Judge Leslie Bowman will hear oral arguments to reconsider usage
of the Religious Freedom of Restoration Act (RFRA) defense.
PRESS CONTACT: Vana Lewis (520-993-9390)
TUCSON, AZ — Judge Leslie Bowman has granted a hearing to reconsider the Religious Freedom of Restoration Act (RFRA) defense. This will ultimately delay the verdict originally scheduled to come by December 15, 2021. Oral arguments will be presented on January 19, 2022, at 11am AZ at the Tucson Federal Courthouse.
On November 4, Hia Ced O’odham Land Defender, Amber Ortega, appeared in court for federal charges for defending O’odham sacred site, A’al Vappia. After the trial on November 18, Judge Bowman ruled that evidence of religious beliefs and practices would only be considered for mitigation in sentencing, not in consideration of guilt or innocence. Judge Bowman’s agreement to revisit the issue results from a motion filed on behalf of Amber’s attorney, Amy Knight, who represented Scott Warren with a successful RFRA defense, and O’odham and Indigenous-led efforts that mobilized around Amber. Additionally, Judge Bowman released Amber from her pretrial services—though, this is just a first step in ensuring her wellbeing. This gesture signals the people’s cries for Amber’s charges to be dropped are being heard by the Court.
Attorney Amy Knight found that the November 18 Court Order had three significant errors:
The RFRA analysis was applied to the wrong government action. This is not a case about whether the government may build the wall or close part of the park. The Court needed to evaluate Amber’s religious actions in which she placed her body on the line for her sacred land, and whether the government may choose to bring federal criminal charges against her for those actions.
The Order misinterpreted Amber’s religious actions. The Court understood Amber’s religious actions on September 9, 2020 far too narrowly when it wrote that Amber had access to Quitobaquito Springs and could have just prayed there. Amber’s placing her body in front of machinery that would desecrate her sacred lands, which she did while singing and praying, was itself a fundamentally religious act In defending the land, Amber was doing what her religion calls for and the government has “no right to bring criminal charges against her for doing so.”
The Order misunderstood RFRA’s “substantial burden” requirement. The Court ruled that because Amber had physical access to the Quitobaquito Springs, there was no “substantial burden” on her exercise of religion, a finding required for the RFRA defense to succeed. But the relevant burden is not in restrictions on access to sites; it is in the effects of the criminal prosecution itself. Forcing Amber to endure federal criminal proceedings and possible fines and imprisonment for her religious actions when protecting her homelands is a textbook “substantial burden”.
The motion goes on to remind the Court that President Biden has since ceased construction of the Border Wall and Amber is only asking not to be punished criminally for her religious activities, not stop construction. Indigenous peoples predate European colonists and their freedom of religion needs to be respected. RFRA is to protect everyone, “not only the religions of white settlers.”
Our team is grateful for the community efforts that have led to this favorable reconsideration. Stay tuned for more information. Thank you!
Please continue to sign and share the petition to drop Amber’s charges: actionnetwork.org/petitions/protectamberortega
Please also continue to send letters of support for Amber to: firstname.lastname@example.org
In the event Amber is found guilty and faces sentencing, these letters are crucial for the sentencing memo presented to the Judge.
Water Protector Legal Collective Communications Coordinator, Nizhoni Begay
Service to the People