Native Sun News: Marc Wisecarver up for hearing on probation

The following story was written and reported by Talli Nauman. All content © Native Sun News.

Marc Wisecarver RAPID CITY, SOUTH DAKOTA –– Human rights defenders are calling on the public to attend a local hearing Aug. 31 about the validity of special conditions South Dakota Senior U.S. District Judge Howard Battey placed on Pine Ridge Lakota ex-Marine Marc Wisecarver’s upcoming probation.

Wisecarver is due for release on Sept. 8 after a three-year prison term Battey imposed in a conviction for depredation of public property stemming from Wisecarver’s shooting of a radiator on a federal government vehicle that a BIA soil conservation officer drove onto the defendant’s family allotment northwest of Manderson.

Wisecarver appealed the charge, conviction, sentence and probationary conditions twice, prompting the U.S. Eighth Circuit Court to remand the case to Battey’s court where the hearing is scheduled.

“We are very concerned Judge Battey is going to try to send Marc back to prison,” his mother Charmaine White Face told the Native Sun News. “We are asking as many people as possible to be in the courtroom to show support for Marc, and also to bear witness to whatever Battey has planned.”

The registered non-profit Lakota Aid organization in the United Kingdom has circulated a petition for Wisecarver’s release and rights protection, while seeking funding to prepare a Supreme Court appeal alleging constitutional, civil and human rights abuses in the handling of the case.

“Marc is just one example of the terrible miscarriages of justice that go on in South Dakota against the Native American peoples,” states the preamble of the petition.

The case history provides testimony to the effect that 17-year-veteran BIA Soil Conservation Officer Duke Bourne, age 63, and Wisecarver, 39, were mutually intimidated and quarreled, leading to the latter’s rifle shot to the radiator during an unexpected encounter near Wisecarver’s homesite on the Pine Ridge Indian Reservation on April 29, 2008.

In response to the Circuit Court remand, Battey held a retrial with similar results to the first trial. Wisecarver again pled the outcome to the appeals court, and in June the three-judge panel in St. Paul, Minnesota accepted Battey’s defense, only requiring reconsideration in the District Court of the probationary conditions.

Battey’s 36-month sentence for Wisecarver was stiffer than the usual 21-month maximum recommended for the crime, the judge revealed in his defense arguments during the appeal. Meanwhile, the special conditions he imposed are those that would have been standard procedure in a probation officer’s toolkit with no intervention from a judge, Wisecarver argued. Wisecarver is a former probation officer himself.

The special conditions state that: Wisecarver is barred from establishments with a primary purpose of alcohol sales; a probation officer can require blood, breath, or urine samples at any time; and the officer can search Wisecarver or his premises at any time without a warrant.

In remanding the conditions for further consideration, the appeals court stated, “On remand, the parties may seek to present evidence relating to the special conditions, and the court should make particularized findings about any special condition that is imposed.”

White Face noted that Wisecarver, at age 39, has no prior police or court record. “Marc doesn’t drink or use illegal drugs,” she said. The conditions set a precedent for abridging civil liberties, she claimed. “Judge Battey’s racist stereotypes appeared in the three special conditions he imposed on Marc,” she added.

In his defense, Battey argued: “Given this dangerous combination of Wisecarver’s volatility with a weapon, the conditions not only reasonably restrict alcohol consumption but also allow for warrantless search to ensure Wisecarver does not possess a weapon.”

After Wisecarver failed in an attempt to have Battey recused, White Face filed a complaint with the Judicial Council of the Eighth Circuit, over the judge’s mental competency.

Court rules allow: “Any person alleging that a judge of the United States has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts, or that such officer cannot discharge all the duties of the office because of physical or mental disability, may file a complaint with the clerk of the court of appeals for that circuit or applicable national court.”

In her complaint, White Face cited the judge as stating during proceedings that he wanted to frame Wisecarver as “an example” to deter violence on the reservation.

Battey, who was a Spink County prosecutor in Redfield until former U.S. President Ronald Reagan appointed him to the federal court, has a record of expressing opinions on Indian reservation law concerns that goes beyond the realm of courtroom decisions.

In her complaint, White Face stated: “Because of his behavior in the courtroom, which I witnessed, Judge Battey has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts, and is unable to discharge all the duties of office by reason of mental disability."

“The judge’s behavior is clearly questionable regarding his mental competency. As he is 84 years old, it is possible his age has led to physical degeneration of his mental capabilities. Furthermore, his behavior is making a mockery of the federal judicial system, and causing a lack of faith in the fairness of the federal court system,” she said.

Battey, who was born in Aberdeen, was the city attorney of Redfield from 1956 to 1963. He was the state’s attorney of Spink County from 1959 to 1965 and from 1981 to 1985. His appointment to the U.S. District Court filled a seat vacated when Andrew Bogue assumed senior status.

The Aug. 31 hearing was set to take place at 9 a.m. in Room 236 of the U.S. Courthouse at 515 Ninth Street in Rapid City.

(Talli Nauman is the Health and Environment Editor for Native Sun News. Contact her at

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