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Tilsen case heading to trial after judge finds probable cause
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Tilsen case heading to trial after judge finds probable cause

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A leader of the July 3 protest near Mount Rushmore says he’s taking his case to trial after a judge found probable cause for his felony charges on Friday.

"We're going to trial, we're not taking any plea deals, these charges are all unfounded," Nick Tilsen said after his preliminary hearing at the Pennington County Court. 

Magistrate Judge Todd Hyronimus said he found probable cause and the case would move forward after he watched police body camera footage and heard from four witnesses. 

Evidence included a video that showed Tilsen taking a shield from a Guardsman and testimony from two Pennington County sheriff's deputies who admitted the National Guard was called in for a disruptive but non-violent protest.

Tilsen is charged with second-degree robbery and grand theft in the alternative, meaning Tilsen could only be convicted of one — not both — of those charges in relation to the shield.

He’s also charged with two counts of simple assault against law enforcement. Tilsen is not accused of physically assaulting the officials but attempting “by physical menace or credible threat” to put them “in fear of imminent body harm, with or without the actual ability to harm” them.

Pennington County State’s Attorney Mark Vargo said he recently dropped a misdemeanor count so Tilsen is now charged with three misdemeanors: impeding a highway, unlawful assembly and disorderly conduct.

A conviction on the robbery and all other charges would mean Tilsen could be sentenced to up to 16 years in prison. A conviction on the theft and all other charges means he faces up to eight years in prison.

Hyronimus said there is a “low burden” for finding probable cause and that a jury should decide if Tilsen is guilty of the charges. He did not set a time for arraignment, which is when Tilsen will enter pleas on the felony counts. He’s already pleaded not guilty to the misdemeanors.

Tilsen's charges stem from the July 3 Indigenous-led civil disobedience action near Mount Rushmore where President Donald Trump spoke at an Independence Day fireworks celebration. About 150 demonstrators used vans and their bodies to block a checkpoint in order to protest the president and monument while calling for the Black Hills to be returned to the Lakota people.

Tilsen, a member of the Oglala Sioux Tribe and CEO of the Rapid City-based NDN Collective, was one of about 15 people who remained in the street knowing they would be arrested after a warning to vacate.

Tilsen, his family and supporters met for a prayer at NDN Collective — a nonprofit dedicated to building Indigenous power — before walking over to the courthouse.

Multiple deputies met the group of about 25 people outside the courthouse to explain that the court set up an overflow room since not everyone would fit in the main courtroom.

Like usual, people had to walk through a metal detector and put their bags through a scanning device. But deputies also searched people’s bags by hand. A deputy said they were given instructions to take this extra step.

Eighteen people — including two federal prosecutors who would not comment on why they were there — sat in the courtroom while others watched a live video feed of the hearing in the overflow room.

Tilsen sat next to his two defense lawyers: local attorney Bruce Ellison and Brendan Johnson, a former U.S. Attorney for South Dakota. Johnson was one of the lawyers who represented Tilsen and others in their successful 2019 lawsuit against the “riot-boosting” bill.

Vargo and Deputy State’s Attorney Kelsey Weber sat on the prosecution side.

The hearing 

Cameron Ducheneaux, an investigator with the sheriff’s office, said he was monitoring traffic near the Iron Mountain Road checkpoint on July 3. At 1:26 p.m., he said, he saw two white vans try to cut in line by driving along the side of Highway 244.

Ducheneaux’s body camera footage showed him approach one of the vans and tell Tilsen, the driver, that he needs to wait in line like everyone else. Tilsen explained that he was trying to reach the free speech zone on the side of the road that the sheriff's office designated for the protest.

Ducheneaux testified that Tilsen drove toward him so he put his hand out, touched the front of the van, and then moved off to the side to a safer spot to continue the conversation. 

“I thought I was going to be hit by the van,” he tried to assault me, Ducheneaux said.

The video was played only once and it was difficult to tell exactly what happened. But the van did not accelerate fast or move far forward, and Ducheneaux appeared calm during the interaction.

Ducheneaux told Johnson the car was moving less than 10 miles per hour. He said he didn’t arrest Tilsen right then but suggested an assault charge be brought when he wrote up his report three or four days later.

Maria Gonzalez, who’s served 18 years with the Air National Guard in Sioux Falls, said her security forces squadron was notified July 1 that Gov. Kristi Noem was putting them on standby near Keystone for the July 3 events.

She said the squadron — which has about 30 other members — were asked to arrive at the protest site after demonstrators parked three white vans across the road, preventing ticket holders from reaching the fireworks event through the Iron Mountain Road checkpoint. 

Gonzalez said the group formed a line and walked toward the protesters with shields, and the goal was to move the protesters behind the vans so the vehicles could be towed away.

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She said some protesters were calm; others yelled at them; and some made threats, hit sticks against their shields, and used makeshift shields to push against the Guardsmen’s shields. Gonzalez said some counter-protesters used racist slurs and held Confederate flags.

Body camera footage from a deputy — who was standing behind Gonzalez at this time — shows Tilsen quickly lunge toward Gonzalez, grab her shield and pull it away from her. He's then seen holding the shield while standing in front of the row of Guardsmen.

Gonzalez said Tilsen told her he would use the shield the same way the Guardsmen were using them against the protesters. A deputy described a similar statement in a police report.

“I thought I was going to go into the crowd of protesters” which made me afraid since some were being aggressive, Gonzalez said. “I was scared.”

Gonzalez said she received a bruise from Tilsen ripping the shield away, which attaches to her hand with a bar and velcro. She said the Guard didn't take photos of the bruise or interview her about the incident. She said she was only interviewed by a deputy, not the FBI. 

Deputy Jake Tweeten, who was standing behind Gonzalez, also described how Tilsen took the shield from her. Deputy Shawn Stalder testified about seeing the van barricade go into place.

Stalder’s body camera footage showed Tilsen announcing that “we decided to expand” the free speech zone since the Black Hills belong to the Lakota people. “We have blocked this road,” Tilsen said.

Tweeten’s footage showed deputies using a loud speaker to twice tell the protesters that they were an unlawful assembly and would be arrested if they didn’t disperse.

Both Tweeten and Stalder told the defense lawyers that they witnessed no violence or threats from protesters before the Guard arrived, and the only law they were breaking at that point was the misdemeanor of impeding a highway. They said deputies did not try to arrest the protesters themselves. 

“I do not recall why the National Guard was requested,” Tweeten said while Stalder said he believes he and fellow deputies could have safely arrested the protesters.

“We did not have full control of the situation, and we needed the additional resources to take control of the situation before we could start making arrests” in a safe way, Thom previously told the Journal when asked why the Guard was needed for non-violent protesters.

The defense did not call any witnesses.

Vargo said in his closing statements that Tilsen and the other protesters were blocking fireworks attendees from their right to assemble and law enforcement was “required to make a path” for them to get through. 

“We can’t take sides in the expression of free speech,” Vargo said.

He said if a right-wing or racist group tried to block Tilsen and his supporters during their walk to the courthouse, that law enforcement would also be required to clear the way so they could get through. 

Reflections, petition delivery 

“This was a situation that we don’t believe needed to escalate in the manner in which it did,” Johnson said after the hearing when asked about his questions to the deputies about the peaceful nature of the protest before the Guard arrived. “We’re going to want a jury to see the entire picture here, and that is what we will be emphasizing.”

“There was a group of other protesters there that was behaving inappropriately, including behaving inappropriately toward law enforcement,” he said in reference to the counter-protesters.

Tilsen said white supremacy and colonialism — the systems being protested on July 3 — are the same forces behind his court case.

"The legal and financial system in this country that was created to steal our land in the first place, it's the same exact system that is over-prosecuting Indigenous people, and black people today," he said.

He pointed to a Vera Institute study that found Native Americans were jailed at more than 10 times the rate of white South Dakotans in 2015. 

Tilsen said his goal is to end white supremacy and colonialism, return land to Indigenous people, and "one day make sure we have court system in this country, a community safety system in this country that's actually a reflection of our values and how to treat people with dignity and respect."

Tilsen and his supporters later walked over to Vargo's office where Tilsen's father delivered a petition with nearly 15,000 signatures asking Vargo to drop the charges against his son and the 20 other protesters arrested on July 3. 

Mark Tilsen told Vargo that his son is a father of four who created the Thunder Valley CDC and has worked on an array of social justice causes. He said the young people who were arrested are "community builders" and "land defenders" that the community should be supporting. 

"For our government to spend money to try to imprison community leaders like this, it's a real crime," Mark Tilsen told Vargo. "The outrage that will come forward in the community and the division this is going to create is not going to solve anything." 

Vargo said his policy is not to discuss the facts of ongoing cases so he can't explain his thinking behind the charges. 

"But I will certainly take this seriously, and I will review both these petitions and other outreach that we've received," he said. 

The two shook hands before Vargo and the group parted ways. 

— Contact Arielle Zionts at arielle.zionts@rapidcityjournal.com

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