Indigenous activist found not guilty on religious freedom grounds in border wall case

By Alisa Reznick
Published: Wednesday, January 19, 2022 - 10:30pm
Updated: Friday, January 21, 2022 - 1:34pm

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Amber Ortega and her lawyer, Amy Knight
Alisa Reznick/KJZZ
Amber Ortega and her lawyer, Amy Knight, celebrate her not guilty verdict outside the federal courthouse in Tucson on Jan. 19, 2022.

An Indigenous woman facing federal charges for blocking construction of former President Trump’s border wall in Organ Pipe Cactus National Monument was found not guilty Wednesday on religious freedom grounds. 

More than a year since she was arrested, Amber Ortega left the federal courthouse in Tucson in tears, surrounded by an elated group of supporters. 

It was the second time she was in court over the two misdemeanor charges she faces for entering and refusing to leave a closed area in the park where construction was taking place. 

In court last November, she said she was praying at Quitobaquito Springs, a deeply sacred site and homestead to her Hia C-ed O’odham tribe, when she was called by her ancestors to intervene at the construction line. 

National Park Service
The pond at Quitobaquito Springs.

Her defense argued her actions should be protected by the Religious Freedom Restoration Act, known as RFRA. Lorraine Eiler, a Hia C-ed O'odham elder and historian, testified to Quitobaquito’s vital spiritual significance.

Defenses based on RFRA must prove a person's ability to practice their faith was substantially burdened by a government action. Federal Magistrate Judge Leslie Bowman ruled Ortega's defense had failed to do that, because she was still able to access the site to pray.

But in Wednesday’s hearing, her new lawyer, Amy Knight, argued the religious act in question was not prayer at Quitobaquito.  It was the act of standing at the construction line and witnessing what she saw as the destruction of her ancestral land.

"This is not a culture and religion that can just be processed anywhere," she said. "The exercise of religious belief here was entering this area ... and being present for that."

She said that meant the court's initial analysis of whether the government substantially burdened Ortega's faith was missing elements, and should be reconsidered. She said if the government's primary interest was safety, they had other options than to arrest Ortega, and that prosecuting her prevented her exercise of faith. 

Assistant U.S. Attorney Vincent J. Sottosanti said Judge Bowman's initial ruling on the use of the law should remain intact.

"It's essentially the same argument," he said. "The facts have not changed."

Sottosanti argued arresting Ortega was a "last resort” and said the road closure had been carried out in the interest of public safety and she was free to protest outside that area. He said RFRA is normally a "shield" from a government action, but Ortega was using the law as a "sword" to stop a government action.

After less than an hour of arguments, Judge Bowman agreed that the court’s initial analysis had failed to consider key facts. With those in mind, she said, prosecuting Ortega “did impose a substantial burden on the exercise of her religion.” She said the government failed to prove a compelling interest in its actions and did not use the least restrictive means to stop her protest.

Alisa Reznick/KJZZ
Amber Ortega looks on during a press conference in November 2021 about her case.

Gasps and crying filled the courtroom when Ortega's “not guilty” verdict was announced. 

Knight said the decision was a positive step forward.

“One thing it tells us is that the religion of Indigenous people are taken seriously,” she said. “And their religion, their culture, their ancestral ways, that is covered by this protection.” 

Ortega said beyond her own relief, she sees the verdict as an acknowledgement for all Hia C-ed O’odham — a tribe not federally recognized and once considered extinct. 

“Hia C-ed O’odham was in a federal courtroom,” she said. “This means that we’re alive, we’re active, we’re fighters, we have a voice, we’re not an erased tribe.”

Government prosecutors did not immediately respond to requests for comment.

Supporters of Amber Ortega
Alisa Reznick/KJZZ
Supporters of Amber Ortega hold signs of support during a rally across the street from the federal courthouse in downtown Tucson on Nov. 23, 2021.