Fourteen months have passed since Amber Ortega, a 35-year-old member of the Hia Ced O’odham tribe, was arrested for blocking border wall construction that threatened a sacred desert oasis in southern Arizona. Ortega was taken into custody along with Nellie Jo David, another Hia Ced O’odham woman, at Quitobaquito Springs, a world-famous ecosystem on the southern edge of the Organ Pipe Cactus National Monument that has been a center of cultural and spiritual tradition for the O’odham for thousands of years.
Under President Donald Trump, government contractors rumbled across Organ Pipe’s pristine desert habit in multi-ton vehicles, pumped hundreds of thousands of gallons of water from the aquifer that sustains the springs, and blew apart sections of a nearby burial ground with powerful explosives to make way for the wall. In September 2020, Ortega and David were praying at the springs when they encountered one of the construction crews. The pair sat on the crew’s vehicles and told them they were not welcome. Tactical teams of Border Patrol agents and park police were called in, and Ortega and David were arrested.
For a low-level misdemeanor usually handled with a trespassing ticket, the two women were strip-searched, shackled, and driven to a for-profit jail 130 miles away, where they were held incommunicado, without access to a lawyer, for nearly 24 hours. Early on in her case, a court-appointed lawyer told Ortega that efforts to fight her charges, which carry a maximum six-month sentence, were likely to fail. Ortega is no longer working with the attorney. While she could understand where the lawyer was coming from, for her, not fighting was not an option.
“We’ve had our rights and access to lands, to sacred sites, taken by the United States government, and this has been happening since colonization.”
“I wanted to move forward with it to bring awareness to the oppression that we as Native people, as O’odham, have endured. We have been denied our voice,” Ortega told The Intercept. “We’ve had our rights and access to lands, to sacred sites, taken by the United States government, and this has been happening since colonization.”
On Thursday, Ortega will enter a plea of not guilty in her case and make an argument to a Tucson court that the actions she was arrested for were rooted in deeply held spiritual beliefs. Ortega’s new lawyer, Tucson-based civil rights attorney Paul Gattone, believes they have strong case. “She is a young Native American woman who has strongly held beliefs, religious, and cultural beliefs — that’s why she was out there,” Gattone told The Intercept. “Because of those cultural and religious beliefs, she felt compelled to take action, and that’s what she did.”
The trial marks the first instance of the Biden administration continuing a Trump-era prosecution of a borderlands advocate in Arizona, and the second time in recent years in which an activist in the state has mounted a religious freedom defense in response to high-profile charges linked to the government’s border security apparatus. Humanitarian worker Scott Warren, whom the Trump administration accused of human smuggling for providing aid to migrants in the desert, made a successful religious freedom defense against two attempted federal prosecutions in 2019. Brought by the National Park Service, Ortega’s case has the Department of Interior prosecuting Ortega for attempting to halt the very same construction that the agency’s own top official, and first Native American secretary, Deb Haaland, spoke out about as a member of Congress.
Though President Joe Biden vowed that “there will not be another foot of wall” built under his administration, his record on Trump’s signature ambition has been mixed. In South Texas, new sections of wall are being built; in Arizona, the Justice Department is locked in a legal battle with the state attorney general, who argues that by halting wall construction in the state, the president is pursuing a project of “population augmentation” aimed at flooding the country with foreigners. In a recent Senate confirmation hearing, Biden’s pick for commissioner of Customs and Border Protection, Tucson Police Chief Chris Magnus, said he would support expanded wall construction along some areas of the border. The Senate Finance Committee will vote on Magnus’s nomination today.
At the core of Ortega’s decision to fight the case is what she describes as a “scary spiritual battle” against cultural erasure. With the 1854 Gadsden Purchase and the drawing of the modern U.S.-Mexico divide, the O’odham, which means “people” and includes multiple tribes, saw their physical world cleaved in two. In more recent years, O’odham lands in southern Arizona have been made the site of an unprecedented explosion in border militarization. While they contended with the ramped-up surveillance and law enforcement, the Hia Ced O’odham, the smallest of the O’odham tribes, waged a three-decade struggle to obtain formal recognition of their existence from the wider tribal system. Those efforts paid off in 2013, with Hia Ced O’odham officially joining Tohono O’odham Nation, though Ortega contends that the federal government’s continued treatment of O’odham lands as a war zone in need of fortification represents another failure see the Hia Ced as a people.
For thousands of years, the rare Sonoran Desert aquifer that feeds Quitobaquito Springs has provided the only source of fresh water for hundreds of miles around, making it a vital source of life and refuge for plants, animals, and people in the region. To mix concrete for the wall and spray down the dirt roads used by Trump’s construction crews, government contractors tapped into the aquifer and withdrew hundreds of thousands of gallons of water. In July 2020, just two months before Ortega and David’s arrest, National Geographic reported that in a span of just a few months, the flow of water into the springs had dropped by 30 percent, leading to the lowest water level in more than a decade. It is doubtful that the oasis will ever fully recover.
“It’s been disturbing, but we need to speak on these things because it’s our voices and our people. It’s our unity that we’re fighting for,” Ortega said. “It’s not just me. I’m not going through this by myself. I’m going through this with my people. This is generational. This is the memory of our ancestors. It’s our history. It’s our way of life.”
The road to this week’s trial has been immensely difficult for both Ortega and David. In interviews with The Intercept, the two women described how the traumatic events that accompanied their arrests stretched out for months. The arrest itself had already “felt like an extremely unsafe situation,” Ortega said. With armed men of the U.S. government asserting their authority over the land and the Native American women standing before them, the moment was fraught with dark historical overtones. In a video from the scene, Ortega could be heard imploring the agents to take their weapons away.
“This is something that we, as O’odham, we’re familiar with. They do these things,” Ortega said. “The bigger story is we’re a traumatized generation and have been living these traumas.”
During their detention at the Florence Correctional Center, a medium-security federal facility owned and operated by the private prison corporation CoreCivic, Ortega and David, 38, were initially housed in an area reserved for men, without being told what charges they were facing or how long they would be locked up. “It was like they wanted to make a show of us. They knew we were women,” Ortega said. “They walked us into a men’s area, led us into our own cage, surrounded by men, and when Nellie asked to use the restroom, he said, ‘Oh, you’re women.’ And so then he let us out.” CoreCivic denied the claim.
Once released, the pair was placed under the strict supervision of the pretrial services office of the District Court of Arizona. For their refusal to leave land that the O’odham have tread since before the United States existed, the government ordered the women to submit to at-will home inspections, repeated urine sample testing, and strict prohibitions on travel. If they failed to consent, the government could issue warrants for their arrest.
Early on, David said, she made a request to visit Puerto Peñasco, a Mexican city on the Sea of Cortez where her family members are from, to pray and collect her thoughts. “I really wanted to go to the ocean, near the Pinacates, and just pray there,” she said. “I felt like that would just do so much, because so much had been desecrated.” The government denied the request. According to David, the situation got worse from there. “This whole year they’ve treated my body as if it’s their property,” she said. “Like what we did made my body available to them 24/7, and I have not been OK with that.”
“This whole year they’ve treated my body as if it’s their property.”
The restrictions on movement, the constant check-ins, the repeated demands for her urine, and the threat that any failure to comply would result in the total negation of her freedom have felt to David like a new and intensified extension of the border surveillance that has shaped so much of the modern O’odham experience. “We’ve lived our entire lives under this heavy surveillance,” she said. “They were using our trauma against us.” David left law school to manage the continual demands of the court, but it was not enough. The pressure from the case began to take a serious toll on her mental health, triggering painful memories and unsettling reflections on the historical relationship between Native American women and the U.S. government. “I definitely needed mental help,” David said. “I was talking to everybody I know about it.”
Early on, Ortega and David were told to expect to go to trial in a couple months. That didn’t happen. “That’s how they eventually wore me down,” David said. In June, she pleaded guilty to her charges stemming from the 2020 arrest. She was fined $200.
Ortega, who decided to press on, described being similarly scarred by her experience with the government’s pretrial surveillance apparatus. “I shake when I call them,” she said. “I know I’m not doing anything wrong, but I literally shake.”
In the past year, Ortega has been pulled over several times by various government agencies while running errands and visiting family on the O’odham reservation. She has no doubt that the encounters are related to her activism. The stops in her home village are particularly disturbing. “I grew up in the village,” Ortega said. “They know who I am.”
The pressure resulting from her case became so intense that Ortega, too, took a semester off school to cope. “There was a point where it felt like every single move, every single week, there they were in some way: on the phone requesting a home visit, a UA sample, an in-office visit,” she said. “There was one thing after another.”
Often, in video calls with her pretrial service officer, Ortega was ordered to provide a guided tour of her living space. She saw her ability to participate in tribal ceremonies strangled by the government’s intrusion of her day-to-day life. “It was like I needed to be at a job and prove it and clock in,” she said. With her trial approaching, the memories of her arrest and what the moment meant has lingered in Ortega’s mind. “The day I was arrested, it was a reminder of what has already been done,” she said. “The displacement. The removals. It was hurtful to go through that, to understand the history, and then to go through that.”
“Generational trauma exists, and it’s not OK,” Ortega said. “We’re good people. We’re humble people. We get angry too, though. And we get hurt.”
Correction: Nov. 3, 2021, 1:54 p.m. ET
An earlier version of this article incorrectly reported that Ortega will face a jury. The trial will be a bench trial, without a jury.