a danger to anything growing in the area.

He contends the old charges and the manner in which he was arrested have something to do with the badge.

• Tom LaVenture, staff writer, can be reached at 245-3681 (ext. 224) or by emailing tlaventure@ thegardenisland.com.

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