Over Tribal Objection, U.S. Government Sets New Execution Date for Sole Native American on Federal Death Row

The U.S. gov­ern­ment has set an August 26, 2020 exe­cu­tion date for the sole Native American on fed­er­al death row, against the wish­es of his tribe, the vic­tims’ fam­i­ly, and the local U.S. Attorney’s office that pros­e­cut­ed the case.

On July 29, 2020, the Federal Bureau of Prisons issued a notice of exe­cu­tion to Lezmond Mitchell, a mem­ber of the Navajo Nation con­vict­ed of the stab­bing deaths of a woman and her nine-year-old grand­daugh­ter on trib­al lands. If the exe­cu­tion is car­ried out, it would be the first time in more than a half-cen­tu­ry that the fed­er­al gov­ern­ment has exe­cut­ed any Native American for an offense com­mit­ted on trib­al lands against oth­er mem­bers of his tribe.

The fed­er­al Major Crimes Act pro­hibits the gov­ern­ment from seek­ing the death penal­ty against Native Americans for mur­ders com­mit­ted on lands des­ig­nat­ed as ​“Indian Country” with­out the pri­or con­sent of the tribe. However, before Mitchell’s tri­al, Navajo Nation offi­cials wrote a let­ter to the fed­er­al pros­e­cu­tor explain­ing that the ​“the tak­ing of human life for vengeance” is counter to Navajo cul­ture and reli­gion and they opposed the death penal­ty for Mitchell. The vic­tims’ fam­i­ly and local fed­er­al pros­e­cu­tors also opposed seek­ing the death penal­ty in the case. Nonetheless, then-Attorney General John Ashcroft direct­ed the gov­ern­ment to seek the death penal­ty under what fed­er­al judges described as a ​“loop­hole” in the Major Crimes Act — a pro­vi­sion of the Federal Death Penalty Act that per­mit­ted fed­er­al pros­e­cu­tors to pur­sue the death penal­ty for the less­er crime of ​“car­jack­ing result­ing in death.” 

Navajo Nation Council Delegate Carl Slater called the government’s attempt to exe­cute Mitchell a threat to trib­al sov­er­eign­ty. ​“This com­plete­ly con­flicts with our val­ues,” he said. ​“The gov­ern­ment has an oblig­a­tion to express our val­ues and reflect them. That’s not just to our cit­i­zens, that’s to oth­er sov­er­eigns that have these relationships.”

Mitchell was one of five pris­on­ers the Department of Justice sought to exe­cute when it announced in July 2019 that it intend­ed to resume fed­er­al exe­cu­tions. He was sched­uled to be put to death December 13 — the sec­ond of three pris­on­ers fed­er­al pros­e­cu­tors sched­uled for exe­cu­tion that week. However, Mitchell already had an appeal pend­ing in fed­er­al court when his exe­cu­tion was sched­uled, and the U.S. Court of Appeals for the Ninth Circuit stayed his exe­cu­tion so it could hear argu­ment and decide that appeal. 

Mitchell’s appeal chal­lenged his con­vic­tion and death sen­tence on the grounds that they were the prod­uct of anti-Native American bias in his case. He argued that fed­er­al pros­e­cu­tors had improp­er­ly exclud­ed Native-American prospec­tive jurors from serv­ing on his case and then made racial­ly deroga­to­ry argu­ments to the jury. He fur­ther argued that Arizona law, which pro­hib­it­ed the defense from inter­view­ing jurors, uncon­sti­tu­tion­al­ly pre­vent­ed him from inves­ti­gat­ing and pre­sent­ing evi­dence of juror bias. Mitchell sought to reopen his chal­lenge based upon new U.S. Supreme Court deci­sions that per­mit­ted defen­dants to present state­ments by jurors as evi­dence that the ver­dict against him was influ­enced by racial stereo­types or animus. 

On May 1, 2020, a three-judge pan­el of the U.S. Court of Appeals for the Ninth Circuit turned down Mitchell’s appeal, but two of the judges wrote sep­a­rate­ly to crit­i­cize the fed­er­al gov­ern­ment for attempt­ing to execute him.

Judge Morgan Christen wrote, ​“It is worth paus­ing to con­sid­er why Mitchell faces the prospect of being the first per­son to be exe­cut­ed by the fed­er­al gov­ern­ment for an intra-Indian crime, com­mit­ted in Indian Country, by virtue of a car­jack­ing result­ing in death.” Quoting trib­al offi­cials, she said ​“Navajo ​‘cul­ture and reli­gion teach­es us to val­ue life and instruct against the tak­ing of human life for vengeance.’” Although fed­er­al law gave the gov­ern­ment the dis­cre­tion to cap­i­tal­ly pros­e­cute Mitchell, Christen said, “[t]he impo­si­tion of the death penal­ty in this case is a betray­al of a promise made to the Navajo Nation, and it demon­strates a deep dis­re­spect for trib­al sov­er­eign­ty. People can dis­agree about whether the death penal­ty should ever be imposed, but our his­to­ry shows that the United States gave tribes the option to decide for themselves.”

The cir­cuit court left the stay in place so that Mitchell could seek review of his claims by the U.S. Supreme Court, and the U.S. Attorney’s office in Arizona is seek­ing to lift the stay to per­mit Mitchell’s execution. 

Mitchell’s lawyers, Jonathan Aminoff and Celeste Bacchi, said at the time that ​“The Ninth Circuit’s deci­sion puts pris­on­ers like Lezmond Mitchell in an impos­si­ble posi­tion. Although the Supreme Court has held that racial bias in jury delib­er­a­tions ren­ders a tri­al fun­da­men­tal­ly unfair, Mr. Mitchell has been barred from inves­ti­gat­ing whether his jury was taint­ed by racial bias.”

Aminoff and Bacchi blast­ed the government’s announce­ment of its intent to exe­cute Mitchell, say­ing it ​“demon­strates the ulti­mate dis­re­spect for the Navajo Nation’s val­ues and sov­er­eign­ty.” “[T]he Department of Justice exploit­ed a legal loop­hole and sought the death penal­ty against Mr. Mitchell for the fed­er­al crime of car­jack­ing over the objec­tion of the Navajo Nation, the vic­tims’ fam­i­ly, and the local United States Attorney’s Office,” they said in a state­ment. ​“Under these cir­cum­stances, allow­ing Mr. Mitchell’s exe­cu­tion to go for­ward would be a grave injus­tice and an unprece­dent­ed affront to trib­al sov­er­eign­ty, and it should not be per­mit­ted to proceed.”