The following story was written and reported by Evelyn Red Lodge. All content © Native Sun News.

RAPID CITY, SOUTH DAKOTA -- An Oglala Lakota man who was tried twice for the same federal offenses was back in Federal District Court for a hearing last Wednesday.

Marc Sean Wisecarver appeared before Western District Judge Richard Battey after his two attempts to appeal a conviction of depredation of government property. Wisecarver has served his ultimate sentence and is scheduled for release on Sept. 8.

Court documents said an altercation between Wisecarver and Bureau of Indian Affairs employee, Duke Borne, occurred in 2008 at Wisecarver’s residence on the Pine Ridge Reservation.

Wisecarver claimed Borne drove onto his property in a truck driving wildly and ultimately turning the vehicle on Wisecarver. He indicated he did not know the driver or the truck. Fearing for his life, Wisecarver used a firearm to shoot down into the truck’s grill and into the ground.

Bourne testified he was on the property to assess the condition of the fence. Once he saw the horses on the property he drove slowly so as to observe the brands. Documents also say Borne was employed as a soil conservationist and that the BIA sent Borne to assess the land to calculate a suitable rental price. Documents said the U.S. Government plates were clearly visible to Wisecarver as he shot the truck.

Wisecarver was originally indicted in tribal court in 2008. The indictment cited depredation of government property. However, a superseding federal indictment was issued adding an assault of a government official charge, according to Wiscarver’s mother Charmaine White Face.

Conversely, the most recent appeal documents claim the original indictment was for assault of a government official. White Face claims this is important, because the tribal court could have had jurisdiction over the depredation charge.

In January of 2009, he was acquitted by a federal jury of the assault charge due to self-defense, yet found guilty of the depredation charge.

Wisecarver then appealed the depredation conviction in the Eighth Circuit Court of Appeals in Minneapolis. He argued that if he was innocent of the assault, he could not possibly be guilty of depredation.

The Eighth Circuit Court then reversed the federal court’s judgment and remanded the case to vacate the conviction and sentence in early 2010. The Eighth Circuit Court cited erroneous jury instructions given by Judge Richard H. Battey to the jury.

However, Battey ignored the order for vacatur and retried Wisecarver. The second jury found Wiscarver guilty again for the depredation charge.

Wisecarver entered a second appeal to the Eight Circuit Court who affirmed the second jury’s conviction and sentence of 36 months imprisonment. However, Wisecarver’s third argument concerned three of the special conditions imposed at sentencing by Battey involving his supervised release once his sentence was served.

Those conditions were basically: No use of alcohol or other intoxicants, submission to testing of intoxicants by his probation officer, and submission to a warrantless search of his person, residence, place of business, or vehicle at the discretion of his probation officer.

At the hearing last Wednesday, the judge and attorneys agreed that the first two special conditions should be vacated citing no history of drug or alcohol abuse by Wisecarver.

However, the warrantless search condition was considered by the court with arguments from both attorneys.

Prosecuting United States Attorney, Ted McBride, the court, and Public Defender, Gary Colbath, Jr. finally agreed to the warrantless search condition with the addition of text suggested by the defense. The added text was “… with reasonable suspicion of criminal activity” so as not to violate the rights of the defendant.

White Face said they are awaiting the signed order from the judge which was not available at press-time.

In the meantime, White Face pointed out some conflicting information in the case. In a press release she states, “Mr. Bourne was not a surveyor but a soil conservation technician.

Brands are checked by the state brand inspector, not soil conservation technicians. Furthermore, the land could not be leased as the land in question was in probate from Aug. 8, 2004 until May 27, 2010, and is in undivided shares.

According to Realty Law which is used by the Department of the Interior on the Pine Ridge Reservation, there is no majority land owner. Therefore, when land is in probate, no leases can be considered until after the probate is ended and all owners agree to the lease.”

White Face said, “Duke Bourne assaulted Marc Wisecarver while trespassing. Duke Bourne has never been charged with trespass or assault with intent to commit murder. Marc was acquitted by a jury of assaulting a federal official on Jan. 29, 2009. However, Marc has been in prison since that acquittal, under the direction of Judge Richard H. Battey, for stopping the weapon that was used against him. The weapon was a government pickup truck. All of this information was given to the Federal Court by Marc Wisecarver or his family.”

(Contact Evelyn Red Lodge at welakota@yahoo.com)

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