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Religious Freedom & Expression on Trial in Klee Benally Sacred Mountain Defense Case – No Verdict After 3 Hour Trial

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Take action: www.indigenousaction.org, www.truesnow.org, www.protectthepeaks.org

For Immediate Release

Tuesday, June 12, 2012
By M. Begay, Contributor, Indigenous Action Media
info@indigenousaction.org
www.indigenousaction.org

Religious Freedom & Expression on Trial in Klee Benally Sacred Mountain Defense Case
No Verdict After 3 Hour Trial

FLAGSTAFF, AZ — Klee Benally, Dine’ (Navajo), was on trial today for a prayerful action taken in August, 2011 to protect the Holy San Francisco Peaks from desecration due to ski area expansion. During the 3 hour hearing, the state prosecutor presented witnesses from the U.S. Forest Service, Arizona Snowbowl & Coconino County Sheriff’s department who testified that Mr. Benally was “trespassing” and had committed “disorderly conduct” on the Holy Mountain.

In the packed courtroom, testimony and questions centered around whether or not the area where Snowbowl’s desecration of the Holy Peaks was clearly marked with “no trespassing signs” and whether or not Klee was “disorderly” in his actions.
“Religious freedom and the right to express opposition to desecration of the Holy San Francisco Peaks is what was on trial today.” stated Klee, “The struggle to protect Dooko’osliid (San Francisco Peaks) continues, we must defend our ways of life and the natural law. As long as our hearts beat with an understanding that our actions are for future generations and cultural survival, then this struggle is not over.”

Dozens of concerned community members walked to Flagstaff “Justice” Courthouse from City Hall where two community members initiated a hunger strike for the Peaks one week ago. The hunger strikers, Joseph Sanders & Jessica Beasley, have vowed not to eat until three requests are met, “The cancellation of the wastewater contract with Snowbowl, Snowbowl’s removal of the pipeline and remediation of areas damaged by their expansion,” and “The creation of an agreement with the city of Flagstaff that there will be no further destruction of the San Francisco Peaks by Arizona Snowbowl, or any others.”

Where's the orange cones with signs?

On August 13, 2011, after a Snowbowl excavator operator repeatedly disrupted a weekly prayer gathering, Klee chained himself to an excavator that was used for tearing into the earth six feet deep for pipeline trench intended for transporting 180 million gallons of contaminated wastewater for snowmaking on the Holy Peaks. The prayerful action lasted approximately 2 hours, when law enforcement agents offered Klee an option of being cited and released or going to jail. After consulting with Louise Benally, who was part of the prayer gathering, Klee agreed that his point was made and would release himself.

Matt Brown, of Brown & Little, P.L.C., who represented Klee during trial, argued that the area was not clearly marked as being “closed” and that the action was peaceful and respectfully conducted. Additionally, Mr. Brown argued that the prayerful action was an expression of constitutionally held rights.

Forest Service “law enforcement” agent Mark Camisa testified that he had been surveilling the prayer gathering for 30 minutes from a hidden area in the woods.

Due to time constraints Judge Howard Grodman did not make a ruling on the case but stated that he would either issue a written verdict on the charges or announce his decision in court on June 28, 2012.

Rudy Preston & local author Mary Sojourner were also arrested for standing in defense of the Sacred Mountain on August 13, 2011.

Mary expressed in a previous statement, “I took action not just for the Mountain, but for my friend, Klee Benally, who I saw chained to a monstrous extractor, the pipeline trenching machine that had been ripping into the mountain and the peaceful morning air as thirty of us prayed for the Mountain; and so that older women and men would see that one doesn’t have to be young to stand up for a place and community that you love.”

Mary accepted an offer of community service instead of going to trial. Rudy, who represented himself at his own 6 hour trial, was found guilty of trespassing and disorderly conduct charges resulting from actions on August 8 and 13, 2011.

Rudy was sentenced to 12 months unsupervised probation and 20 hours of community service. He was also ordered to pay $62.63 in “restitution” to Snowbowl for his actions.
“My eyes will never again close to this injustice. And my body will not perpetuate it.” expressed Rudy in a previous statement, “…we all love the mountain and you don’t need to wait for a ‘known organizer’ to tell you what to do next.”

Since June 16th, 2011, nearly 30 people have been arrested during protests or other actions addressing Snowbowl desecration and eco-cide on the Holy Peaks. Most have taken deals offered by state prosecutors which have resulted primarily in community service, with about 8 cases still pending.

“How can I be “trespassing” on this site that is so sacred to me? This is my church. It is the Forest Service and Snowbowl who are violating human rights and religious freedom by desecrating this holy Mountain…” said Klee in a previous statement, “Their actions are far beyond ‘disorderly’.”

In August 2011, The Havasupai Tribe, Klee Benally, and the International Indian Treaty Council, filed an Urgent Action / Early Warning Complaint with the United Nations (UN) CERD Committee, on the desecration of the Sacred San Francisco Peaks. The complaint addressed Arizona Snowbowl’s clear-cutting of 74 acres of rare alpine forest and the laying of 14.8 miles of a waste water pipeline in furtherance of a US Forest Service and City of Flagstaff supported project to spray artificial snow made of wastewater effluent on the Holy San Francisco Peaks.
The Committee on the Elimination of Racial Discrimination, known internationally as the CERD Committee is charged with monitoring compliance with the International Convention on the Elimination of all forms of Racial Discrimination (ICERD).
“The Forest Service, the City of Flagstaff, & the courts have proven that they do not understand or respect our spiritual ceremonies and practices and our spiritual relationship to the Earth,” said Klee, “We have no guaranteed protection for our religious freedom as Indigenous Peoples in the United States.”

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Background story: http://www.indigenousaction.org/direct-action-to-protect-holy-peaks-continues/

Photo credits:
Peaks Hunger Strikers.jpg – Klee Benally
Klee Benally Court.jpg – PDB
Drum Chained jpg – Ethan Sing

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3 Comments

  1. Christine Prat

    June 13, 2012 at 8:03 AM

Add your comments (racist, sexist, & trans/homophobic comments will not be published)

#mmiwgt2s

People Take the Streets in Occupied Flagstaff to “Honor & Avenge” #MMIWG2ST

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Brief report back filed by anonymous.


Occupied Kinłani, May 5, 2023 — Tonight a fierce crew held a vigil and rally then took to the streets of occupied Flagstaff on the national day of awareness for missing and murdered Indigenous women, girls, two-spirit, and trans relatives. Family members and friends of Arielisa Bryant & Nicole Joe spoke about the injustices they had faced at the hands of law enforcement. Others shared their stories with five families speaking out about their missing or murdered relatives. Speakers connected the desecration of sacred sites as violence against the land being violence against our bodies. After a moment of silence (which was turned into a moment of rage), the group headed through the crowded streets. Intersections were held. A round dance was done. Chants echoed, “No More Stolen Sisters!” “No Justice No Peace, Fuck the Police!” and “Who keeps us safe? We keep us safe!” while relatives of MMIWG2ST spoke. At one point the group stopped near where Vanessa Lee was found (2018) and created a memorial. After the action, the massive red dress banner that was carried through the streets was dropped.

This action came as U.S. Secretary of the Interior Secretary Deb Haaland prepares to hold a “Not Invisible Act Commission” hearing in Flagstaff on May 9th at a so far unannounced location with little community outreach. The commission is filled with cops, judges, and politicians who seek to further colonial policing and laws over Indigenous lands. Haaland is also complicit in allowing the Willow Project to proceed which furthers resource colonial violence that is directly linked to #MMIWG2ST.

A 2017 study from the Urban Indian Health Institute found that so-called Arizona has the third-highest number of #MMIWG2ST in the country.

That study reported a total of 506 known cases in 71 urban cities across the country and 54 cases were identified in Arizona.

In memory:

Ariel Bryant, found deceased 2019 outside of Kinłani.

Vanessa Lee, found deceased 2018 in the Rio De Flag downtown Kinłani.

Nicole Joe, deceased on christmas day 2017, her ex was ultimately found guilty of second degree murder.

Loreal Tsingine, shot in 2016 five times by Winslow police officer Austin Shipley.

And all those missing and murdered relatives!

As you rest in power, we will rage!

#mmiw#mmiwg2st #mmir #mmip

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#waterislife

ALERT: Imminent Uranium Mining Threat at Grand Canyon – Haul No!

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Underground blasting & above ground work has begun at Pinyon Plain/Canyon Mine, just miles from the Grand Canyon. 

Workers are readying to start mining uranium at the mine. According to the Forest Service, workers are blasting daily though no ore is being moved yet. Once Energy Fuels starts hauling out radioactive ore, they plan to haul 30 tons per day through Northern Arizona to the company’s processing mill 300 miles away. 

The Grand Canyon, sacred site Red Butte, precious water, and communities along the haul route are in danger! 

As all legal options have failed, we need you to join us to stand up and stop this nuclear catastrophe from permanently poisoning our communities!

Join our telegram channel to connect for actions and support: https://t.me/haulno

For more info & to donate for legal defense: www.haulno.com

Pinyon Plain/Canyon Mine Haul Route Facts:

* Total distance of 300 miles.

* 12 trucks with capacity to haul up to 30 tons of highly radioactive ore per day.

* Truck loads to be covered with thin tarps, the only shielding from uranium and only protection from environmental contamination.

* Proposed route will go through high population areas such as Valle, Williams, and Flagstaff; as well as through rural Navajo reservation communities including Cameron, Tuba City, and Kayenta; near the Hopi reservation, and finally arrive at Energy Fuel’s White Mesa Mill only three miles from the Ute Mountain Ute tribal community of White Mesa, Utah.

#haulno #stoppinyonplainmine

#nonukes

#dontnukethegrandcanyon

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Indigenous Hia Ced O’odham and Tohono O’odham Sacred Land & Water Protector, Amber Ortega, “Not Guilty” For Resistance to US/Mexico Border Wall Construction at Sacred Site

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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.

Case Background:

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.

Case Background:

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.

Spread the word or contact us for donation information:

www.facebook.com/AntiBorderCollective/

Instagram: @OodhamAntiBorder, @DefendOodhamJewed

www.oodhamantiborder.org, www.defendoodhamjewed.org

About:

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

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