Groundbreaking court ruling in favor of Indigenous religious freedom argument sets important legal precedent for Indigenous land and water protectors
On the same day in Ajo, Arizona two other land protectors facing charges for associated action against border militarization on O’odham homelands who were attacked with pepper spray and rubber bullets on Indigenous People’s Day 2020 received fines and community service.
Tucson, AZ — On January 19, 2022, Amber Ortega, a Hia Ced O’odham and Tohono O’odham land and water protector and O’odham Anti Border Collective member, received a not guilty verdict for her actions to halt border wall construction at A’al Vappia/Quitobaquito spring, a sacred site for Hia Ced O’odham and Tohono O’odham peoples, on September 9, 2020.
A’al Vappia/Quitobaquito spring, one of the only desert water sources for many endangered species within a 40-mile radius, is located in the Organ Pipe Cactus National Monument right on the US and Mexican border. As one of the land defenders occupied a bulldozer they stated, “You do not have permission to be here, this is O’odham Land. This is a sacred area.” Border wall construction severely drained the scarce ground-water in the area, drastically reduced the spring, and prevented animals from the Mexico side from accessing the only water source in 40-miles. This is a sacred area of the O’odham since time immemorial and a location where Ms. Ortega and other Hia Ced O’odham community members have nearby burial grounds and direct family connections. Amber Ortega and Nellie Jo David, both Hia Ced O’odham and Tohono O’odham women and members of the O’odham Anti Border Collective, were spiritually called to use their bodies to block border wall construction at the Spring by their religious beliefs under O’odham Him:dag (religion, tradition, and culture) to protect their sacred sites and way of culture.
Groundbreaking Impact of the Verdict:
Ortega was represented by attorney Amy Knight, who also successfully represented No More Deaths activist Scott Warren’s similar use of religious freedom for humanitarian work with migrants crossing the border in O’odham homelands. Amber Ortega and Nellie Jo David maintained during their court proceedings that they were acting as required by O’odham Him:dag (religion, tradition, and culture) when they took direct action to protect the sacred site of A’al Vappia/Quitobaquito Springs in Hia Ced O’odham jewed (O’odham homelands) near Ajo, Arizona from destruction by the racist border wall construction. They prayed for the land and water, sang spiritual songs, and put their bodies before the machines of death.
The two argued that the Religious Freedom Restoration Act protected their actions from criminalization, an argument that has been more successful for Western religions but has not been accepted often by U.S. courts for the religions of Indigenous peoples which are place-based and require protection and conservation of sacred sites. The RFRA has been criticized for its origins as a tool created for the benefit of conservative Christian right and is often questioned if its application is to the detriment of other religious communities. This ruling is a victory for Indigenous peoples that opens up ground-breaking legal defense possibilities for other Indigenous land and water protectors.
The RFRA can be used as a defense in both civil and criminal cases, but has most often been used by Indigenous peoples in civil cases, where the law has been stripped of its teeth and is rarely allowed as a defense by Indigenous peoples, such as in case of Navajo Nation vs. USFS. Ms. David took a plea deal in June 2021 due to stress from the unusual harassment the two O’odham women suffered from the court system. But in Ms. Ortega’s case, attorney Amy Knight was able to successfully argue that there is case law precedent to apply the RFRA to criminal cases, which shifts the burden of proof from the defendant to the government. U.S. Magistrate Judge Leslie A. Bowman agreed.
Judge Bowman ruled that the federal government had imposed a “substantial burden” on Ortega’s exercise of her religious faith by closing access to the border road that runs just south of Quitobaquito Springs — an area that remains central to the spiritual practices of the Hia C-ed O’odham. This reversed Bowman’s previous decision on November 18, 2021 when she ruled that the RFRA could not be used as a defense and when she denied consideration of expert witness testimony from elder Lorraine Eiler, a Hia Ced and Tohono O’odham cultural leader who is also a former member of the Tohono O’odham Nation Legislative Council. In the November 18 ruling Judge Bowman had dismissed Eiler’s testimony and ruled Ortega could not prove the government had harmed her free exercise of religion.
Knight was brought in as a new attorney for Ortega after the November 18, 2021 decision and filed a motion to reconsider the ruling and presented new evidence for the RFRA argument at the January 19th hearing. Bowman’s new ruling finds that, “In light of that new evidence, the prosecution of Ortega did impose a substantial burden on the exercise of her religion,” according to the judge. Bowman also ruled that the government had no compelling interest to arrest and prosecute Ortega and that the government failed to use “the least restrictive means” to keep Ortega from halting construction. Based on this, Ortega was ruled not guilty for the charges brought against her.
This victory is not just for Amber Ortega, but is a larger victory for all O’odham peoples and O’odham Him:dag. The victory is especially important for Hia Ced O’odham people who are not currently federally recognized by the U.S. But the ruling is also a major and historical victory for Indigenous religious freedom and Indigenous land and water protectors. Bowman’s decision could provide new defense possibilities for Indigenous land and water protectors who take direct action to protect their sacred sites and spiritual connection to historical places.
“This means so much more than people who are around, it means something for the future,” Ortega said. “This means that those who were shut out of the federal court building in history,” she said, “are still alive, we’re active and fighters. We have a voice, we have a family, we have a tribe.”
“It’s just the beginning of our people continuing to come together on matters we’ve been left out from,” Ortega said.
On September 9, 2020 Ortega and David took direct action and held a prayer ceremony to halt construction of the border wall threatening A’al Vappia/Quitobaquito Springs in Hia- Ced O’odham jeved (O’odham homelands) near Ajo, Arizona. They were arrested and were charged with two petty misdemeanors, “Interfering with federal function” and “violation of a closure order.” Normally these low level charges are resolved with a ticket, not arrest. But in a rare move, the government arrested the O’odham land protectors, without notifying Tohono O’odham Nation. Ortega and David, despite being U.S. citizens and enrolled members of Tohono O’odham Nation, were taken to Core Civic’s for-profit migrant prison in Florence, Arizona – at the time a raging Covid19 hotspot – where they were humiliated, strip searched, denied access to phone calls, attorneys, coronavirus PPE such as masks, and access to basic personal hygiene. They were also forced to endure freezing temperatures, hostility from guards, and sleep deprivation. They were then subject to over a year of government harassment including constant drug testing, threats of re-arrest or institutionalization, and severe restrictions on travel including not being allowed to attend some Indigenous spiritual ceremonies. Due to this harassment David accepted a plea deal in June 2021 that included probation and a fine, however Ortega continued to seek justice for the extreme and unusual treatment the two suffered for holding a spiritual ceremony to protect their sacred site from destruction by the racist border wall.
Despite yesterday’s victorious ruling, we still denounce the settler colonial government for caging Native American sacred site protectors in for-profit immigrant prisons just as we denounce the profiting, incarceration, and torture of migrant peoples crossing O’odham jewed (O’odham homelands). Our Indigenous struggles are interconnected with those of migrants and refugees through resistance to racism, colonialism, and imperialism. We denounce colonial violence against Indigenous women. We denounce the military occupation and border wall destruction of sacred land and water.
Land Protectors Violently Attacked by the Government on Indigenous Peoples’ Day 2020 Receive Verdicts in Ajo, AZ:
Ajo, Arizona – The victory for Ms. Ortega’s case, while a critical cause for celebration, was not free of reminders of state violence and repression against Indigenous peoples and land and water protectors. In Ajo, Arizona on the same date of Ms. Ortega’s ruling two other land and water protectors received fines and community service for their participation in a October 12, 2020 spiritual ceremony and effort to educate the public on the impacts of border violence on O’odham peoples in which they were violently attacked by state forces.
The two individuals, Riley Conklin and David Manual (Tohono O’odham), maintained their innocence but were charged even though ten other people arrested that day had their charges dropped. Conklin and Manual received injuries from being shot at close range by rubber bullets at the action and were arrested by Border Patrol and transported in Border Patrol vehicles to Pima County Jail where they were held without contact to attorneys, family, or in Manual’s case the Tohono O’odham Nation for nearly a day.
We denounce the ongoing state repression against victims of state violence (rubber bullet attacks) against Indigenous peoples and their allies on Indigenous Peoples’ Day. We find the court’s decision to prosecute the two people most injured in the state’s attack on the Indigenous Peoples’ Day ceremony racist, offensive, and highly disturbing.
On October 12, 2020 as the Governor of Arizona proclaimed Indigenous Peoples’ Day, a group of about thirty O’odham land and water protectors and their allies held a spiritual ceremony at a border patrol checkpoint on Highway 85 in unceded O’odham homelands to pray for sacred sites and graves demolished by the racist border wall. Border Patrol, Arizona State Troopers, and Department of Public Safety attacked them with tear gas and rubber bullets, hitting at least one O’odham in prayer in the chest with bullets and arresting twelve people. Ten of people had their charges eventually dropped but the two most injured people were prosecuted by the state and sentenced to fines and community service.
The prayer ceremony was attended by O’odham families from all O’odham nations (Hia Ced O’odham, Tohono O’odham, and Akimel O’odham) including children. The ceremony marked Indigenous Peoples’ Day as O’odham continued to face violence from border militarization, including extensive abuses from border patrol against O’odham communities. O’odham sang traditional songs, prayed, and attempted to discuss the Freedom Of Religion Act (1978), that decriminalized Native American religions and opened the path towards the protection of sacred spiritual sites, with members of Border Patrol and Arizona State Troopers and Department of Public Safety present to educate them on the context of Indigenous religious protections.
Border Patrol, State Troopers, and Arizona Department of Public Safety responded with violence to shut down the Indigenous prayer ceremony. Border Patrol, State Troopers, and Arizona Department of Public Safety ordered children and people with vulnerable health who were observing the ceremony from inside their vehicles out of their vehicles (due to Covid19) then tear gassed them. Border Patrol, State Troopers, and Arizona Department of Public Safety then grabbed children who had been in vehicles and abducted them from their parents – stealing children from Indigenous parents for practicing their religion is a clear violation of the Freedom of Religion Act and the Indian Child Welfare Act.
After tear gassing the ceremony and snatching children from their parents Border Patrol, State Troopers, and Arizona Department of Public Safety advanced on the crowd at the ceremony shooting O’odham peoples in prayer with rubber bullets, hitting at least one O’odham man in the chest.
“It’s obscene and offensive to us that local and state governments move to celebrate Indigenous Peoples’ Day while the federal government blows up our sacred sites, steals our kids, militarily occupies our communities, and shoots at Native Americans praying to protect our land and ancestors from desecration. They want to appropriate our cultures but they don’t want us to practice our religions or protect our lands,” said one O’odham woman present at the action.
TEAR DOWN THE BORDER WALL- RESTORE QUITOBAQUITO SPRINGS
O’odham peoples and environmentalists demand that the border wall impacting Monument Hill and Quitobaquito Springs be removed and the land be restored to its original condition and native habitat. The springs, one of the few water sources in the Sonoran Desert, are located in what settlers call, Organ Pipe Cactus National Monument, on the so-called US/Mexico border. Quitobaquito has provided water to the O’odham people and all forms of life since time immemorial. Water levels in Quitobaquito have dropped 30 percent since 2020 as contractors withdrew large amounts of groundwater to mix concrete for the wall and flatten dirt roads. 84,000 gallons of groundwater per day was used to construct the border wall segments. For every mile of wall 411,840 gallons of extracted water was utilized. The wall construction is a continuation of irreversible cultural and environmental damage seen in the destruction of sacred sites, dividing O’odham in both the so-called US and Mexico, and violently disrupting the desert ecosystem. Border wall construction man camps were a major source of spreading Covid19 to vulnerable O’odham communities during the pandemic. We hold the proponents of racist wall construction responsible for the deaths of O’odham peoples from Covid19 contracted by the disease spread caused by border wall construction man camps. No more death of Indigenous peoples, no more racist walls on Indigenous lands.
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Instagram: @OodhamAntiBorder, @DefendOodhamJewed
O’odham Anti Border Collective is a grassroots collective of Akimel O’odham, Tohono O’odham, and Hia Ced O’odham tribal members and descendants committed to the unification of all O’odham peoples, regeneration of O’odham himdag (traditions, spirituality, language, and culture), and the protection of O’odham jewed (homelands) through the dismantling of colonial borders.
Defend O’odham Jewed* is an O’odham u’uwi (women) led grassroots movement and spiritual direct action campaign to protect the sacred O’odham homelands from desecration and violence.
*jewed (sometimes spelled jeved as well) means homelands in the O’odham language