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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CAMP ADVISORY

JANUARY 13, 2022

Newe’neen So’ko’pa Camp
Winnemucca Indian Colony
Winnemucca, NV

BREAKING: Man Threatens Elders at Winnemucca Community Resistance Camp 

Note: This is a breaking story that is unfolding now. Approved camp media available through camp IG account: @neweneensokopa. Media requests: AutonomousABQ@protonmail.com

WINNEMUCCA, NV – On Monday, January 10th, 2022, an unknown man entered the Winnemucca Indian Colony located in occupied Northwestern Nevada and made threats to harm elders and guests.

Conflict has been escalating throughout this small Indigenous community where elder’s homes have been under threat of being bulldozed by private contract workers hired by self-appointed “chairwoman” Judy Rojo who resides out of state and is not recognized by residents of the colony

A solidarity occupation camp was established in early November, 2021 when a call for help was posted to social media by resident elders. Done as a last ditch effort to protect their homes from demolition as Rojo and her Goons attempted illegal forced evictions. 4 homes in the community were bulldozed with little to no notice before the construction crews were stopped with the help of Indigenous land defenders who heard the elders pleas and immediately responded to help. This was later backed up by a temporary court order preventing Rojo and her crew from entering the colony, which has since been lifted leaving the community vulnerable once again.

Ongoing assistance is requested, please see the action notes at the bottom of this article.

Many outsiders rushed to the community to offer support and most have been respectful people with genuine hearts. Unfortunately, this hasn’t been our experience with the American Indian Movement Northern NV chapter (AIMNNV) and we will take a moment to share about this now.

In early December 2021 AIMNNV began making visits to the colony. During their visits there was ongoing conflict due to disrespectful, misogynistic, and abusive behaviors they displayed. They badgered elders instead of asking how they can help and honoring choices they have made. They have been disrespectful to the women and femmes and abusive to our guests, allies, and supporters. They have shown ignorance and violence towards our queer, two-spririt, non-binary, and trans relatives. They have taken from donations made to the community and attempted to pad the pockets of their friends and associates. They have promoted our struggles for their own benefit on social media. They have attempted to speak for us without being invited to do so, we can speak for ourselves.They have worked to silence our people and have attempted to recruit others to assist in this violence by creating false narratives.

December 23rd, 2021 an AIM flag that was flying over the sacred fire was cut down by a Shoshone-Paiute organizer. As she has been involved in assisting camp work since early November 2021, she had been made aware that AIM had been violating camp agreements and denying others the right to speak, saying they weren’t Native, or weren’t Shoshone, or weren’t from the colony – all of these were excuses used to dismiss valid concerns. As a Newe-Numa person she recognized her responsibility to speak up where others had been silenced. After many other attempts had been made to hold open and honest dialogue in a safe space and with the guidance of elders and input from all residents and guests of the community were denied or not conducted in good faith – she took it upon herself to cut the AIM flag down and insist that our Newe identities not be exploited and used to deny others their right to speak up for themselves. She did not anticipate the response she got; though she did return the flag undamaged with the simple request for said meeting – a group of hostile adult men surrounded her, threatened her safety, and forced her to leave the area.

Things quickly went downhill from there, as these individuals became more brazen with their disrespect and pushed to seize control until there were no longer any protocols being respected. Things came to a head on January 7th, 2022 when the resident elders took back their community and reasserted their demand that AIM Northern NV, and affiliated individuals causing harm and dissension, leave and not return.

This ask has not been respected.

Though they did initially leave, individuals have returned almost daily and have attempted to recruit others to do so, reaching out to other orgs presenting things to be the opposite of what they actually are. Fortunately there’s many solid comrades out there who are disciplined enough to reach out and validate info first. Unfortunately though, there’s many others who have fallen prey when asked to do things without being given honest and necessary info so they may make informed decisions for themselves.

On January 10th, 2022 an unknown individual arrived at the colony and went to the home of an elder demanding that camp be cleared and full control be handed over to AIMNNV within two hours time. He showed that he was armed and made culturally specific threats of violence referencing the Massacre at Wounded Knee of 1880. He claimed to be acting on behalf of a former camp visitor who is no longer welcome in the community. Then he stated that he was acting on orders from higher ups within the org (AIMGGC), though did not offer any proof of that. Two older land defenders took the time to sit with this young man and treat him with care. After he was provided evidence, he chose to leave the colony without carrying out the violence he had threatened to commit.

This is the reason we can no longer be silent. We must be honest with each other if we want this violence to stop.

The truth is, there are unacceptable acts of aggression being carried out by forces from outside of our community. AIM members and their affiliates have turned on their code to protect the people by threatening Indigenous elders with colonial violence. Others have used their Indigeneity to present themselves as if they speak for camp, they do not. Former camp members have stolen what they could and refused to relinquish their access to camp accounts, which they’ve used to intercept deliveries and divert donation funds. All of this is what the BIA and mining companies want, yes; but we must understand that these same forms of colonial violence can be co-opted by our own relatives, other Native people, and weaponized against us to perpetrate the same harms. This is what is being done and it must stop.

We wish to make it clear: No one can destroy our sacred bond to the earth here, not agitators within AIM, nor government officials, nor construction crews and hired goons. We pray for a peaceful resolution and call on the Grand Governing Council of AIM to hold their membership immediately accountable. Regardless, let it be known that we will continue standing our ground and defending our homes and we will continue supporting, protecting, and appreciating the land defenders who have come to stand with us. We ask that any experienced frontliners who wish to come, do so in a good way. We invite you and will welcome you here but ask that you follow camp agreements.

This is all we will be disclosing at this time, as we hold respect for our sister communities and continue to stand in solidarity with all other camps and frontlines. From Winnemucca to Wet’suwet’en, we resist together. Thank you.

TAKE ACTION NOW!

INDIGENOUS ACTIVISTS DISRUPT THANKSGIVING PARADE, DEMAND TRUTH OF HOLIDAY BE TOLD

Press Contact: IndigenousinPhilly@gmail.com

Image & Video Credit: Marquis Valdez

11/25/2021 – For Immediate Release – Lenapehoking (Philadelphia, PA) – As part of coordinated actions against colonialism led by matriarchs across Turtle Island, Indigenous women & femme activists disrupted the nation’s oldest “Thanksgiving” Day parade today, demanding the true story of Thanksgiving be told. Activists interrupted the parade & walked for several blocks wearing red fancy dance shawls with the messages “Land Back,” “MMIW,” & “No Thanks, No Giving” while chanting “No pride in genocide.” Though most spectators were quiet or supportive, a few heckled saying “Go home” and “Get out of Philly.” The Indigenous group included members of several tribes from across the so-called Americas, including local Algonquin & Lenape people, the rightful stewards of Lenapehoking, the Lenapes’ ancestral homeland that includes Philadelphia & NYC as well as other parts of settler-called Pennsylvania, New Jersey, Delaware, & New York.

The Thanksgiving myth perpetuated in schools across the nation celebrates unidentified “Indians” saving the early European settlers from certain death in the Eastern Coast woodlands. Holiday tables today are graced with foods indigenous to the Eastern Woodlands including turkey, squash, corn, & beans as well as other foods indigenous to the Americas including potatoes & rice. We are presented the story of a peaceful meal to honor friendship & prosperity between colonizers & those being violently colonized. And while there is certainly truth to the generosity of Native peoples, this romanticized version of a holiday feast is far from the colonial violence & genocide that the holiday truly commemorates. In 1637, Pequot elders, children, & families gathered in their villages for their annual Green Corn Dance ceremony, a harvest ceremony commemorated by dancing, feasts, fasting, & religious ceremonies. These sacred celebrations were often targets of colonial violence, as armed settlers used them to launch attacks against & murder entire family structures. The first Thanksgiving was exactly that, as English & Dutch colonizers from the Massachusetts Bay Colony surrounded a Pequot village & mercilessly murdered over 700 Pequot elders, men, women, children, & two-spirit people, setting their village on fire & shooting anyone who attempted to escape the blazes. The next day, the colony’s governor declared a day of thanksgiving to celebrate & thank God for their victory. This was the first Thanksgiving.

It has been 529 years since the invasion of the Tainos, 497 years since the first reported enslavement of a member of the Wampanoag Nation, 384 years since this Pequot massacre, & 158 years since Lincoln declared Thanksgiving a national holiday. Yet to this day Indigenous people across Turtle Island are fighting for their sovereignty including the Lenape continuing to work for recognition within their own homelands; the Anishinaabe & others fighting Line 3; the Carrizo-Comecrudo, Tohono O’odham & others fighting the border wall; and Indigenous & Afro-Indigenous people from Central & South America, the Caribbean, Africa & more held in US detention centers & terrorized by US police & military. Today we demand the true colonial history of the United States be told, including Thanksgiving.

Quotes: “Thanksgiving is bittersweet. On the one hand it is the modern continuation of a very ancient time of fellowship & community. On the other hand, the whitewashed & Eurocentric version of Thanksgiving that we’re given with our pilgrim hats & our Indian headdresses is insulting not just to this longstanding cultural tradition, but to the memories & the spirits of the people who were murdered by colonizers who wanted their land & wanted their resources.” – Kate Thorn, Lenape/Seneca

“We are taking a stand because our genocide never stopped. They still poison our water, food, & air. They still steal our children & imprison our parents in jails & detention centers. They pump drugs into our homes & blame us for the epidemics. They stop us from moving freely in our lands. They erase us from the collective minds & consciousness, killing our memories when they cannot kill us. Colonizers are further erasing the history through renaming their holidays but not changing their participation in the settler-colonial project called the United States. The only true celebration of Native people will come when the US is abolished & we are free.” – Felicia Teter, Yakama