As Courts Deny Execution Challenges, Native Americans Nationwide Call for Clemency for Federal Death-Row Prisoner Lezmond Mitchell

As fed­er­al courts in Washington, D.C. and California declined to halt the exe­cu­tion of Lezmond Mitchell, the National Congress of American Indians, thir­teen trib­al gov­ern­ments, and more than 230 mem­bers from more than 90 U.S. tribes joined Navajo Nation President Jonathan Nez in ask­ing President Donald Trump to com­mute the death sen­tence of the sole Native American on fed­er­al death row. Native-American com­men­ta­tors also called on the pres­i­dent to spare Mitchell’s life, say­ing his exe­cu­tion against the wish­es and over the objec­tions of the Navajo Nation and the vic­tims’ fam­i­ly was an affront to the sov­er­eign­ty of all Native-American nations. 

The fed­er­al gov­ern­ment announced in July 2019 that it intend­ed to exe­cute Mitchell, a Navajo cit­i­zen con­vict­ed of mur­der­ing a Navajo woman and child on Navajo lands. However, Mitchell’s exe­cu­tion was stayed by a fed­er­al appeals court that was con­sid­er­ing a claim that his death sen­tence was taint­ed by racial bias. The gov­ern­ment issued a renewed notice of exe­cu­tion for Mitchell short­ly after car­ry­ing out three oth­er exe­cu­tions in July. The fed­er­al gov­ern­ment has nev­er before exe­cut­ed a Native American for an intra-trib­al offense on tribal lands.

On July 31, Mitchell’s lawyers, with the back­ing of the Navajo Nation gov­ern­ment, filed a clemen­cy peti­tion ask­ing President to spare Mitchell’s life. On that same day, President Nez and Vice President Myron Lizer wrote to President Trump urg­ing com­mu­ta­tion of Mitchell’s sentence. 

“The United States Department of Justice sought the death penal­ty against Mr. Mitchell despite the Navajo Nation’s pub­lic oppo­si­tion, against the express wish­es of the victim’s fam­i­ly, and osten­si­bly against the rec­om­men­da­tion of the U.S. Attorney for the District of Arizona,” the let­ter said. A com­mu­ta­tion, they wrote, ​“hon­ors our reli­gious and tra­di­tion­al beliefs, the Navajo Nation’s long-stand­ing posi­tion on the death penal­ty for Native Americans, and our respect for the deci­sion of the victim’s fam­i­ly.” Favorable con­sid­er­a­tion of the tribe’s request, they wrote, would help the Navajo Nation ​“to move for­ward in our trust of our fed­er­al part­ners and to con­tin­ue to work on the impor­tance of pro­tect­ing our People.”

The National Congress of American Indians (NCAI) — the nation’s old­est and largest orga­ni­za­tion rep­re­sent­ing American Indian and Alaskan Native trib­al inter­ests — joined Mitchell’s clemen­cy efforts on August 18. ​“The [Navajo] Nation has nev­er opt­ed in to the fed­er­al death penal­ty and has con­sis­tent­ly opposed cap­i­tal pun­ish­ment on cul­tur­al and reli­gious grounds,” NCAI President Fawn Sharp wrote on behalf of the organization. 

“The U.S. government’s deci­sion to pur­sue a death sen­tence in Mr. Mitchell’s case con­tra­venes both the Navajo Nation’s sov­er­eign pre­rog­a­tives, as rec­og­nized by Congress, and the fed­er­al pol­i­cy of trib­al self-deter­mi­na­tion in gen­er­al,” Sharp said. ​“If his exe­cu­tion is allowed to pro­ceed, it will set a dan­ger­ous prece­dent.” Commutation, she wrote, would be “[c]onsistent with the posi­tion of the Navajo Nation, and with your Administration’s stat­ed posi­tion of respect for tribal self-determination.”

Tribal rep­re­sen­ta­tives for 13 Nations — the Ely Shoshone, Pascua Yaqui, Habematolel Pomo, Swinomish, Kawe, Asa’carsarmiut, Pamunkey, Coharie, San Pascal Band of Mission Indians, Red Lake Band of Chippewa Indians, the Alaskan native vil­lages of Gakona and Kwethluk, and the Artic Village Council — also sub­mit­ted let­ters in sup­port of Mitchell’s clemen­cy peti­tion. The Ely Shoshone tribe’s August 11 let­ter wrote that the Department of Justice pur­sued and obtained the death­penal­ty against Mitchell ​“in con­tra­ven­tion of prin­ci­ples of trib­al sov­er­eign­ty and U.S. Congressional intent bar­ring fed­er­al cap­i­tal pros­e­cu­tions, absent trib­al con­sent, of intra-Indian crimes com­mit­ted in Indian country.”

More than 230 Native Americans from more than 90 tribes signed a let­ter to President Trump sup­port­ing clemen­cy. ​“Mr. Mitchell’s death sen­tence,” they wrote, ​“deeply offends the trib­al sov­er­eign­ty of the Navajo Nation as well as the val­ues of many Native American peo­ple. He should not be exe­cut­ed ….” The let­ter not­ed that the fed­er­al gov­ern­ment had ​“used a legal loop­hole to obtain a death sen­tence against Mr. Mitchell over trib­al oppo­si­tion, the only case in which it has ever done so.” It also found the case ​“trou­bling” because, it said, ​“The FBI abused Indian trib­al courts to deprive Mr. Mitchell of his fed­er­al due process rights. There are also dis­turb­ing, unre­solved issues about whether anti-Indian bias infect­ed the near­ly all-white jury that sen­tenced Mr. Mitchell to death.”

Native American com­men­ta­tors also harsh­ly crit­i­cized the fed­er­al government’s efforts to execute Mitchell. 

Navajo Nation Council del­e­gate Carl Slater wrote in an August 19 New York Times op-ed that the plans to exe­cute Mitchell are ​“a pro­found insult to Navajo sov­er­eign­ty.” ​“Since 1868, when we signed our final treaty with the United States and were allowed to return to our homes from an intern­ment camp hun­dreds of miles away, the United States has rec­og­nized our right to prac­tice self-gov­ern­ment, includ­ing han­dling many intra-Indian crim­i­nal mat­ters,” Slater wrote. He not­ed that the U.S. Supreme Court’s recent deci­sion in McGirt v. Oklahoma had ​“reaffirm[ed] the sov­er­eign­ty of trib­al nations in Oklahoma” and that the U.S. appears to be ​“tak­ing stock of its his­to­ry of racial injus­tice, includ­ing the many trau­mas per­pe­trat­ed against American Indians.” In these cir­cum­stances, he wrote, “[t]o car­ry out Lezmond Mitchell’s exe­cu­tion, despite the pro­found infringe­ment on trib­al sov­er­eign­ty that his case rep­re­sents, would be a grave injustice.”

Dakota/​Lakota Sioux trib­al lawyer Ruth Hopkins’ com­men­tary the same day in The Appeal called the planned exe­cu­tion ​“an unprece­dent­ed act of fed­er­al over­reach” that would ​“sub­vert Native nations’ con­sti­tu­tion­al­ly rec­og­nized inher­ent right to self-gov­ern.” Mitchell’s exe­cu­tion ​“against the will of the Navajo Nation” by employ­ing car­jack­ing as a loop­hole to the fed­er­al law that sub­jects Native Americans to the fed­er­al death penal­ty only with the pri­or con­sent of their tribe, ​“only per­pet­u­ates this country’s dread­ful his­to­ry of colo­nial vio­lence and oppres­sion of Indigenous peo­ples. It fur­thers geno­cide still being com­mit­ted against them and is a breach of trust that dam­ages the gov­ern­ment-to-gov­ern­ment rela­tion­ship that cur­rent fed­er­al pol­i­cy claims to aspire to.”

On August 15, 2020, the United States District Court for the District of Columbia dis­missed a chal­lenge to the fed­er­al government’s use of pen­to­bar­bi­tal brought on behalf of fed­er­al death-row pris­on­ers. Then, on August 19, the U.S. Court of Appeals for the Ninth Circuit refused to stay Mitchell’s exe­cu­tion based on his argu­ment that the government’s exe­cu­tion process vio­lat­ed pro­vi­sions of the Federal Death Penalty Act. Mitchell has filed an appli­ca­tion in the U.S. Supreme Court to stay his exe­cu­tion to con­sid­er his claim that he was improp­er­ly pre­vent­ed from inter­view­ing jurors to uncov­er evi­dence of racial bias in his case. His clemen­cy peti­tion is still pend­ing before the U.S. Pardon Officer.