Indigenous wall protester's case to resume next year with new religious freedom defense

By Alisa Reznick
Published: Monday, December 13, 2021 - 5:15pm
Updated: Monday, December 13, 2021 - 7:50pm

Audio icon Download mp3 (970.76 KB)

Amber Ortega
Alisa Reznick/KJZZ
Amber Ortega speaks to a crowd of media and supporters during a press conference and rally in downtown Tucson on Nov. 23, 2021.

An Indigenous protester facing federal misdemeanor changes for physically blocking construction machinery at a border wall site in Organ Pipe Cactus National Monument last year will have her case carry over to 2022.

Amber Ortega is a member of the Tohono O'odham Nation and a Hia C-ed O'odham descendent, a related tribe that isn't recognized by the U.S. government.

Last month in court, she testified her beliefs drove her to the construction line that morning in September 2020 as the wall got closer to Quitobaquito Springs, a sacred site and historic Hia C-ed O'odham homestead. She said she was praying at the spring that morning, and her defense attorney, Paul Gattone, argued her actions should be protected under the Religious Freedom Restoration Act. 

But Federal Magistrate Judge Leslie Bowman ruled a religious freedom defense could not be used to determine Ortega's guilt or innocence, because construction did not significantly hinder Ortega’s ability to practice her faith. This month, Tucson defense attorney Amy Knight took over her case.

"There was a much broader spiritual practice going on here," she said. "Not only would the ability to exercise her religion at that sacred site be disrupted by the construction but also, more importantly, the act of defending her sacred lands is itself an exercise of religion." 

That argument is the basis of a motion Knight filed challenging the judge’s findings on the use of the Religious Freedom Restoration Act. In 2019, Knight successfully used the same religious freedom law to defend Scott Warren, a volunteer with the aid group No More Deaths who faced federal charges for providing food and water to migrants crossing Arizona's harsh desert borderland. 

Bowman was expected to issue a final verdict in Ortega's case this week on Dec. 15. But with Knight's new motion accepted, a new hearing is scheduled for Jan. 19.