Leader of Mount Rushmore protest faces new charges, up to 17 years in prison

Nick Tilsen, a 38-year-old from Porcupine, was originally charged with two felonies and three misdemeanors. He’s now facing a third felony and fourth misdemeanor.

“I’ve worked hard to make a better way for our people. These trumped-up charges aren’t just against me, they’re against our people,” Tilsen wrote on his Twitter account. “These charges are designed to derail our movements. But we stand on the right side of history and we know our ancestors stand with us.”

Tilsen’s original felony charges are second-degree robbery and simple assault against a law enforcement officer for allegedly stealing a shield from an Air National Guardsman and assaulting her.

The new complaint was signed July 6 but not publicly filed until August 14.

Tilsen is now charged with a second count of simple assault against a law enforcement officer for allegedly assaulting an investigator with the Pennington County Sheriff’s Office. This alleged assault was not described in the original police reports attached to Tilsen's case. 

Another new felony charge is grand theft for allegedly stealing the shield. That count is in the alternative, meaning Tilsen could only be convicted of the robbery or theft charge — not both — in relation to the shield.

Tilsen was originally charged with three misdemeanors: impeding a highway, unlawful assembly and disorderly conduct. He’s now also charged with obstructing a public officer.

A conviction on the robbery and all other charges would mean Tilsen could be sentenced to up to 17 years in prison. A conviction on the theft and all other charges means he faces up to nine years in prison.

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 — preventing ticket holders from reaching the event through that route — 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.

Preliminary hearing

Tilsen is scheduled for a preliminary hearing at 10 a.m. on Friday at the Pennington County Court.

A magistrate judge can find probable cause to continue misdemeanor charges by reading through police reports and listening to arguments from prosecutors. But probable cause for felonies must be established through witnesses testifying at a grand jury or preliminary hearing.

In the grand jury process, prosecutors present evidence during a closed-door hearing before a jury which decides if there’s evidence to indict the defendant. The defendant, defense lawyer, media and public are not allowed to attend the proceeding.

A preliminary hearing is a public hearing where a judge decides if there’s probable cause to continue the case. Prosecutors and defense lawyers can present and cross-examine witnesses.

A finding of probable cause means there’s some evidence — even if there’s also contradictory evidence or procedural problems — against a defendant, said Bruce Ellison, Tilsen’s defense lawyer.

“It’s a very, very limited matter,” he said. “It has nothing to do with guilt or innocence, it has to do with if there's even a minimal basis” to move the case forward.

Ellison said it’s “highly unusual” for Pennington County prosecutors to choose to hold a preliminary hearing rather than a grand jury.

“We wanted people to see what the evidence was” and for “people to have faith in what we’re doing,” State’s Attorney Mark Vargo said about his decision to hold the preliminary hearing.

Vargo said he and a deputy state’s attorney will question the two victims — Guardsman Maria Gonzalez and Investigator Cameron Ducheneaux — and other witnesses. Some video evidence will also be played.

Ellison said he will cross-examine the witnesses but won’t be calling any of his own. He said defense lawyers don’t usually call their own witnesses during a preliminary hearing because presenting contradicting evidence won’t make a difference as long as there's some evidence against the defendant.

NDN Collective has started a petition asking Vargo to drop the charges against Tilsen and the 19 other protesters arrested on July 3. The nonprofit is also encouraging supporters to contact Vargo by phone and email. The other protesters are charged with disorderly conduct, simple assault, blocking a highway and/or failure to vacate — all misdemeanors.

“The Black Hills are and will forever be the land of the Oceti Sakowin,” NDN Collective wrote. “The federal and state governments of South Dakota have no right to prosecute Indigenous Peoples for defending their own territory.”​

Photos: Protests near Mount Rushmore lead to arrests