One year following NDN Collective President/CEO Nick Tilsen's arrest during a protest near Keystone, his attorneys filed court documents Friday requesting dismissal of all charges against him.
Three motions to dismiss were filed in Pennington County Court, through Tilsen’s attorneys, Brendan Johnson and Bruce Ellison. According to court documents, one of the motions claims prosecutorial misconduct and two claim constitutional violations — one alleging the right to a speedy trial was violated and the other alleges Tilsen’s First Amendment rights were violated.
At a Friday afternoon press conference outside the Pennington County Courthouse, Tilsen said his case has been politically and racially motivated from the beginning.
“The prosecutor has abused their position of power and privilege to try to silence myself. These are all grounds for dismissal,” Tilsen said. “Here we are, another lie made to our people by another white man in power. And we’re tired of that.”
Tilsen was arrested July 3, 2020 along with other protesters during former President Donald Trump’s Fourth of July visit to Mount Rushmore. He initially faced 17 years in prison, but in March he accepted an offer to participate in a diversion program, and if he remained on good behavior for a year following the completion of the diversion contract, his record would be sealed and expunged.
The charges against all the other protesters were dropped as part of the agreement, and those charges have not been refiled.
However, after Tilsen spoke to the media on March 22 about the diversion agreement, Tilsen said Friday the Pennington County State's Attorney’s Office reneged their position and moved to continue with the prosecution.
The Journal left messages Friday afternoon for Pennington County State's Attorney Mark Vargo seeking confirmation that his office was continuing with the court case against Tilsen.
According to Tilsen, Vargo told him he must record two video apologies to be publicly broadcast, write an open apology to all law enforcement officers, and write an apology letter to Pennington County Sheriff Kevin Thom. Tilsen said he offered to have a conversation with the state's attorney's office and the sheriff about the matter, but he did not hear back until three months later when the state's attorney's office sent a June 28 email that the court proceedings would restart.
“None of those things were part of the original agreement that [Vargo] agreed to, that he brought to us. Yet after that happened, I extended my hand still and said, ‘Let’s meet. Let’s resolve this matter,’ and up until two days ago, I heard nothing,” Tilsen said.
Tilsen said he had already started the work as part of his diversion program by volunteering for Wambli Ska to help develop cultural programs for at-risk youth and building a new teen center. The center opened June 20, and the motion submitted to court Friday noted that Vargo was in attendance for the grand opening.
After receiving notice that there would be a date set for trial, Tilsen said he went to his lawyers.
“I’m tired of this. Every Native person is tired of this. Everyone in our community has a story like this,” he said.
“The only way to have justice in this particular case is to drop all charges, because if you don’t then you’re letting that prosecutor, who says he’s a friend of the Native community… violate his own laws. If we don’t stand up and get these charges dismissed, it means that they can continue doing that to all of us, not just me, everybody in [the Indigenous] community.”
In the court documents filed Friday, Tilsen claims his remarks to the media following the agreement were protected by the First Amendment and were valid and legal. The documents claim Vargo's decision to reinstate Tilsen’s charges were directly connected to his protected speech and were reinstated as punishment for it.
Tilsen's attorneys also claim the delay in executing the agreement and then reinstating the charges violated Tilsen's right to a speedy trial.
The motion contends that the new demands effectively force Tilsen into silence on issues he believes in, which he has a constitutional right to express, court documents show.
“Mr. Tilsen would not be able to express his beliefs, speak to the press about the Land Back movement, or participate in protests without fear that he would be arrested again or that the [Pennington County State's Attorney's Office] would revoke his diversion agreement again," the motion reads. "That fear is a quintessential example of state action chilling the exercise of First Amendment rights.
“The PCAO’s attempt to frame its opposition to Mr. Tilsen’s political views as a concern over acceptance of responsibility is a transparent effort to use the weight of government and the weapon of criminal prosecution to chill Mr. Tilsen’s political speech,” it continues.
The case’s resurrection prompted the NDN Collective to schedule a protest march at 5:30 p.m. Sunday. The march will begin in Halley Park and move to the Pennington County Courthouse and jail, where there will be speakers.
“We have to remind folks that this is what happens to Indigenous people who speak up," Tilsen said Friday. "This is what happens to us… We’ve got to be proud of being Lakota, proud of being Indian, no matter what we’re up against."