By: Priyal Thakkar
On the morning of her arrest, Amber Ortega was praying with Nellie Jo David at Quitobaquito Springs, a sacred site where Hia C-ed O’odham families, like Ortega’s, lived before it was purchased by the National Park Service. “Quitobaquito is the reason for our survival,” she said.[1] “This place has a strong history of being a safe haven, a home,” Ortega continued.[2] Today, Quitobaquito is a popular site for tourists visiting the Sonoran Desert as well as for ecologists studying its “verdant patch” that is the only U.S. habitat for endangered species like the Sonoyta mud turtle. By the summer of 2020, however, border wall construction was well underway in the park and contractors were using dynamite to blast through the terrain. The blasting project reportedly went through Monument Hill, which is an Indigenous burial site on ancestral Tohono O’odham land.
While Ortega and David were praying, they encountered one of the construction crews rumbling across Organ Pipe’s pristine desert habit in multi-ton vehicles and blowing apart sections of a nearby burial ground with powerful explosives to make way for Donald Trump’s infamous wall. The pair sat on the crew’s vehicles and informed them that they were not welcome there. Border Patrol agents and park police were called in. Subsequently, Ortega and David were arrested for blocking a border wall construction line in the Organ Pipe Cactus National Monument in September 2020.
Indigenous-led demonstrations opposing the wall continued for months. “We planted ourselves on both sides of the road and we sang,” Ortega recalled.[3] “We took turns praying and singing and we took turns explaining ourselves, who we were, and what this land meant to our people.”[4] Following her arrest, Ortega was charged with two misdemeanors, including interfering with an agency function and violating a closure order.
In November, Ortega faced a bench trial where she argued that she acted “without hesitation” to block the border wall construction because she needed to protect the land from being desecrated. She explained to the court how the natural spring and the land surrounding it remain an important part of the life of the Hia C-ed O’odham. She argued that her actions were protected by the Religious Freedom Restoration Act which states that the federal government may not “substantially burden[] a person’s exercise of religion.”
The Religious Freedom Restoration Act was crafted as legislation for religious conservatives, but in recent years the law has been used as a defense for liberal and left-wing activists in Arizona southwestern deserts. The defendant must prove that their ability to practice their religion was “substantially burdened” by government action.[5] Judge Leslie Bowman ruled that the defense could not be used in Ortega’s case because practicing her religion at Quitobaquito was still possible.[6] Amy Knight, Ortega’s lawyer, attacked the government’s case and asked Bowman to reconsider her decision by arguing the judge misapplied the law and “overlooked facts in the case that lead [sic] the court to make ‘manifest errors.’”[7]
After hearing from Knight, Judge Bowman announced Ortega not guilty. “In light of that new evidence, the prosecution of Ortega did impose a substantial burden on the exercise of her religion,” said Bowman.[8] “The government has no compelling interest,” and the government failed to use “the least restrictive means” to keep Ortega from halting construction.[9]
Knight shined light on the importance of lawyers being creative with their arguments to protect people the law relentlessly fails to protect. “Accountability was a goal, and I knew that there will be consequences,” Ortega said.[10] “It does feel good to say that for that day, we were able to stop construction, that day we were able to stop the desecration of our sacred site. That day we were able to be Hia C-ed O’odham.”[11]
[1] https://www.azpm.org/s/92007-indigenous-woman-arrested-for-blocking-wall-construction-back-in-court/.
[2] https://news.azpm.org/safehaven/.
[3] https://news.azpm.org/safehaven/.
[4] Id.
[5] https://www.azpm.org/s/92007-indigenous-woman-arrested-for-blocking-wall-construction-back-in-court/.
[6] Id.
[7] https://www.azmirror.com/2022/01/19/native-activist-found-not-guilty-in-border-protest-after-new-arguments-on-religious-freedom-defense/.
[8] Id.
[9] Id.
[10] https://news.azpm.org/safehaven/.
[11] Id.
Priyal Thakkar is currently a 3L at Arizona State University’s Sandra Day O’Connor College of Law and works at the Academy for Justice as a Research Associate.
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