Ignoring Tribal Sovereignty, Federal Government Executes Native American Death-Row Prisoner Lezmond Mitchell

Over the objec­tions of Native American lead­ers across the coun­try, the fed­er­al gov­ern­ment on August 26, 2020 exe­cut­ed Lezmond Mitchell (pic­tured), the sole Native-American pris­on­er on fed­er­al death row. Mitchell, a Navajo cit­i­zen, became the first Native American exe­cut­ed by the fed­er­al gov­ern­ment for a crime com­mit­ted against a mem­ber of his own tribe on tribal lands. 

The Navajo Nation gov­ern­ment has long opposed the death penal­ty as incon­sis­tent with its cul­ture and tra­di­tions and repeat­ed­ly object­ed to the U.S. Department of Justice’s deci­sion to seek and car­ry out the death penal­ty for a crime com­mit­ted on its lands. As Mitchell’s exe­cu­tion date approached, the Navajo Nation urged the fed­er­al gov­ern­ment to respect its sov­er­eign­ty by grant­i­ng Mitchell clemen­cy. The National Congress of American Indians, 13 trib­al gov­ern­ments, and Native Americans from more than 90 tribes across the coun­try sup­port­ed Mitchell’s request that his death sen­tence be com­mut­ed to life with­out parole. However, fed­er­al pros­e­cu­tors pushed for­ward with his exe­cu­tion, which was car­ried out even though President Trump and the U.S. Pardon Attorney nev­er issued a deci­sion on his clemency application.

Navajo lead­ers called the exe­cu­tion ​“a sad day for fam­i­ly mem­bers, rel­a­tives, and friends of two Navajo fam­i­lies and for the Navajo Nation as a whole.” In a state­ment issued on August 27, Navajo Nation President Jonathan Nez and Vice President Myron Lizer wrote: ​“The Navajo Nation’s posi­tion, from the begin­ning, was to advo­cate for the sov­er­eign sta­tus of the Nation. Our deci­sion not to accept the death penal­ty in fed­er­al cas­es remains a Navajo deci­sion, but in this instance the fed­er­al gov­ern­ment ignored the Navajo Nation. This is an affront to our Nation because we should be the ones to decide these mat­ters. The fed­er­al gov­ern­ment charged a crime that was added in 1994 to the Federal Death Penalty Act and blind­sided the Navajo Nation by using this to side­step the Navajo Nation’s position.”

For near­ly a cen­tu­ry and a half, fed­er­al law has rec­og­nized the sov­er­eign­ty of Native American tribes to adju­di­cate and pun­ish major crimes com­mit­ted by and against their cit­i­zens on trib­al lands. The Major Crimes Act, enact­ed in response to a U.S. Supreme Court rul­ing in 1883, pro­hibits fed­er­al pros­e­cu­tors from cap­i­tal­ly pros­e­cut­ing Native Americans for mur­der­ing fel­low tribe mem­bers on trib­al lands. On July 9, 2020, the Supreme Court reaf­firmed trib­al sov­er­eign­ty over such crimes, rul­ing that the state of Oklahoma had no juris­dic­tion to pros­e­cute major crimes com­mit­ted by and against mem­bers of the Muscogee (Creek) Nation with­in the bor­ders of the Creek Reservation. However, pre­vent­ed from seek­ing the death penal­ty against Mitchell for mur­der, fed­er­al author­i­ties cap­i­tal­ly charged him for the crime of ​“car­jack­ing result­ing in death.”

“[O]ur col­lec­tive voice was ignored,” Nez and Lizer said. ​“We don’t expect fed­er­al offi­cials to under­stand our strong­ly held tra­di­tions of clan rela­tion­ship, keep­ing har­mo­ny in our com­mu­ni­ties, and hold­ing life sacred. What we do expect, no, what we demand, is respect for our People, for our Tribal Nation, and we will not be pushed aside any longer.”

When it became clear that Mitchell could be exe­cut­ed with­out President Trump decid­ing on the request for exec­u­tive clemen­cy, Mitchell asked the U.S. District Court for the District of Columbia to halt his exe­cu­tion to allow enough time for con­sid­er­a­tion of his clemen­cy appli­ca­tion. However, the court denied this emer­gency request on the day of the exe­cu­tion. The night before, the Supreme Court had denied Mitchell’s stay appli­ca­tions in cas­es chal­leng­ing state laws block­ing Mitchell from inter­view­ing jurors about anti-Native American bias and chal­leng­ing the fed­er­al execution protocol. 

Mitchell’s exe­cu­tion began at 6:03pm EDT. Witnesses observed his chest heav­ing, his thumb tap­ping, and his stom­ach throb­bing. After ten min­utes, wit­ness­es report­ed that Mitchell stopped mov­ing and became pale. He was pro­nounced dead at 6:29pm EDT.

The reac­tion to his exe­cu­tion was mixed. Some vic­tim fam­i­ly mem­bers and the Department of Justice hailed the deci­sion as long over­due. In a state­ment, the Department of Justice assert­ed that ​“jus­tice final­ly has been served.” The broth­er and father of one of the vic­tims expressed relief that Mitchell was exe­cut­ed. A lawyer for a woman whose moth­er and daugh­ter were killed said she had opposed Mitchell’s cap­i­tal tri­al but sup­port­ed his sen­tence being car­ried out. Another fam­i­ly mem­ber who had at one time sup­port­ed the death penal­ty said he had come to oppose it and advo­cat­ed against Mitchell’s execution.

Mitchell’s cur­rent lawyers echoed the sen­ti­ment of the Navajo gov­ern­ment and oth­er Native American lead­ers. Jonathan Aminoff and Celeste Bacchi said, ​“Today, the fed­er­al gov­ern­ment added anoth­er chap­ter to its long his­to­ry of injus­tices against Native American people.” 

Mitchell’s direct appeal lawyer, Michael O’Connor said, ​“We are all infect­ed by the virus of racism, regard­less of who we are or how we look. No case made that more clear to me than the cap­i­tal tri­al of Lezmond Mitchell. … Lezmond deserved more than the racist mock­ery of jus­tice he received.”