Tohono O’odham woman found not guilty in border wall protest

A judge ruled that a Tohono O’odham woman is not guilty of criminal action in protesting border wall construction on her ancestral land, saying the prosecution imposed a substantial burden on the exercise of her religion.

In issuing the verdict Wednesday, U.S. Magistrate Judge Leslie Bowman reversed her previous ruling that Amber Ortega couldn’t use the Religious Freedom Restoration Act as her defense.

“This is our land, and our ways are not wrong,” said Ortega to a group of supporters and reporters outside the Evo A. DeConcini U.S. Courthouse in Tucson after the verdict. “We, today, again defended our culture, our ways, our songs, our locations, our mountains, our sacred sites. Today was a victory for our people.”

Ortega was arrested and charged with the misdemeanors of interfering with agency function and violating a closure order, after refusing to leave a construction site on Sept. 9, 2020, in Organ Pipe Cactus National Monument, about 150 miles southwest of Tucson, where contractors were building more than 40 miles of 30-foot-tall steel border wall.

The site, which was closed to the public, is about one-eighth of a mile from Quitobaquito Springs, an ancient watering hole that’s sacred to the O’odham, where Ortega had been praying when she heard the construction vehicles and says she felt compelled to protect the land.

After a bench trial in November, Bowman ruled that Ortega was unable to prove that the area’s closure and a federal ranger telling her to leave the construction zone imposed a substantial burden on her ability to engage in religious activities, since she did have access to Quitobaquito Springs.

In a new motion, Ortega’s lawyer argued that the judge’s understanding of what constituted Ortega’s religious actions had been too narrow and that defense of the land itself was a part of her religious practice.

Ortega’s religious actions were not confined to praying at the spring, which she had access to, but included defending her sacred land from destruction, said defense attorney Amy Knight.

Assistant U.S. Attorney Vincent J. Sottosanti said his argument was the same as during the bench trial, that religious freedom should not be used as Ortega’s defense. He said the law doesn’t give people the right to interfere with the federal government’s ability to “modify, improve or use its own land however it sees fit,” within the law.

“There aren’t any new facts. There’s no new evidence. There’s no new law,” Sottosanti told the judge on Wednesday.

He added that public safety was the government’s compelling interest in removing Otega from the construction zone, and that she left them no choice but to arrest her.

To that argument, Knight said the government didn’t show how Ortega’s presence at the construction site posed a danger. Officials could have allowed her to stand on the side of the road, or they could have temporarily stopped construction, Knight said, pointing out that the construction did in fact stop when they were arresting Ortega.

Bowman agreed with the defense, saying the government did not use the least restrictive means possible.

“The court has recognized actions of Indigenous people defending their land as an exercise of religion,” Knight said. “I thought maybe that would have been a given, but it clearly wasn’t.”

Knight says there has been some recognition of Native American religion in past cases but typically in the form of ceremony rather than religiously driven action.

While this may not set a legal precedent, it does create a model for how similar cases could be defended going forward, she said.

After the ruling, supporters of Ortega gathered outside the courthouse to talk about the importance and meaning of the ruling, speaking in both English and Oʼodham.

“She went in as a girl and came out a woman, fighting for all of our rights, for religion,” said Tohono O’odham member Mary Garcia to the crowd. “Please understand, we’re still here. And this is what it takes to let them know we love our culture. We love our language. We love our religion.”

While Wednesday’s ruling is a step in the right direction, it’s not enough, Knight said.

“What happened here is that we convinced the government that they can’t actually put her in jail for speaking truth to them, to the officials and construction workers,” Knight said. “But they’re still doing whatever they want. The construction of the wall is mostly wrapped up under the Biden administration, but the general attitude of entitlement is here to stay.”